FUTURE DESIGN HOLDINGS PTY LTD and CITY OF KALAMUNDA
[2022] WASAT 114
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: FUTURE DESIGN HOLDINGS PTY LTD and CITY OF KALAMUNDA [2022] WASAT 114
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 16 AUGUST 2022
DELIVERED : 21 DECEMBER 2022
FILE NO/S: DR 141 of 2020
BETWEEN: FUTURE DESIGN HOLDINGS PTY LTD
Applicant
AND
CITY OF KALAMUNDA
Respondent
Catchwords:
Town planning - Development application - Review of conditions - Restaurant use - Historic use - Intensity of use - Amenity - Noise - Noise as a town planning consideration - Evaluation of amenity
Legislation:
City of Kalamunda Local Planning Scheme No 3
Environmental Protection (Noise) Regulations 1997 (WA)
Environmental Protection Act 1985 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 90, cl 1, cl 67, cl 67(n)
Planning and Development Act 2005 (WA)
Planning Regulations Amendment Regulations 2020 (WA), reg 79
State Administrative Tribunal 2004 (WA), s 29(3)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
| Applicant | : | J Winton & Mr R Payne |
| Respondent | : | J Skinner |
Solicitors:
| Applicant | : | Richard Payne & Associates |
| Respondent | : | Thomson Geer - Perth |
Case(s) referred to in decision(s):
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158
BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110
Canning Mews Pty Ltd v City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79
Ex Parte Tooth & Co Ltd; Re Parramatta City Council (1955) 20 LGR (NSW) 60; (1955) 55 SR (NSW) 282
Focus Video Pty Ltd v City of Enfield (1985) 55 LGRA 214
GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1; 151 LGERA 74
Gosford Shire Council v Anthony George Pty Ltd (No 2) (1968) 16 LGRA 165
Joydem Pty Ltd v City of Nedlands [2022] WASAT 78
Joynson and Shire of Capel [2020] WASAT 21
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Mt Lawley Pty Ltd v Western Australian Planning Commission [2005] WASAT 57; (2005) 38 SR (WA) 255
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
Purser and City of Nedlands [2022] WASAT 87
R v City of Munno Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 400
Ridgecity Holdings Pty Ltd and City of Albany [No 2] [2006] WASAT 187
Sapphire Development Alliance Pty Ltd and City of Nedlands [2020] WASAT 149
Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Future Design Holdings Pty Ltd (Applicant) owns 415 Mundaring Weir Road, Piesse Brook (Land). The Land contains a 'restaurant', a use that first commenced as tea rooms in 1946 but which is currently idle. The Land overlooks the Bickley Valley and Piesse Brook to the south, which is a high-quality visual environment due to its heavily vegetated landscape and steep topography.
In September 2018, the Applicant applied for development approval to inter alia increase the number of patrons that may attend the restaurant from 80 people per day to 480 people per day (patrons and staff). The City of Kalamunda (City or Respondent) approved the application on 9 June 2020 (Approval) but with two conditions which are opposed by the Applicant:
Condition 1: restricts the number of people to 350 per day (staff and patrons), with a maximum of 200 people at any one time. A record of patron and staff numbers is to be kept and made available to the City on request.
Condition 14: requires the restaurant to close on Thursdays at 10:00 pm (rather than 11:00 pm).
The City's decision of 9 June 2020 to approve the development subject to conditions 1 and 14 is therefore the 'reviewable decision' for the purposes of the State Administrative Tribunal Act 2004 (WA) (SAT Act). It is these two conditions which are the focus of these reasons.
The principal issue for me in this proceeding is amenity, in particular noise issues arising from the restaurant. However, other aspects of amenity such as traffic movements also fall for consideration.
For the reasons that follow, the correct and preferable decision is to affirm the City's decision and to dismiss the application for review as it relates to each condition.
Background
The Land:
(a)was purchased by the Applicant in 2005;
(b)has an area of 2.61 hectares;
(c)is heavily contoured, with steep slopes that overlook the Bickley Valley to the south;
(d)is only one property removed from State Forest reserve to the east and the Beelu National Park to the north;
(e)is located in a semi-rural setting, approximately 3 kilometres east of the Kalamunda township; and
(f)is located within the Helena Pipehead Water SubCatchment, a Priority 2 (P2) Public Drinking Water Source Area.
As stated, the Land was first used as tea rooms and restaurant in 1946 and has been used for such purposes, through different iterations and owners, since. In the 1960s, following the destruction of the original tea rooms, a restaurant with the name 'Chalet Rigi' commenced and operated through to the late 1990s. Since Chalet Rigi ceased trading, the Land has not been put to any other commercial use (although the structures remain).
On 24 November 2011, the City approved an application for 'additions to existing restaurant' which included:
(a)a large extension on the southern side of the restaurant to establish a new restaurant dining area and wine bar; and
(b)a large south face decking, with toilet facilities underneath (2011 Approval).
The 2011 Approval was subject to a condition restricting the number of patrons to a total of 80 people per day. The condition restricting patron numbers was based on advice from the Department of Water and Environmental Regulation in order to manage the risk to the environment and water catchment. As will be apparent, the Land is not connected to deep sewerage.
On 2 December 2015, the City granted a building permit for alterations to the restaurant.
On 1 March 2016, the City approved a further application for development approval for a toilet and kiosk, external to the restaurant building (2016 Approval). These developments were proposed as supplementary to the additions approved as part of the 2011 Approval.
The 2016 Approval did not propose any increase in patron numbers.
On 3 March 2016, the City issued a building permit for the addition of a kiosk and ablution building on the Land.
Although substantial works were commenced in accordance with the 2011 Approval and the 2016 Approval, the development the subject of those approvals was not completed, and the restaurant did not recommence commercial operations.
The Approval involved additions comprising a new restaurant dining area and decking (reflecting the development approved in the 2011 Approval and the 2016 Approval) including:
(a)a kiosk, outdoor grassed restaurant seating area, shaded walkways and detached toilet facilities;
(b)parking, internal access ways, service areas and hardstands;
(c)large scale waste water treatment infrastructure and associated irrigation areas; and
(d)water tanks and firefighting facilities.
The central aspect of the Approval, at least for present purposes, is to vary the effect of the 2011 Approval (which capped numbers at 80 persons per day) so as to allow a maximum of 480 patrons and staff per day at the restaurant.
During advertising, the Approval resulted in 67 submissions, the majority of which were opposed for a number of reasons, including traffic, noise, fire and water contamination. There were also concerns as to the scale of what was proposed.
The decision to issue the Approval, including the contested conditions, was made on 19 May 2020.
Applicable planning framework
The Land is zoned 'Rural Landscape Interest' in the City of Kalamunda Local Planning Scheme No 3 (LPS 3) and 'Rural' in the Metropolitan Region Scheme.
The aim of LPS 3 is 'to secure the amenity, health and convenience of the Scheme area and the residents thereof'. The objectives of the Rural Landscape Interest Zone include to 'ensure development is in harmony with the natural environment' and to ensure that 'land uses, activities … are consistent with natural resources conservation and are compatible with public water supply objectives' as well as to 'conserve water quality'.
The land use which forms the basis of the Approval is Restaurant/Café under LPS 3 which is defined to mean:
premises primarily used for the preparation, sale and serving of food and drinks for consumption on the premises by customers for whom seating is provided, including premises that are licensed under the Liquor Control Act 1988.
It will be also be necessary to refer to the City of Kalamunda Local Planning Strategy (Strategy), the City's Tourism Development Strategy (Tourism Strategy) and the Pickering Brook and Surrounds Sustainability and Tourism Strategy (PBSSTS) in these reasons.
Clause 67 of the (then) Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) set out a wide range of considerations that I am to have 'due regard' to including, relevantly, 'the amenity of the locality' as well as 'the aims and provisions of LPS 3'.[1]
[1] Noting the date that approval was granted and the effect of reg 90 of the deemed provisions (included in the deemed provisions pursuant to reg 79 of the Planning Regulations Amendment Regulations 2020 (WA)). See also ts 128, 17 August 2022.
This matter arises in the Tribunal's review jurisdiction. Accordingly, my task is to hear the matter de novo and to make the correct and preferable decision. By reason of s 29(3) of the SAT Act, I may either affirm, vary or set aside the reviewable decision.
Evidence
In this matter, I heard from five witnesses. Both parties called town planning evidence (Mr Stephen Geoffrey Allerding for the Applicant and Mr Joe Algeri for the Respondent). The Applicant called Dr Ruisen (Roy) Ming who is an expert in acoustics. The Respondent called two witnesses who live near the Land (what may be termed 'locality witnesses').
I will address the evidence, so much as it is relevant, in my findings. It is a fair summation that the focus of all these witnesses was on the impacts that will be caused to the locality as a result of the Approval, in particular on the question of amenity in the form of noise.
Issues
The issues, as agreed between the parties, are whether it is correct and preferable:
(a)for Condition 1 of the Approval to require the restaurant to:
(i)be both:
(A)restricted to a maximum of 200 patrons at any one time and with no more than 350 patrons and staff attending in any single day; and
(B)required to keep a record of patron and staff numbers each day to produce on request.
or
(ii)only be restricted to 480 patrons and staff per day.
and
(b)for Condition 14 of the Approval to require the restaurant to close on a Thursday night by:
(i)10.00 pm; or
(ii)11.00 pm.
Issue 1: patron numbers
Applicant's case
As I understand it, the Applicant's case is essentially as follows:
(a)the impacts of having up to 480 patrons and staff on the Land per day are not unreasonable and can be adequately managed so as to protect the amenity of the locality. That is to say, 480 patrons and staff will not detract from that amenity;
(b)the Respondent has approved the 2011 Approval, the 2016 Approval and the Approval each of which added to the range of facilities available on the Land. With the restraints surrounding wastewater management now resolved, the Applicant now seeks to use the Land in a manner which is commensurate to that which has been already approved by the City;
(c)the use commenced on the Land in 1946 and has therefore been a long-standing part of the fabric and amenity of the locality;
(d)there are a broad range of land uses in the locality, from rural residential, to conservation to rural industry and tourism and public utilities;
(e)the preservation of amenity, as a planning objective, is not the focus, nor is it privileged, by the applicable planning framework. A wide range of land uses are permissible in the Rural Landscape Interest Zone;
(f)the future amenity of the locality will be influenced by the focus on both State and local government to develop tourist related activities;
(g)the population of the City is going to double by 2050 to around 120,000 people (from about 56,000);
(h)there is no technical impediment to accommodating 480 patrons (and staff) per day; and
(i)480 patrons attending each day will not have any undue impacts on the amenity of the locality in terms of noise or traffic and there is no expert evidence which suggests the contrary.
Respondent's case
The Respondent's case is that the use was, and will remain, the only commercial use in what is a rural residential locality and that, in the past, it was a use that was acceptable (or absorbable) because of its small scale.
The cap on patron numbers set out in Condition 1 has the consequential effect of managing (or preserving) the amenity of the locality by limiting:
(a)the number of vehicles attending the Land per day;
(b)noise and light spill from the operation of the restaurant; and
(c)the scale and intensity of use of the restaurant.
The proposal to have up to 480 patrons per day attending the Land would result in a scale and intensity of use that is distinguishable from the prevailing and expected future land uses for this locality. There will be consequential amenity impacts in terms of greater vehicle movements, greater noise and light spill.
Issue 1: the evidence as to patron numbers and impacts thereof
Perhaps unsurprisingly, there was competing evidence on the question of the likely impacts arising from 480 patrons and, moreover, the acceptability or otherwise of a commercial use of that intensity and scale in this locality.
I pause here to emphasise some aspects of the relevant background.
That background is that the Approval has effect and builds on what has been on the Land historically as well as pursuant to the 2011 Approval and the 2016 Approval. Accordingly, the focus for me is only on the proposal to increase the permitted numbers from 350 per day (200 at any one time) to 480 (and the requirement for numbers of patrons and staff to be kept) as well as the dispute about whether trading should cease as 10.00 pm or 11.00 pm on Thursday evenings.
In terms of the relevant locality, there is general agreement between the planners that the immediate locality is, in effect, a triangular portion of land framed by Mundaring Weir Road, Aldersyde Road and Hummerston Road which comprises, in general terms, rural residential housing. There are 10 'residential' properties within 450 metres of the Land.
Beyond this immediate context, there are other uses such as a number of extensive conservation reserves, as well as some tourism uses (such as wineries or cideries). Mundaring Weir Hotel is some 10 kilometres east of the Land. Mr Allerding notes that the Mundaring Wier Hotel is licensed to accommodate up to 2,000 patrons on a 1.0315 hectare site. The Applicant regards this broader locality as significant.
The locality witnesses
The two locality witnesses are very concerned by a proposal for up to 480 patrons and staff to be able to attend the Land on any given day. They reported instances of weddings and other functions at the restaurant which, they say, adversely impacted the quiet amenity that they enjoy.
Mr Johnston is a local resident and finds the locality 'quiet' and 'picturesque'. He says the 'valley … is a piece of heaven'.[2] He says he and his wife live on their veranda of their house in both summer and winter. He purchased his land in 1994 at a time when Chalet Rigi was not operational.[3] He says the valley has no noise at the moment. However, he recalled that the venue on the Land was used for a wedding on one occasion (four or five years ago) and it resulted in 'serious noise' from people talking, music as well as carpark noise when people were leaving.[4]
[2] ts 29, 16 August 2022.
[3] ts 29, 16 August 2022.
[4] ts 30, 16 August 2022.
Dr Bower also lives near the Land. Dr Bower's property has a deck that faces north towards the restaurant. He owns a pool so much of his summers are spent outside. Family and friends also gather on the deck in the summer.[5] In terms of current noise, Dr Bower explains that it is 'mainly birdsong, particularly red and white-tailed black cockatoos'.[6] He too remembers the wedding that Mr Johnston referred to as his son was working at the event. He recalls it was 'loud' and that the speeches could be heard 'quite clearly'.[7]
Dr Ming's evidence
[5] ts 35, 16 August 2022.
[6] ts 36, 16 August 2022.
[7] ts 36, 16 August 2022.
Dr Ming is an acoustic expert. Dr Ming undertook a noise impact assessment for Chalet Rigi. He modelled eight different scenarios with up to 480 patrons being the open dining area as well as live music on the deck area of the beer garden. The scenarios modelled by Dr Ming were as follows:
1.200 patrons attending at one time. No activities in the open dining area.
2.350 patrons at any one time, including 150 patrons in the open dining area.
3.480 patrons at one time, including 280 patrons in the open dining area.
4 & 5.live music performance on deck area in the beer garden during the day for 350 and 480 patrons (respectively) at one time.
6.short events such as closing a car door.
7 & 8.vehicle propulsion noises not covered by the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations).
In order to establish baseline data and to enable the assessment of audibility of noise characteristics, Dr Ming set up unattended noise modelling for two weeks from 15 December 2020 to 29 December 2020. The noise logger was located 105 metres from the closest residence.
Dr Ming analysed the 14 closest residential premises of noise impacts having regard to compliance with the Noise Regulations. The distances of these residences from the Land are 100 metres to 1 kilometre.
The assigned noise levels for premises, including 'noise sensitive premises: highly sensitive area' is set out in reg 8 of the Noise Regulations. Table 1, within reg 8, is as follows:
Table 1
Type of premises receiving noise
Time of day
Assigned level (dB)
LA 10
LA 1
LA max
Noise sensitive premises: highly sensitive area
0700 to 1900 hours Monday to Saturday
45 + influencing factor
55 + influencing factor
65 + influencing factor
0900 to 1900 hours Sunday and public holidays
40 + influencing factor
50 + influencing factor
65 + influencing factor
1900 to 2200 hours all days
40 + influencing factor
50 + influencing factor
55 + influencing factor
2200 hours on any day to 0700 hours Monday to Saturday and 0900 hours Sunday and public holidays
35 + influencing factor
45 + influencing factor
55 + influencing factor
Noise sensitive premises: any area other than highly sensitive area
All hours
60
75
80
Dr Ming measured the averaged and L90 ambient noise levels. L90 of LAeq, 15 minutes is the level exceeded by 90% of LAeq, 15 minutes. The LAeq is the 'A' weighted noise level which is the logarithmic average noise level of the measurement period (i.e., the average noise level of a conversation). The LA90 measurement is the 'A' weighted noise level which is the statistical noise level that is exceeded for 90% of the measurement period (i.e. typically used as the background noise within a measurement period).
Dr Ming reports that day and night have similar average ambient noise levels while the evening has the highest average noise level LAeq (evening), 15 minutes. The early night-time period (10.00 pm to 1.00 pm) has higher noise levels than the whole night-time period (10.00 pm to 7.00 am). The daily averaged LAeq, 15 minutes ranged from:
(a)43 to 48 dB(A) for days and nights;
(b)45 to 53 dB(A) for evenings; and
(c)45 to 51 dB(A) for the early night-time period (10.00 pm to 1.00 am).
The daily L90 of LAeq, 15 minutes ranged from:
(a)39 to 44 dB(A) for days;
(b)42 to 51 dB(A) for evenings; and
(c)39 to 49 dB(A) for early night-time period (10.00 pm to 1.00 am).
Thus, Dr Ming's analysis indicated that the two-week unattended noise monitoring results demonstrated that the averaged ambient noise LAeq, 15 minutes was above 43dB(A) at any time of the day, and the L90 of LAeq, 15 minutes was above 39 dB(A) for the day, the evening and the early night (10.00 pm to 1.00 am).
Therefore, the predicted noise levels are:
(a)at least 8 dB below the averaged ambient noise levels (the background noise) for all scenarios;
(b)at least 6 dB below L90 of LAeq for scenarios 1 to 5; and
(c)4 dB below L90 of LAeq, 15 minutes for scenario 6.
Noise levels were predicted for the worst-case meteorological conditions. Based on the recorded ambient noise levels, the predicted worst-case noise levels are much lower than the measured ambient noise levels and their dominant characteristics will be masked, if at all present.
Therefore, Dr Ming's opinion is that full compliance with the Noise Regulations will be achieved.
Issues with Dr Ming's evidence
Mr Skinner, counsel for the Respondent, identified a number of concerns with the methodology adopted by Dr Ming. For the following reasons, I accept that Dr Ming's acoustic evidence should be approached with much caution.
At the heart of these concerns is Dr Ming's finding (from analysis of the data from the noise logger) that the ambient noise levels in the locality were so high as to, it seems, exceed the Noise Regulations.[8] That finding directly informs his ultimate opinion that noise from the Land, in all scenarios, will not be audible at the residences for the purposes of assessing compliance with the Noise Regulations.
[8] ts 50, 16 August 2022.
Dr Ming agreed that his finding that the ambient noise level was high was indeed surprising.[9] I assume that this is because the locality presents as a very quiet rural locality. That is certainly the evidence of the residents. In my view, common sense and ordinary experience also suggests as much. While it may be that the wind rustling through the trees or birdsong may create significant ambient noise, given the significance of such a finding to his overall opinion, it would have been prudent for Dr Ming to interrogate the basis for that finding, rather than just being surprised but nonetheless proceeding on the basis that existing ambient noise levels were very high.
[9] ts 50, 16 August 2022.
It is also the case that the logger (microphone) was actually placed quite close to the restaurant and in an area that was, or has been, excavated and was used for laydown purposes. Could noises and activities from construction around the restaurant have been the basis for the 'surprisingly' high ambient noise levels? I find that possibility, even probability, cannot be reasonably excluded.
In addition, Dr Ming only analysed the logged data, he was not on-site throughout the recording period. Upon reviewing the logged data, he did not take steps to understand why the recorded ambient noise levels were 'surprisingly' high so as to make the noise from the restaurant use of no consequence.
As I have said, rather than just relying on that surprising data, he should of have interrogated it. In the absence of inquiries to satisfy himself that the logged ambient noise levels were indeed accurate, I cannot accept Dr Ming's evidence as being the product of a robust acoustic investigation.
Another concern with Dr Ming's work is that his modelling of patron noise is premised on conversational noise which, in fairness to him, will likely be the majority of the noise emanating from patrons. However, I do agree with Mr Skinner that in a venue such as this, which presents as suitable for festive gatherings such as wedding events and birthday parties, there will be occasions when patron noise is far more audible, whether that be in the form of songs, speeches, cheering or clapping.[10] That eventually is not picked up in Dr Ming's modelling. It should have been. That is a further concern in relying on Dr Ming's work.
The Noise Regulations and the exercise of planning discretion
[10] ts 164, 17 August 2022.
However, the fact that I am not satisfied with Dr Ming's approach to his acoustic assessment is not the end of the matter. Dr Ming's inquiries were primarily directed to the question of compliance with the Noise Regulations which are established pursuant to the Environmental Protection Act 1986 (WA) (EP Act).
The Noise Regulations establish the regulatory regime for noise in Western Australia. That regime was explained in some detail by the Court of Appeal in Ammon v Colonial Leisure Group Pty Ltd (Ammon).[11] The Noise Regulations set out the maximum permissible noise levels for land uses (being premises) based on levels, frequency and matters such as impulsiveness and tonality.
[11] Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158 [35]-[39].
As was explained by the Court of Appeal in Ammon:[12]
In broad overview, the [Environmental Protection Act] creates various offences which may be committed by the emission of noise from premises in excess of a standard prescribed by regulations. The [Noise Regulations] do not themselves create an offence, but rather operate to define the circumstances when an offence may be committed under the Act. The [Noise Regulations] exclude certain kinds of noise emission from the standards they prescribe, and provide for the Minister to approve the emission of noise above the prescribed levels where the premises cannot reasonably or practicably comply with the prescribed standard.
[12] Ammon [35].
As is plain from the Court of Appeal's analysis, the Noise Regulations arise under the EP Act. They are not an instrument created under, or for the purposes of, the Planning and Development Act 2005 (WA) (PD Act).
However, the Noise Regulations do shape and inform the exercise of planning discretion. This is because, as a general proposition, land uses that will cause noise impacts on adjoining properties which exceed the maximum noise permitted by the Noise Regulations are not considered to be acceptable in the context of development control.[13]
[13] GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1; 151 LGERA 74 [61] (GMF).
In GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale[14] the Tribunal set out that compliance with the Noise Regulations is a 'necessary, but in some cases not sufficient criterion, to ensure that the noise emissions from a proposed development would not have an unacceptable acoustic impact on the locality'.
[14] GMF [61].
That is to say, even where a land use complies with the Noise Regulations, it does not automatically follow that the noise does not constitute an adverse impact on the amenity of the locality in a planning sense for the purposes of exercising planning discretion under the PD Act.[15]
[15]Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 [39] (Land Alliance).
In this case, I am not overly concerned that the restaurant land use will create noise so as to exceed the assigned levels set out in the Noise Regulations. If it does, as the Court of Appeal explained in Ammon, then action may be able to be taken.
In saying this, it is to be recalled that the use has been approved. All I am doing is making an assessment as to the intensity at which the Land may be used for the authorised purpose. Questions such as live music being played and at what time are not before me. I am only dealing with the number of patrons that may be permitted and also the question of when trading should cease on a Thursday evening.
It is also the case that the evidence does not establish that with 480 patrons the noise will be excessive so as to exceed the assigned levels set out in the Noise Regulations. Likewise, it does not establish that with the current terms of Condition 1 (being 350 patrons per day with a maximum of 200 at any one time), that noise will never be an issue across the locality.
This is not a case where the actual noise impacts from the Land throughout the day, week or month can be reasonably predicted or anticipated with any certainty.
This is because the planning decision that is before me in this proceeding is devoid of any certainty. There is no acoustic model before me that sets out in any precise sense, what noise profile can reasonably be expected once the use commences on the Land. This is so for a number of reasons.
The acoustic modelling that was done was, as I have explained, problematic. But even beyond that, how the Land will be used on a daily basis is far from certain and ultimately depends on how many patrons attend once it opens. It also depends on the kinds of events that are booked, even the kind of music that will be played and when it is played. One can also imagine that celebratory events such as weddings and parties will be booked and these will involve speeches, music, dancing and singing.
Predicting noise impacts is also made more difficult by the fact that the use has not been operational for far more than two decades. As and when it commences, it is, in practical terms, the reintroduction of a commercial land use into what is, I find, currently a quiet rural residential area.
My overarching point is that what I am reviewing here is, in effect, the City's best guess as to where the balance should be struck between allowing the land use to operate as a commercial land use, free from the water quality restrictions it was once bound to, but equally, placing limits on that intensity of use having regard to local amenity considerations.
The City's decision to impose Condition 1 was, then, essentially an evaluative judgment. On review and standing in the shoes of the decision-maker, the decision I reach is also an evaluative judgment of where that balance should be struck. Ultimately, my statutory lodestar is what do I consider to be the correct and preferable decision.
After that digression, I turn, finally, to the planning evidence.
The planning evidence
Both Mr Allerding and Mr Algeri are experienced planners.
Mr Algeri considers that Condition 1 is reasonable. He considers it strikes a reasonable balance between the Applicant's commercial aspirations on the one hand, and the residents' amenity expectations on the other.
Mr Algeri notes that the Land remains in a water catchment area, where the recommendation is that patron numbers for restaurants be capped at 50. Mr Algeri concedes that restricting numbers to 50 at the Land was long abandoned by the Department of Water and Environmental Regulation, as 80 has been the approved maximum number of patrons for a considerable period.
Mr Algeri's concern is ultimately about the scale or intensity of the land use. He considers that Condition 1 will operate as a safeguard in terms of both traffic and noise. He also infers that the proposal to increase the approved numbers from 80 to 480 would give rise to 'sudden and drastic' changes and consequential local amenity impacts. The preferred course, he suggests by reference to his own client base, is for incremental growth as needs arise.
Mr Allerding notes that the 480-capacity limit proposed by the Applicant stems from the capacity of the enhanced waste-water treatment system. Mr Allerding notes that if additional capacity for the treatment of effluent were applied, then patron numbers could exceed the 480-limit put forward by the Applicant.
Mr Allerding also references that there is what he considers to be a broad mix of activities existing in the locality. When pressed, he agreed that the broader mix of uses (including tourism-based uses) was across the 'broader locality', not the immediate context.[16]
[16] ts 97, 17 August 2022.
Mr Allerding refers to the Strategy, the Tourism Strategy and the PBSSTS as part of the strategic planning framework affecting the Land. These strategies, at some level, each point to the objective of facilitating tourism developments in the Perth Hills.
The objective of encouraging tourism uses will serve as a device to attract people to the region so as to enjoy the natural environment and the village lifestyle, to then stimulate economic activity and provide locally based employment. The concept of establishing tourism trails - such as the Bickley and Carmel Valley Wine Trail - is emphasised. It is also emphasised that tourism development can make a significant contribution to the local economy.
Mr Allerding's ultimate view is that Condition 1 is unnecessary. He considers that there is no basis, having regard to traffic and noise considerations, for Condition 1 to be imposed. He notes that one of the scenarios (Scenario 3) considered by Dr Ming assumed an attendance of 480 patrons at any one time. Dr Ming's conclusions were that at all times, noise would comply with the assigned noise levels under the Noise Regulations.
Mr Allerding also says that the amenity of the locality will be further preserved via the Noise Management Plan, as part of a broader Operational Management Plan, that will seek to limit when live or amplified music can be played and when patrons may utilise outdoor areas during evening and night-time periods.
Issue 1: disposition
Amenity considerations
The case law on the assessment of amenity in Western Australia is settled. The leading authority remains Tempora Pty Ltd v Shire of Kalamunda (Tempora),[17] where the former Town Planning Appeal Tribunal set out a three-step test in terms of evaluating amenity. The relevant steps are:[18]
1)establish the existing amenity in an objective sense;
2)evaluate the manner in which the proposed use will affect the existing amenity; and
3)assess the degree of impact on the locality
[17] Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296.
[18] Tempora 304.
In Sunbay Developments Pty Ltd and Shire of Kalamunda (Sunbay)[19] Barker P (as he then was) generally endorsed the approach to amenity set out in Tempora and confirmed that an evaluation of amenity should take account of future amenity.[20] The need to consider future amenity is expressly recognised in the definition of amenity set out in cl 1 of the deemed provisions.
[19] Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 [21] (Barker P).
[20] Sunbay [22].
While the approach in Tempora was generally endorsed by Barker P in Sunbay, there was important aspect which he refused to follow. Barker P agreed with the Tribunal's views set out in Canning Mews Pty Ltd v City of South Perth[21] that:
… in undertaking [the] objective inquiry [as to the character of the area that represents the state of amenity] a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity[.]
[21] Canning Mews Pty Ltd v City of SouthPerth [2005] WASAT 272; (2005) 41 SR (WA) 79 [48].
Barker P then concluded that:
… Thus, the decision in [Tempora] plainly is not correct, and should not be followed, insofar as the Town Planning Appeal Tribunal suggested that an objective inquiry as to the character of an area can only be informed by expert witnesses … and not by lay residents.[22]
[22] Sunbay [21].
Thus, pursuant to Sunbay, I am entitled to rely on the evidence of the locality witnesses in terms of evaluating the question of amenity, in particular, the existing character of the area.
Tempora and Sunbay remain the leading authorities on the question of amenity: see for example Joydem Pty Ltd and City of Nedlands;[23] Purser and City of Nedlands[24] and Sapphire Development Alliance Pty Ltd and City of Nedlands.[25]
[23] Joydem Pty Ltd v City of Nedlands [2022] WASAT 78 [41].
[24] Purser and City of Nedlands [2022] WASAT 87 [89]
[25] Sapphire Development Alliance Pty Ltd and City of Nedlands [2020] WASAT 149 [38].
In Focus Video Pty Ltd v City of Enfield[26] Jacobs JA noted that:
… the extent of the relevant 'locality' for planning purposes varies from case to case, but care must always be taken not [to] unduly … restrict the locality, for the tighter the locality is defined, the greater is [the] impact of the impugned subject matter … and the greater is the risk of distorting the relevant planning criteria[.]
[26] Focus Video Pty Ltd v City of Enfield (1985) 55 LGRA 214, 220.
In Ridgecity Holdings Pty Ltd and City of Albany [No 2] (Ridgecity Holdings),[27] the Tribunal observed that:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
[27] Ridgecity Holdings Pty Ltd and City of Albany [No 2] [2006] WASAT 187 [42].
As was explained in Ridgecity Holdings, the 'locality' for the purposes of assessing amenity under cl 67(n) of the deemed provisions is the area that affects, or will be affected by, a proposed development. Those 'affects' are town planning affects.
In this instance, consistent with the views of the planners, I find the locality is the Piesse Brook Valley being that a triangular portion of land framed by Mundaring Weir Road, Aldersyde Road and Hummerston Road. The only uses of any note within this locality are the rural residential properties as well as the restaurant. The broader locality that was identified by the Applicant can be accepted as a matter of context, but a more focused approach to establishing a locality is warranted in terms of assessing amenity based on town planning impacts.
The Tempora steps
I turn now to evaluate the amenity based on the Tempora steps.
Firstly, in terms of establishing the existing amenity of the locality, it is a locality that is, I find, extremely pleasant. It is, visually, a highquality landscape setting characterised by sweeping views which are complemented by heavy vegetation with the Piesse Brook meandering through the valley.
After viewing the Land, the parties and I drove down Mundaring Wier Road and along Aldersyde Road up to Hummerston Road. The locality is, I find, quite stunning. It is quiet, scenic, and peaceful. For some people, including Mr Johnston, it is 'heavenly'. Assessed objectively, I find that kind of characterisation is not an overreach.
It is also not without significance that, despite the history of the use of the Land, there are currently no commercial land uses of any note operating within the locality and the restaurant itself has not traded for more than two decades. The point being the locality is currently very scenic and very peaceful.
Secondly, in terms of evaluating the impacts of the proposal in question, my focus is on the proposal to increase the patron numbers from the approved 350 per day (200 at any one time) to 480 as proposed by the Applicant.
Nevertheless, while my focus is on the proposed variations to the Approval conditions pressed for by the Applicant, I am not blind to the reality that these proposals are not incremental changes to an existing use.
That is to say, for the residents of the locality, the restaurant is not an existing use that is seeking to modify its trading arrangements. In effect, it is a new use that will be commencing. That reality is, I find, not without some significance in terms of evaluating amenity.
The fact that there is not an existing use that can be used as a gauge by which to consider the proposed increase in patron numbers makes this task more difficult. It also inclines me that a more conservative approach is warranted because there is no relevant (at least recent) history of the use being operational that would allow impacts that may arise from changes to patron numbers to be better assessed and evaluated. As I have already stressed, the reality is that this is, in a practical sense, a new use.
Upon the restaurant use recommencing, the amenity impacts will be felt in a number of ways across the locality. Most acutely, there will be more noise and traffic arising from the use of the Land. That noise and traffic will extend way beyond standard business hours and have the potential to impact those who live nearest the Land much of the time, although the frequency and duration of any such impacts are far from certain. That will be the case based on the Approval. It is hardly controversial to suggest that an increase in patron numbers by 37% (350 x 1.37 = 480) beyond that permitted by Condition 1 has the potential to further impact the amenity of the locality.
Thirdly, I turn, finally, to evaluate the degree of impact that will arise from the proposed amendments to the conditions urged by the Applicant.
At one level, the Applicant seeks to modify the conditions that attach to an approval that has been issued by the City. On that view, the proposed amendments may be seen to be somewhat modest.
However, on another level, as I have explained, the restaurant is not an existing use that is seeking to modify its trading arrangements. In effect, it is a new use that will be commencing.
I therefore find that the degree of impact on the amenity of the locality by the recommencement of the restaurant use has the potential to be marked and adverse. A proposal to increase the daily patron numbers by 37% from that which was approved via Condition 1 imposed by the City cannot, on any view, be considered to be minor or of no potential consequence.
Because, for the reasons explained, I do not accept Dr Ming's analysis of the likely noise impacts that will result, I remain concerned that there may be adverse amenity impacts that arise from the use of the Land.
To be clear, my concern in this matter is not that the Noise Regulations will necessarily be exceeded. However, what I do find is that I have a real concern that the noise from the use of the Land as a restaurant will be at least audible, at least for periods of time, for those that live in the locality. The intensity of that use, including, relevantly, patron numbers, informs the degree of that impact.
It follows that I find that the amenity of the locality may be adversely impacted by reason of restaurant noise, even based on Condition 1 as framed by the City. That is to say, leaving aside the question of compliance with the Noise Regulations, I find that noise remains an issue in a town planning sense, even if the assigned levels are not exceeded.
In imposing Condition 1, the City has plainly attempted to balance the reasonable amenity concerns of the residents against the Applicant's interests in operating a commercial venture. Nevertheless, there will, I find, be some impact. That is inevitable.
Having said that, the proposed amendments urged by the Applicant only have the potential to make those impacts more manifest. In a locality like this, I find the impacts from up to 480 patrons a day could be highly disruptive, as compared against the amenity that is enjoyed today (but noting that the Approval has been granted based on Condition 1).
On the question of planned or future amenity, there is nothing in the planning framework that would suggest that there are fundamental changes planned for this locality. It is planned to remain as a small rural residential enclave. The fact that tourism is being encouraged in the broader locality does not change that outlook. Such tourism developments are premised on celebrating and capitalising on the scenic qualities of the locality, not changing those qualities.
I agree with the Applicant that preserving amenity is not privileged by the planning framework. Amenity is, perhaps, the perennial planning consideration that, almost always, informs the exercise of discretion. It is, as I have noted elsewhere, one of the 'hardest worked [words] in planning'.[28] The fact that amenity is not privileged by the planning framework, does not make it irrelevant or even unimportant. The public interest that planning is said to safeguard often centres on preserving amenity.
[28] Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63 [368]; referring to Ex Parte Tooth & Co Ltd; Re Parramatta City Council (1955) 20 LGR (NSW) 60; (1955) 55 SR (NSW) 282, 306.
In this instance, amenity is expressly a relevant consideration by the fact of cl 67(n) of the deemed provisions. I am therefore required to give amenity considerations 'due regard' in the exercise of discretion. That is to say, I must weigh and balance amenity considerations as against other relevant considerations. While amenity may not be privileged by the planning framework, it remains a relevant consideration in the exercise of discretion.
Is it too late to raise amenity concerns?
Having made my finding that the amenity of the locality will likely be adversely impacted by a 37% increase in proposed patron numbers, I turn now to address the Applicant's underlying argument that the City has approved a series of incremental development proposals, the effect of which is to enhance, significantly, the capacity of the Land to accommodate more patrons.
The argument seems to be that, in effect, by approving the 2011 Approval and the 2016 Approval the City has given tacit approval to a significant uplift in patron numbers to allow the Land to be used in a manner commensurate to the built form which has been allowed. The following exchanges took place:[29]
[29] ts 133-135, 17 August 2022.
WINTON, MR: Our submission is that at each stage it would have been possible for the respondent to refuse the application on the basis that the scale of activity contemplated, as revealed by the plans themselves, would self-evidently adversely impact on the amenity and we say that with reference to the features that I took you to in terms of the outdoor dining areas and the stages and the gazebos and the kiosk, etcetera.
So at - for example, at the stage that there was an application for an expansion to 850 square metres of dining area including outdoor areas, it would have been possible for the council to form the view that inherent in what was being proposed was a large operation that would have noise impacts. It would have been open to the council, we say, to form the view that if the building - if the built form was to function as it was clearly intended to operate, that that would have undue adverse impacts if - and I should stress if - that was the view of the council and on that basis to refuse it.
And, similarly, at the stage where there was an expansion not only for that 850 square metres of dining space to include a kiosk, external toilet blocks, a stage and gazebos the same thing could have happened. But alternatively, it would have been open to the respondent not to refuse the application entirely but to impose conditions such as, for example, it could have required all dining areas to be enclosed. It could have required that no amplified music be played at all outside or indeed it could have required that no music be played outside. It could have required that an operational management plan provided that the hours of operation be restricted to daylight hours. There are any number of conditions that the respondent could have imposed that would have ameliorated what we say are the inherent features of this built form which - - -
WILLEY, MR: Other than the comfort that the respondent may have had that there was a limit of 80 that was not being varied from post the 2011 approval.
WINTON, MR: Yes.
WILLEY, MR: Now this is, I think, part of the tricky part of this case is that you have an expansion of the built form - various expansions of the built form and no associated requests to allow those to be used utilised. My - and I'm not sure I'm with you as to what the planning authority was meant to do. I don't know, literally, whether you can refuse it on the basis that's way too big for what you want to do here or whether they could have been doing other things like, you know, putting on advice notes saying, well, this is an approval, but just remember you have got 80 and this should not be regarded as any tacit approval for anything which they didn't do. So this is one of the puzzles as it were that now sits with me but - - -
WINTON, MR: Yes.
WILLEY, MR: Continue on.
WINTON, MR: What we would say is in relation to the development approvals, what is apparent from the history of the development approvals is that, in fact, amenity considerations or amenity concerns in respect of noise and traffic and the like weren't evidence in the first two approvals that were granted. Now, on the one hand we can hang our hat, I think, on the advice note that specifically ties the patron condition to the wastewater management system.
WILLEY, MR: Yes.
WINTON, MR: But also, we can point to the fact, in my submission, that the built form clearly contemplated large noise and traffic implications as being evidence from which you can infer that, in fact, there was no concern about amenity at the time those approvals were granted and that, in fact, the concern was, really, a technical concern about what could be accommodated at the site having regard to effluent management.
I do not accept the Applicant's argument on this issue. As I raised with counsel for the Applicant, Mr Winton, what was the City meant to do in dealing with the 2011 Approval and the 2016 Approval? The Applicant proposed significant works on the Land but without seeking to adjust the condition limiting numbers to 80 patron per day.
In such circumstances, the City can only assess the proposal that is before it. In my view, the City is hardly entitled to refuse an application because it reaches a view that it would not be commercial for a proponent to want to add further facilities given the restriction of patron numbers. I am far from convinced that the tentacles of planning law extend that far, nor that they should.
It is also the case that there is nothing in the applicable planning framework, in particular, cl 67 of the deemed provisions, that would lend weight to that submission. To that I would add that in Western Australia, since the decision of the former Town Planning Appeal Tribunal in BP Australia Pty Ltd v City of Perth,[30] commercial need or demand are not threshold planning considerations that a proponent must demonstrate in order to obtain an approval.
[30] BP Australia PtyLtd v City of Perth (1994) 10 SR (WA) 110, 118-119.
This principle was affirmed by the Tribunal in Mt Lawley Pty Ltd v Western Australian Planning Commission[31] where it stated:
… The need for a use is not a threshold question that must be resolved. A commercial developer should not be put to the test of establishing a demand for the use … this statement of principle … applies to a proposed physical development as well as to a proposed land use.
[31] Mt Lawley Pty Ltd v Western Australian Planning Commission [2005] WASAT 57; (2005) 38 SR (WA) 255 [59]-[60].
Whatever the Applicant's intentions were, I do not agree that the City has been any kind of accomplice, or otherwise complicit, in allowing incremental works across the Land as set out in the 2011 Approval and the 2016 Approval.
Therefore, I do not accept Mr Winton's submission, the effect of which is, that it is far too late in the day for the City to now raise amenity as a concern. The City is required to assess any development on its merits and therefore one can readily see that with patron numbers capped at 80, why there would have been no amenity concerns raised in either the 2011 Approval or the 2016 Approval.
The prospect of up to 480 patrons on any given day is far different.
It is also the case that the scope of town planning considerations does not extend to the commercial viability of a proposed development.[32] Therefore, to the extent that the Applicant suggests that existing Condition 1 is not commercially viable, that is not an issue for the Tribunal.
[32] Gosford Shire Council v Anthony George Pty Ltd (No 2) (1968) 16 LGRA 165, 167 (Else-Mitchell J); Joynson and Shire of Capel [2020] WASAT 21 [74].
The Applicant took the commercial risk of proceeding with the 2011 Approval and the 2016 Approval without any certainty that it would be permitted to have the patron numbers it considers it needs in order to be commercially viable.
In my view, it is hardly an argument now that it needs 480 patrons to be permitted in order to make what it has already built, or is building, to be commercially viable. That kind of planning argument is dangerous because it seeks to make planning outcomes hostage to a proponent's commercial needs. At its core, planning is about protecting the public interest in the land development process. As was observed by King CJ in City of Munno Para; Ex parte John Weeks Pty Ltd:
… The purpose of the planning legislation is not to inhibit development but to facilitate its occurrence in way that is both orderly and compatible with the public interest[.][33]
Condition 1 strikes an appropriate balance
[33] R v City of Munno Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 400 at 406 (King CJ).
I am required to make a decision on Condition 1 in a de novo sense. I am not bound by the City's conclusion on Condition 1 and certainly it cannot be said that, on review, the Applicant carries any kind of onus to persuade me to an alternate view.[34]
[34] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 [115] (Buss P, Murphy and Mitchell JJA).
It is also the case, as was agreed by Mr Skinner, the Respondent's counsel,[35] as well as Mr Algeri,[36] the two capacity limits relied on by the Respondent (of 350 patrons per day with 200 at any one time) are, in a sense, arbitrary. These two capacity limits represent what the Respondent considered struck a reasonable balance between the competing interests of the Applicant and the residents in the locality. The figure of 480 patrons, urged by the Applicant, is premised on the enhanced capacity of the wastewater treatment system.[37]
[35] ts 9, 16 August 2022.
[36] ts 121-122, 17 August 2022.
[37] ts 122, 17 August 2022.
In terms of striking that reasonable balance, the Respondent made the following submission.[38]
SKINNER, MR: And that was my point in relation to the respondent's case on the 200, the respondent's case on the 200 isn't that 200 will have no impact on amenity. The respondent's case is 200 will have an impact on amenity but all things considered it has been determined by the respondent to be an acceptable impact on amenity and we are not suggesting before the tribunal that it should be any less or any more. Whereas the applicant is simply saying we want 480.
So we say, ultimately, realistically, it comes down a choice for the tribunal either agreeing with the respondent that 200 is an appropriate maximum or finding in favour of the respondent. It is open to the tribunal to find something else, but it's difficult to see on what evidentiary basis that could be done.
[38] ts 154, 17 August 2022.
I have power to vary Condition 1 in a manner that is not urged by either the Applicant or the Respondent. That is made clear by s 29(3) of the SAT Act. However, I do agree with Mr Skinner that there is little evidentiary basis for me to do so based on the materials.
Ultimately, I accept the evidence of the two locality witnesses as to the existing amenity enjoyed in the locality and I have concerns that the noise impacts will not be as envisaged by Dr Ming. I also accept the evidence of Mr Algeri that the controls put in place by the Respondent of 200 people at any one time, with a maximum of 350 people per day, is a reasonable arrangement that strikes an appropriate balance. It is also an arrangement that takes proper account of the aims and provisions of LPS 3, including to secure the amenity of the Scheme area.
It is also the case that allowing up to 350 patrons a day, represents an increase in patron numbers of 437%, which itself constitutes a very significant increase from the 80 patrons currently permitted. It can therefore hardly be said that Condition 1 is not a very substantial departure from the current restrictions. The reintroduction of this use in this locality needs to be managed so as to ensure that the amenity is not compromised. It follows that I disagree with Mr Allerding that Condition 1 is simply not necessary.
Of course, once the restaurant use of the Land has (re)commenced trading and has settled into its locality then, if the noise impacts are as minimal as envisaged by Dr Ming, there would be reasonable grounds for the Applicant to seek to accommodate greater numbers. I pause here to note that the Land is plainly large enough to be able to accommodate greater patron numbers into the future, provided that amenity considerations can be appropriately managed.
However, at this time, the arrangements proposed by Condition 1 as imposed by the City do, I find, strike a reasonable balance and should be affirmed. The cap on daily patron numbers would be inutile if no records are required to be kept of daily attendances. I therefore consider it prudent for Condition 1 to require the Applicant to record this patronage.
The correct and preferable decision at the time of the review is to dismiss the review of Condition 1.
Issue 2: Thursday closing time
This issue was very much at the periphery of the proceeding.
Mr Algeri considers that, for amenity reasons, a 10.00 pm closing time on a Thursday is reasonable and appropriate. He considers that late night trading is not a characteristic of other like establishments in the broader locality[39] and would be incompatible with the semi-rural character of the locality.
[39] By reference to Attachment JA4 of Exhibit 11.
Mr Allerding does not consider that closing at 10.00 pm on Thursday evenings is necessary. His view of Condition 2 relies, heavily, on Dr Ming's analysis of the noise impacts arising from the use. Because I do not accept Dr Ming's acoustic evidence, I therefore do not accept Mr Allerding's overall conclusion on Condition 14.
I accept Mr Algeri's evidence and find that a closing time of 10.00 pm on Thursday evenings is appropriate. The review of Condition 14 should be dismissed.
Orders
The Tribunal orders:
1.The application for review is dismissed.
2.The reviewable decision is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
21 DECEMBER 2022
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