Flipside Pty Ltd and City Of South Perth
[2014] WASAT 145
•28 OCTOBER 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: FLIPSIDE PTY LTD and CITY OF SOUTH PERTH [2014] WASAT 145
MEMBER: MS N OWEN-CONWAY (MEMBER)
HEARD: 28 MAY 2014
DELIVERED : 28 OCTOBER 2014
FILE NO/S: DR 13 of 2014
BETWEEN: FLIPSIDE PTY LTD
Applicant
AND
CITY OF SOUTH PERTH
Respondent
Catchwords:
Car parking City of South Perth Town Planning Scheme No 6 Change of use from shop to cafe/restaurant for part of development lot Adequacy of private onsite car parking bays and inroad reserve car parking bays Concessions by respondent Exercise of discretion based on facts conceded Turns on own facts
Legislation:
City of South Perth Town Planning Scheme No 6, cl 1.2, cl 6, Table 6, cl 6.3, cl 7.1, cl 7.5, cl 7.5(x), cl 7.8
Local Government Act 1995 (WA), s 1, s 2, s 3, s 4
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 4, s 252, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 17, s 31, s 31(3)
Result:
Respondent's decision varied
Summary of Tribunal's decision:
Flipside Pty Ltd made application to change the use of premises comprised in a development lot at 262 Canning Highway, South Perth. The approval was granted upon the condition that Flipside Pty Ltd pay to the respondent the sum of $4,700 in lieu of an onsite car parking bay because there was a deficit of the car parking bays required for the cluster of uses operating and to be operated from the development lot (including the proposed use), as calculated by reference to cl 6.3 and Table 6 of the City of South Perth Town Planning Scheme No 6. The Tribunal held that the requirement for car parking to accommodate the total cluster of uses operating and to be operated from the development lot, including Flipside Pty Ltd's proposed changed, although not met was in all of the circumstances sufficient, pursuant to cl 6.3(4) and cl 7.5 and of the City of South Perth Town Planning Scheme No 6. Alternatively, a departure from the car parking requirements of City of South Perth Town Planning Scheme No 6 was justified pursuant to cl 7.8 of the City of South Perth Town Planning Scheme No 6. Accordingly, the City of South Perth's decision to grant the applicant approval for the change of use of premises comprised in the development lot was varied to delete the aforesaid condition.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: Mr M Scarfone (Acting as Agent)
Solicitors:
Applicant: N/A
Respondent: City of South Perth
Case(s) referred to in decision(s):
Agnew Clough Ltd v Town Planning Board (WATPAT No 1 of 1979, 1 May 1980, unreported)
Begley v Shire of Wanneroo [1970] WAR 91
Della-Vedova v The Town Planning Board (1978) (Unreported, Town Planning Court, Appeal No 137 of 1979, 8 June 1975)
Hunter & Anor and City of Rockingham [2008] WASAT 28
Moore River Company Pty Ltd and Western Australian Planning Commission [2007] WASAT 98; (2007) 57 SR (WA) 255
Randall and Town of Vincent [2005] WASAT 129
REASONS FOR DECISION OF THE TRIBUNAL:
The application
On 7 January 2014, Flipside Pty Ltd (applicant) filed an application in the Tribunal for orders against the City of South Perth (respondent). The applicant sought a review of the decision made by the respondent on 10 December 2013 to grant conditional approval to the applicant to change the use and associated signage in respect of the use of property situated at shop 6, 262 Canning Highway, Como. As will be seen, the respondent reconsidered and varied that decision on 25 March 2014. The applicant seeks a review of that reconsidered decision (reviewable decision).
The original decision
On 10 December 2013, the respondent granted approval to the applicant's change of use and associated signage of premises leased by the applicant, referred to as 'shop 6' on the plans attached to the applicant's application for approval for change of use of, dated 30 July 2013,which is part of the development lot situated at 262 Canning Highway, Como (Lot 7), within the locality of the respondent. The grant of approval was made subject to seven conditions (original decision). Conditions 1 and 3 of the original decision were the only conditions that were in issue when this application was commenced. The approval to change the use of shop 6 from 'shop' to 'café/restaurant' was granted by the respondent pursuant to the Metropolitan Region Scheme and the City of South Perth Town Planning Scheme No 6 (TPS 6). The disputed conditions of the original decision are as follows:
Condition 1 provides:
The applicant is to pay the City $4,700 as cash payment in lieu of the onsite car parking shortfall in accordance with Council Policy P315 'Car parking reductions for non-residential developments'.
Condition 3 provides:
A landowner agrees that any compensation for loss of revenue arising from the change of use to 'café/restaurant' will not be sought from the Council or Western Australian Planning Commission when the reserved land is required for upgrading Canning Highway.
Proceeding in the Tribunal
The application was the subject of a directions hearing on 22 January 2014 and was listed for mediation on 22 February 2014. The mediator made an order on 20 February 2014, inviting the respondent to reconsider its original decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Following the Tribunal's invitation to the respondent to reconsider its original decision, on 25 March 2014, the respondent varied the original decision by deleting condition 3 referred to above. The applicant did not withdraw this proceeding following the reconsideration because condition 1 to the original decision remained in place but was renumbered as condition '(2)'. By reason of the provisions of s 31(3) of the SAT Act, the reconsidered decision became the reviewable decision, the subject of the applicant's review application.
On 1 April 2014, the mediator then acting as a presiding member at a directions hearing, made directions to progress the matter to a final hearing on 29 May 2014. Further directions were made on 16 April 2014, vacating the hearing date and listing the matter for a final hearing on 28 May 2014. The final hearing commenced with an onsite inspection attended by all parties on 28 May 2014.
Documents before the Tribunal
The applicant filed the following documents:
a)the applicant's application to the Tribunal including attachments as follows:
i)notice of determination of application for planning approval dated 10 December 2013 (the original decision);
ii)minutes of ordinary council meeting of the respondent dated 10 December 2013, pages 52 to 62, inclusive of 98 (minutes);
iii)three pages of plans;
iv)applicant's letter to respondent dated 24 July 2013;
v)respondent's internal memorandum from Mr Leslie Croxford, the respondent's engineer;
vi)respondent's environmental health services planning approval comments;
vii)letter from Main Roads WA to respondent dated 19 September 2013 with attached plans and maps. (Exhibit 1)
b)the applicant's statement of issues, facts and contentions dated 13 May 2014 (Exhibit 2);
c)copy of the respondent's response filed pursuant to the Tribunal's orders made on 22 January 2014.
The respondent filed the following documents:
a)respondent's response to the applicant's application filed pursuant to the Tribunal's directions made on 22 January 2014 (same as Exhibit 3);
b)affidavit of Ms Victoria Lummer (respondent's officer) sworn on 29 April 2014 as to delay in compliance with Tribunal's orders made 1 April 2014;
c)respondent's statement of issues, facts and contentions (Exhibit 4);
d)respondent's bundle of documents including:
i)applicant's application for planning approval;
ii)Main Roads WA comment;
iii)respondent's engineering and infrastructure service comments;
iv)minutes of ordinary council meeting of the respondent dated 10 December 2013, pages 60 to 71, inclusive of 116 (minutes);
v)notice of determination dated 10 December 2013 (the original decision);
vi)application for review under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act);
vii)minutes of ordinary council meeting of the respondent dated 25 March 2014, pages 13 to 19, inclusive of 119 (minutes);
viii)notice of determination dated 25 March 2014 (the reviewable decision);
ix)Policy P315 'Car parking reductions for nonresidential development' (Exhibit 5);
e)statement of Ms Fiona Katrina Reid (respondent's counsellor) dated 12 May 2014 (Exhibit 6);
f)statement of Mr Leslie Howard Croxford (respondent's engineer) dated 14 May 2014 (Exhibit 7);
g)statement of Mr Eric James Dybdahl (respondent's planning officer) dated 15 May 2014 (Exhibit 8);
h)Copy of TPS 6 Amendment No 30 (Exhibit 9).
Jurisdiction
Section 252 of the PD Act provides:
(1)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
…
(ii)granted it subject to any condition,
the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority's decision.
The phrase 'responsible authority' is defined by s 4 of the PD Act to mean:
…
(a)in relation to a local planning scheme … the local government responsible for the enforcement of the observance of the scheme …
The reference to the local government is a reference to a government established pursuant to the Local Government Act 1995 (WA) (s 1 4). In this proceeding the respondent is the relevant local government responsible for the enforcement of the observance of TPS 6 (see also: cl 1.2 of TPS 6).
Clause 7.1 of TPS 6 provides any the change of use of land falling within TPS 6 requires the prior planning approval of the respondent. The applicant's application to the respondent was to obtain approval for the proposed change of use of shop 6, being part of Lot 7, from 'shop' being a type of use falling within the Mixed Use Commercial zone as provided for in TPS 6 (which 'shop' use was conceded by the respondent to be the subject of a grant of approval at an earlier point in time) to 'café/restaurant' being a different type of use falling within the Mixed Use Commercial zone as provided for by TPS 6. The applicant's proposed change of use of shop 6 therefore required the respondent's approval for the purposes of s 252(1) of the PD Act.
As s 252(1) of the PD Act expressly confers jurisdiction on the Tribunal to review the reviewable decision, this proceeding falls within the Tribunal's review jurisdiction as provided for by s 17 of the SAT Act.
Shop 6 and Lot 7
Lot 7 comprises a number of individual premises that operate various businesses. The applicant and the respondent agreed that the use of shop 6 as a 'café/restaurant' required seven car parking bays, as calculated by reference to cl 6.3(1) and Table 6 of TPS 6, on the basis that the applicant proposed a 30m2 dining area and a further approximately 8m2 of alfresco dining/waiting area for shop 6.
The prior approved use of shop 6 as a 'shop' required only five car parking bays for that use. The proposed change of use of shop 6, as advanced by the applicant, necessitated an increase in the provision of two car parking bays. This fact was agreed between the parties.
The relevant provisions of TPS 6
The relevant provisions of TPS 6 are as follows:
6.3Car Parking
(1)Uses listed in Table 6 must provide the number of car parking bays prescribed in that Table.
…
(3) Where a development site is used for multiple Uses, the number of car parking bays to be provided shall be the sum of the numbers calculated for each Use separately.
(4) The Council may grant planning approval for nonresidential land Uses proposing a lesser number of car parking bays than prescribed in Table 6, provided that the proposed number of car parking bays is sufficient having regard to the peak parking demand generated by the Use or Uses and any opportunities for reciprocal parking arrangements. (Tribunal's emphasis)
…
(6)When considering an application for planning approval for Uses in respect of which car parking bays are required to be provided under the Scheme, the Council shall have regard to, and may impose conditions which address:
(a)the location of any existing and proposed public or private footpath or way and any vehicle crossings;
(b)the effect the location of the bays and accessways is likely to have on pedestrian and vehicular movement both on the development site and in the adjacent street;
(c)the suitability and adequacy of proposed screening or natural planting in relation to the bays and accessways; and
(d)the number of bays which shall be provided with roof cover and the design and materials to be used for any such roof cover and supporting structures.
…
7.5Matters to be Considered by Council
In considering an application for planning approval, the Council shall have due regard to, and may impose conditions with respect to, such of the following matters, as are, in the opinion of the Council, relevant to the proposed use or development the subject of the application:
…
(x)any other planning considerations which the Council considers relevant. (Tribunal's emphasis)
7.8Discretion to Permit Variations from Scheme Provisions
(1)(a) Subject to sub-clause (2), if a development the subject of an application for planning approval does not comply with site requirements prescribed by the Scheme with respect to:
…
(v) car parking;
…
the Council may, notwithstanding that noncompliance, approve the application unconditionally or subject to such conditions as the Council thinks fit. (Tribunal's emphasis)
(b)The power conferred by this sub-clause may only be exercised if the Council is satisfied that:
(i) approval of the proposed development would be consistent with the orderly and proper planning of the precinct and the preservation of the amenity of the locality;
(ii) the non-compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the precinct or upon the likely future development of the precinct; and
(iii) the proposed development meets the objectives for the City and for the precinct in which the land is situated as specified in the precinct Plan for that precinct.
(2)The power conferred by sub-clause (1) of this clause shall not be exercised by the Council with respect to:
…
(e)the number of deficit car parking bays calculated in the manner prescribed in clause 6.3A(1)(a).
Read together, the respondent and the Tribunal, standing in the respondent's shoes, is empowered to depart from the car parking requirements of cl 6.3(1) and Table 6 of TPS 6 if the application for approval meets the requirements of cl 7.8(1)(b) of TPS 6. Further, the respondent (and the Tribunal) is empowered to consider any planning considerations the respondent considers relevant by reason of cl 7.5(x). This conferral of discretion is in addition to the discretion conferred by cl 6.3(4) of TPS 6. The Tribunal notes that the discretion to depart from the scheme requirements as to car parking as provided in cl 7.8(1) of TPS 6 does not extend to calculating the deficit of car parking when determining cash in lieu that may be imposed (see: cl 7.8(2) of TPS 6). However, that calculation falls within cl 6.3A of TPS 6 and, in this case, the Tribunal concludes that the cash in lieu provisions should have no application.
Although the provisions of cl 6.3(1) and Table 6 of TPS 6 required the car parking requirements to be met from parking bays on the development lot (Lot 7), the relevant TPS 6 provisions referred to above permit the respondent (and the Tribunal) to consider the public parking facilities immediately at the front of Lot 7 on Birdview Parade, because:
a)the respondent has at all times considered the availability of this public parking to be a relevant planning consideration as noted in the minutes and the respondent's submissions and concessions before the Tribunal (cl 7.5(x) of TPS 6); and
b)the planning principles permit consideration of limited use of existing public parking in the exercise of planning discretion (see Randall and Town of Vincent [2005] WASAT 129 (Randall); Hunter & Anor and City of Rockingham [2008] WASAT 28 (Hunter)) when assessing either whether the scheme should be departed from in respect of any parking requirements (cl 7.8(1)(a) of TPS 6) or in assessing the sufficiency of any private parking in existence or proposed, pursuant to cl 6.3(4) of TPS 6
The final hearing, concessions and Tribunal's considerations
The terms of condition 2 of the reviewable decision (previously condition 1 of the original decision), which is the subject of this proceeding, contemplates and assumes a deficiency of car parking bays as calculated by reference to Table 6 of TPS 6, consequential on the applicant's proposed change of use of shop 6 from 'shop' to 'café/restaurant'. It was agreed between the parties, and the Tribunal finds that it is a fact, that as at the date of the application and final hearing, Lot 7 accommodated 18 approved private car parking bays. Although it was advanced by the respondent at all times that the sum of the car parking bays required by all of the business uses operating from Lot 7 totalled 36, at the hearing the respondent's representatives agreed that that figure was incorrect and that the correct figure was 25. It was further agreed that the applicant's proposed change of use of shop 6 would increase the number of car parking bays required to 27 pursuant to cl 6.3 and Table 6 of TPS 6 that is, an increase of two car parking bays.
At all material times the respondent considered that the public in-road reserve car parking bays, immediately at the front of the Lot 7 (in-road car parking bays) should be taken into account when addressing the sufficiency of the 18 private car parking bays on Lot 7 in the case of the change of use proposed for shop 6 pursuant to cl 6.3(4) and cl 7.5(4) of TPS 6 and/or whether the respondent should depart from the provisions of cl 6.3(1) and Table 6 of TPS 6 when granting approval to the applicant pursuant to cl 7.8(1). In the minutes of the respondent's meetings held on 10 December 2013 and 25 March 2014 and Exhibit 3 before the Tribunal, the respondent's officers did not couch the relevance of the inroad car parking bays in terms of the discretion conferred on the respondent by cl 6.3(4) and/or cl 7.5 and cl 7.8 of TPS 6. However, in light of those provisions, the Tribunal finds that the in-road car parking bays are a relevant consideration that the respondent properly had regard to, and to which the Tribunal should have regard, either because:
a)they constitute an opportunity for reciprocal parking arrangements (given the different peaks of trade for a number of the uses operating from Lot 7) and they establish that the 18 private car parking bays are 'sufficient' for the purposes of cl 6.3(4) of TPS 6, particularly in light of the further discretion conferred by cl 7.5(x) of TPS 6; or
b)they justify a departure from the car parking requirements of TPS 6 on the facts of this particular case.
The following facts were conceded by the respondent at the final hearing and after debate:
a)At the time of the last prior application for planning approval for a use or change of use at premises within Lot 7, the respondent had calculated that the car parking requirements for all of the existing uses of all of the premises within Lot 7 amounted to 25 car parking bays.
b)The last prior application for planning approval for a use at the premises within Lot 7 occurred in 2009.
c)Read in combination, cl 6.3 and Table 6 of TPS 6, provide that the applicant's proposed change of use of shop 6 from 'shop' to 'café/restaurant' would alter the car parking bay requirements for shop 6 from five to seven car parking bays and consequentially would alter the car parking bay requirements for the cluster of business uses operating from and to operate from Lot 7, from 25 to 27 car parking bays.
d)Contrary to the respondent's reasons referred to in the minutes of its meetings on 10 December 2013 and 25 March 2014 (minutes), the applicant's application for change of use of shop 6 from 'shop' to 'café/restaurant' triggered a requirement for an additional two car parking bays for the proposed use of shop 6 and, as a consequence, an additional two car parking bays for the cluster of business uses operating from and to operate from Lot 7 from 25 to 27 car parking bays, and not 36 as was contended by the respondent at all material times in this proceeding.
e)Lot 7 comprises 18 private car parking bays (not 19 car parking bays as had been asserted in the minutes) and one motorcycle bay as at the date of the final hearing. There was an existing deficit of seven private car parking bays to service the cluster of uses operating from Lot 7, prior to the applicant's proposed change of use application that is 25 private car parking bays required as at 2009, less18 private car parking bays approved and in existence on Lot 7.
f)The in-road car parking bays in the immediate vicinity of Lot 7 and shop 6 constitute 25 car parking bays as at the date of the final hearing (and not 24 car parking bays as asserted in the minutes).
g)The requirement of 27 car parking bays to accommodate all of the business uses operating from and to operate from Lot 7, upon the applicant's proposed change of shop 6 is as required by TPS 6 and referred to above, may be modified by a notional allocation of the in-road car parking bays referred to in (f) to above, the cluster of uses operating from and to operate from Lot 7.
h)10 of the 25 in-road car parking bays were expected by the respondent to be utilised by members of the public trading at the cluster of businesses operating from Lot 7.
i)The respondent considered the number of available car parking bays to accommodate customers of the business uses operating from and to operate from Lot 7 was 28 (not 29 as asserted in the minutes) that is, 18 private car parking bays and 10 inroad car parking bays.
The concessions were made by the respondent after the luncheon adjournment on the day of the final hearing, during which time the respondent's representative conferred with the respondent's officers to clarify various factual issues including the date of the last prior application for approval for change of use of any of the premises at Lot 7.
It was not in issue, insofar as the 18 private car parking bays or 10 of 25 inroad car parking bays were concerned, that the respondent considered those car parking bays to comply with the factors referred to in cl 6.3(6) and cl 7.8(1)(b) of TPS 6. In this particular case, it was accepted and indeed expected by the respondent, that the inroad car parking bays would be used by the public to trade at the cluster of businesses operating from Lot 7, and that it was reasonable for that to occur. Certainly, the 25 inroad car parking bays were very conveniently positioned and, viewed objectively, they were entirely suitable for use by customers of the cluster of businesses at Lot 7.
Based upon the respondent's concessions, the Tribunal concludes that the existing 18 private car parking bays and 10 of the 25 in-road car parking bays are sufficient within the meaning of that expression in cl 6.3(4) of TPS 6 or justify a departure from the requirements for parking of TPS 6 pursuant to cl 7.8 of TPS 6 when determining the applicant's application for approval to change the use of shop 6. Accordingly, orders will be made to vary the reviewable decision by the deletion of condition 2 of the reviewable decision. The Tribunal concludes that this is the correct and preferable decision in this proceeding, based on the respondent's concessions.
In any event, the Tribunal concludes on the evidence, that the 18 private car parking bays and the 10 of 25 inroad car parking bays are sufficient within the meaning of that expression in cl 6.3(4) of TPS 6 so as to approve the applicant's application for change of use of shop 6 without the impositions of any conditions concerning parking requirements. The complete details of the approved business uses operating from Lot 7 were not put before the Tribunal. The respondent provided some information of these uses which, as at the date of the hearing, differed to what the Tribunal viewed onsite at the commencement of the final hearing. In the minutes dated 10 December 2013, the existing uses were expressed by the respondent's officers as:
Tenant
Approved
Actual Operating Hours
Australia Post
1995
Monday Friday 8.30 am 5.30 pm Saturday 9 am 12 noon
Sunday closed
Empire Pizza
2008
Sunday Thursday 4.30 pm 9.30 pm Friday Saturday 4.30 pm 10.30 pm
Mother's Kitchen Curry House
2008
Monday Sunday 11 am 3 pm and
5 pm 10 pm
There is no reference to the IGA store that was in operation when the Tribunal attended in the company of the parties to view the site.
Use of shop 6 as a shop had been approved in the1960s according to the respondent. The actual hours of that shop's operation are noted in the minutes of 10 December 2013 as 8.30 am to 5.30 pm, Monday to Friday, and Saturday 8.30 am to 2.30 pm.
Mr Fleming, on behalf of the applicant, gave evidence that, based on his knowledge gained from the operation of his other 'Flipside' shops (similarly named and which supply the same product and services as proposed to be supplied from shop 6), the proposed use of shop 6 by the applicant would likely result in Friday after 6 pm, and Saturdays, and particularly Sundays around lunchtime, being the busiest times for the business and, by inference, those times would likely see the peak demand for parking generated by the proposed use of shop 6. The Tribunal notes that the proposed use of shop 6 includes a dining area but Mr Fleming gave evidence that food is also ordered at the shop and taken away from the shop and also ordered, presumably by telephone, and collected from the shop. Further, Mr Fleming gave evidence that the applicant's business model promoted trade from within the walking distance of shop 6. The Tribunal infers that not all customers are likely to park and dine in at shop 6.
The Tribunal finds that the peak demand for parking likely to be generated by the applicant's proposed use of shop 6 is different to that of the Australia Post shop given the latter's opening hours.
The anecdotal evidence of Councillor Reid, that peak demand times for the IGA store were between 4 pm and 6 pm Monday to Friday, and between 10 am to 12 noon on Saturday; and that at those times parking became problematic at Lot 7 so that she often had to wait for a parking bay, was the only evidence put before the Tribunal of the peak demand for parking generated by the IGA store. The Tribunal finds that the applicant's peak trading hours are different to those of the IGA store based upon the evidence of Mr Fleming and Councillor Reid. The Tribunal finds that it may be inferred that there is a high degree of reciprocal use of the parking facilities by the customers of the IGA store and the Australia Post store and the applicant's proposed use of shop 6. This reciprocation applies to the 18 private car parking bays as well as to the 10 of 25 inroad car parking bays, in the Tribunal's view.
There is insufficient evidence before the Tribunal to determine conclusively what the peak trading hours are for Mother's Kitchen and Empire Pizza. However, given the respondent's evidence of their opening hours, the Tribunal infers that they are more likely to be similar to the applicant's proposed peak trading hours. There was no evidence of any dining areas in either business or to the size of the dining areas (if any at all). The Tribunal finds that although the proposed use of shop 6, Mother's Kitchen and Empire Pizza may share peak demand times (that is, after 6.00 pm until late, and probably at lunchtimes on Saturday and Sunday) the car parking demands generated from those operations is not likely to be as onerous as say that generated from the IGA store in terms of length of parking. The Tribunal notes that both Empire Pizza and Mother's Kitchen provide takeaway food.
The Tribunal finds, on the evidence before it, that the peak parking demands, the likely duration of parking during peak parking demands generated by the proposed use of shop 6, Mother's Kitchen and Empire Pizza, differ from that of the IGA store and Australia Post and there is likely a high degree of reciprocal use by customers of each of the existing uses and the applicant's proposed use of shop 6, of the 18 private car parking bays, as well as the 10 of 25 inroad car parking bays. Given the differing peak demand times of the two groups of business uses operating from or to operate from Lot 7, the Tribunal considers that, on the evidence before the Tribunal, the 18 private car parking bays are sufficient within the meaning of that expression in cl 6.3(4) of TPS 6 when taking into account 10 of the 25 inroad car parking bays, for the accommodation of customers of the business uses operating from Lot 7
Further, the Tribunal considers that in any event a departure from the provisions of cl 6.3(1) and Table 6 of TPS 6 is the correct and preferable decision on the facts of this case. As stated, at all times the respondent has asserted that some use of the inroad car parking bays by customers of the businesses at Lot 7 is expected and reasonable. The Tribunal finds that the respondent's assertion is consistent with general planning principles (see Randall and Hunter).
On the facts as found, the Tribunal concludes that the correct and preferable decision is that condition 2 to the reviewable decision is deleted and the reviewable decision is varied to that extent consistently with the orders made below.
Other matters TPS 6 and Amendment No 30 of TPS 6
It should also be noted that as at the date of the final hearing, TPS 6 was the subject of a proposed amendment to delete cl 6.3 and replace it with a new cl 6.3 and cl 6.3A (Amendment No 30). In terms of the number of car parking bays that are required for a use, the proposed change in terms of Amendment No 30 made no material difference to this proceeding. Although the respondent failed to produce any evidence of the stage that the amendment process had reached, the respondent asserted that Amendment No 30 had received Ministerial approval and was awaiting final publication in the Western Australian Government Gazette (Government Gazette). There was no objection from the applicant to this statement and the Tribunal accepted the same.
As such, Amendment No 30 was always a factor to be given significant weight in this proceeding (Begley v Shire of Wanneroo [1970] WAR 91 at [95] per Virtue SPJ and Della-Vedova v The Town Planning Board (1978) (Unreported, Town Planning Court, Appeal No 137 of 1979, 8 June 1975) at [10] per Brinsden J; Agnew Clough Ltd v Town Planning Board (WATPAT No 1 of 1979, 1 May 1980, unreported); Moore River Company Pty Ltd and Western Australian Planning Commission [2007] WASAT 98; (2007) 57 SR (WA) 255 at [159]). Further, cl 7.5(a) and (b) of TPS 6 required the respondent (and the Tribunal) to have regard to an amendment such as Amendment No 30.
In any event, Amendment No 30 was published in the Government Gazette on 12 September 2014, upon which event TPS 6 was amended in terms of Amendment No 30.
For these reasons the Tribunal has applied TPS 6 as amended on 12 September 2014 (in terms of Amendment No 30) in formulating the Tribunal's decision. However, as stated, Amendment No 30 made no material changes to the car parking requirements arising from the relevant uses in issue in this proceeding or to the additional matters that could be taken into account when forming a decision in this matter.
Other matters - respondent's reasoning as to deficiency of car parking bays
At all times in this proceeding the applicant had raised the primary issue of whether in fact or not there was any deficiency in the number of car parking bays as required by TPS 6 consequential upon a change of use of shop 6 from 'shop' to 'café/restaurant', and the extent of any deficiency. The respondent at all times asserted a substantial deficiency of car parking bays. The respondent reasoned that the deficit of car parking bays was calculated as follows:
36 car parking bays required
= deficiency of seven car parking bays
Less 19 private car parking bays
Less 10 in-road car parking bays
The respondent reasoned further that an additional two car parking bays required by a change of use of shop 6 to a café/restaurant, resulted in a deficit of nine car parking bays for the cluster of businesses (including the applicant's proposed business) at Lot 7.
No clear explanation was provided to the Tribunal or the applicant as to how the need for 36 car parking bays arose for existing uses at Lot 7. The respondent failed to identify the number of car parking bays which were required by each of the uses operating from Lot 7 at the time of each approval of that use. The respondent failed to provide the last approval for a use for each of the premises currently comprised in Lot 7. After some debate it appeared to the Tribunal that the respondent had calculated the car parking requirements for each use of each of the premises within Lot 7 and applied the current requirements of cl 6.3(1) and Table 6 of TPS 6. In any event, the respondent conceded that the correct figure on which to base its decision in this matter, was 27 car parking bays, having regard to the applicant's proposed change of use.
Other matters - construction of an additional private car parking bay
The applicant asserted that the owner of Lot 7 was willing to mark out and have surveyed an additional car parking bay on Lot 7 as detailed in the plans. The Tribunal did not need to consider this proposal for the reasons referred to above. However, the Tribunal makes the following findings and comments on the evidence.
The applicant's proposal was the subject of the view onsite at the commencement of the final hearing. The respondent's engineer, Mr Croxford swore an affidavit concerning this issue, as did Councillor Reid and Mr Dybdahl. The respondent's objection to the applicant's proposal was based entirely upon safety, all other technical requirements of TPS 6 having been met or capable of being met with adjustment to the plan of the proposed car park to the respondent's satisfaction by the time of the on site hearing. On site, the Tribunal and those present, observed a small and a large delivery truck delivering goods to the rear of the IGA store in the central area at the rear of Lot 7. At that time, cars that were parked to the west and centrally along the rear boundary of Lot 7 could not exit the carpark. However, the unloading took very little time. In neither case was the area marked out for the applicant's proposed car parking bay would not have interfered with the delivery of goods to the IGA store. Mr Fleming gave evidence that the applicant's deliveries took place late in the evening and would not place any burden on the use of the 18 private car parking bays.
Although Mr Croxford agreed that 'safe' and 'safely' were essentially subjectively used in his assessment and that there was no lack of safety as viewed by the Tribunal on that morning, he stated at the final hearing that the Tribunal did not observe the movement of pallets and the use of the forklift by the IGA staff and therefore should not be satisfied that the applicant's proposed car parking bay was safely positioned.
However, the Tribunal concludes that the stacking of pallets, the parking of the forklift, the removal of the large bins out of the parking areas to a safe location to the east of the rear of Lot 7, and the positioning of the SULO wheelie bins out of the parking area and along the north-western side of the rear of Lot 7, as observed by the Tribunal on the site visit, allowed for egress and ingress to the rear of other businesses operating at Lot 7 and allowed for use of all existing 18 private car parking bays and the motorcycle bay. The Tribunal concludes that in the absence of any supported expert evidence, the likelihood of any interference in the area of the applicant's proposed car parking bay by the forklift operator or by delivery vehicles was not established by the respondent and was not obvious on site.
All parties who attended on site agreed that the proposed car parking bay otherwise was adequate and did not interfere with grease trap inspections. The Tribunal finds that the respondent having considered each of the factors referred to in cl 6.3(6) of TPS 6 and all technical requirements of the proposed carpark having been met to the respondent's satisfaction, the applicant's proposal for the owner of Lot 7 to create an additional carpark on Lot 7, as drawn on the plan, would be a preferable substitution for condition 2 of the reviewable decision should the imposition of a a condition as to car parking be the correct and preferable decision. For the reasons already stated, however, the Tribunal has concluded that the correct and preferable decision in this matter is that the reviewable decision be varied to delete condition 2 entirely.
Order
1.Pursuant to s 29(2)(b) of the State Administrative Tribunal Act 2004 (WA), upon review of the respondent's decision to grant the applicant conditional approval to change the use and associated signage from 'shop' to 'café/restaurant' referred to in the respondent's Notice of Determination of Application for Planning Approval dated 25 March 2014, the respondent's decision is varied so as to delete condition 2 thereto.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS N OWEN-CONWAY, MEMBER
0
3
5