GAY and CITY OF SOUTH PERTH
[2017] WASAT 94
•29 JUNE 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: GAY and CITY OF SOUTH PERTH [2017] WASAT 94
MEMBER: MS M CONNOR (MEMBER)
HEARD: 14 AND 15 MARCH 2016, 28 FEBRUARY AND 10 MARCH 2017
DELIVERED : 29 JUNE 2017
FILE NO/S: DR 243 of 2015
BETWEEN: AILIN GAY
Applicant
AND
CITY OF SOUTH PERTH
Respondent
Catchwords:
Town planning - Variation to condition of planning approval - Request to extend trading hours - Previous planning approvals granting approval to requested trading hours - Inclusion of modifications to proposal not considered by original decisionmaker - Whether substantially different application as opposed to an amended application - Whether proposal gives rise to unacceptable amenity impacts - Degree of impact - Ameliorative measures - Conditions - Consistency in decisionmaking
Legislation:
City of South Perth Town Planning Scheme No 6, cl 1.6, cl 7.5, cl 7.9, cl 7.9(7)(a), Sch 1
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Scheme) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), cl 1, cl 67, cl 77, Sch 2
Planning and Development Act 2005 (WA), s 242, s 252(1), s 256(1), s 257B, s 257B(2), s 257B(3),
State Administrative Tribunal Act 2004 (WA), s 27, s 27(1), s 29, s 29(9), s 31
Result:
Application for review allowed
Decision of respondent set aside and a decision substituted
Summary of Tribunal's decision:
Ms Gay applied to the Tribunal for review of a decision of the City of South Perth refusing to vary condition 14 of the planning approval granted on 24 March 2015.
The planning approval was for a two storey plus loft Mixed Development comprising a Shop, Café/Restaurant and Dwelling. Condition 14 of the planning approval sought to limit trading hours of the Café/Restaurant and Shop from 7 am to 5 pm, seven days a week, with no deliveries permitted between 9 pm and 7 am. Ms Gay sought approval to extend trading hours to 9 pm.
The extended trading hours sought by the applicant had the potential to give rise to unacceptable amenity impacts. However, both the acoustic and town planning experts agreed that if ameliorative measures to mitigate potential impacts of the extended trading hours were undertaken then the extended trading hours would not unreasonably impact on the amenity of the residents of the adjoining properties.
The Tribunal was satisfied, based on the additional work undertaken by all the experts during the course of the hearing, that subject to the ameliorative measures recommended by the experts being imposed on an approval, the degree of impact from the extended trading hours would not be so unreasonable to warrant refusal of the extended trading hours. The application for review was therefore allowed and the decision of the respondent set aside and a decision substituted which deleted and replaced condition 14 allowing the trading hours sought by the applicant subject to conditions relating to appropriate ameliorative measures.
Category: B
Representation:
Counsel:
Applicant: Mr M Flint
Respondent: Mr S Allerding
Solicitors:
Applicant: Flint Legal
Respondent: Allerding & Associates
Case(s) referred to in decision(s):
BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110
Gosatti Holding Pty Ltd v City of Fremantle (2000) 23 SR WA 367
Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269
New Frontier Pty Ltd and City of Vincent [2013] WASAT 187
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71
Phil Lukin Pty Ltd & Anor and Shire of Busselton [2006] WASAT 124
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Rossi and City of Bayswater [2010] WASAT 33; (2010) 70 SR (WA) 107
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
Woolworths Ltd and City of Joondalup [2009] WASAT 41
Yaksich v Town Planning Board (Unreported; Town Planning Appeals Tribunal; Appeal No 15 of 1979)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The City of South Perth (respondent, Council or City) granted planning approval to Ms Ailin Gay (applicant) for a two storey plus loft Mixed Development (comprising a Shop, Café/Restaurant and Dwelling) on No 333 (Lot 3) Mill Point Road, South Perth (subject land) on 24 March 2015, subject to 26 conditions.
Ms Gay made application to the City on 29 April 2015 to amend condition 14. Condition 14 read as follows:
The maximum trading hours of the Café/Restaurant and Shop shall be strictly limited to 7:00am to 5:00pm, 7 days a week, with no deliveries permitted between 9:00pm and 7:00am the following day. Should any noise complaints from neighbours be received within the first 12 months of operation, Council will determine whether the complaints are valid, and if so, will impose an earlier closing time or other requirements to address the complaints.
Ms Gay sought to vary the condition to reflect the trading hours specified in previous planning approvals, that being 7 am to 9 pm.
The Council at its meeting of 23 June 2015 resolved, in effect, to refuse to vary condition 14 of the planning approval granted on 24 March 2015.
Ms Gay, on 20 July 2015, made application under s 252(1) of the Planning and Development Act2005 (WA) (PD Act) to have the decision reviewed.
Subject land and immediate surroundings
The land in question is located at No 333 Mill Point Road, South Perth, more particularly described as Lot 3 on Plan 001575 comprised in Certificate of Title Volume 1654 Folio 645 and is 562m² in area. The subject land has frontage to Mill Point Road to the north, Banksia Terrace to the east and is located adjacent to single houses to the south and west. The surrounding locality consists predominantly of single houses with some group dwellings and multiple dwelling developments.
According to documentation filed, historical data confirms that the site accommodated a delicatessen continuously since as early as the 1920s, which ceased operation late in 2010 following an application for change of use to accommodate a café/restaurant.
Nature of the business
The applicant intends to establish a combined boulangerie, patisserie and café on the ground floor, comprised of three main areas, that being the shopfront, dining/alfresco areas and the kitchen, with a dwelling on the upper level of the building.
The shopfront will encompass beveragemaking services and ambient and refrigerated displays of products from the boulangerie and patisserie. Items like croissants, baguettes and entremets will be available for customers to take away or dine in.
The dining and alfresco areas provide for a maximum total of 24 patrons, comprising 12 seats within the dining area and 12 seats within the alfresco area.
The kitchen is segregated into three areas, being a hot kitchen for the preparation and cooking of breakfast, lunch and dinner services; a patisserie area for the preparation of desserts and pastries; and the boulangerie area for bread production and baking.
It is the applicant's intention to trade from 7 am to 9 pm daily with three meal services offered throughout the day. Products from the shopfront will also be available to the public from 7 am onwards.
Ms Gay, in oral evidence, gave a detailed description of how she envisaged the operation of the business. As to the hours of operation, Ms Gay explained that the baking production would commence at about 5 am, which involved a baker (at present, Ms Gay) being on site and that the cleanup operation after the close of business would take approximately one hour. As to staffing arrangements, she expected that there would be a minimum of four and a maximum of six staff during the evening service, which was less than the maximum of nine staff anticipated for the day service. In relation to deliveries, she estimated that there was likely to be about eight deliveries of produce a week, comprising of three deliveries of fresh fruit and vegetables, two deliveries of dairy and one or two deliveries of proteins. Flour for the bakery would be delivered approximately once a month as it came in larger quantities. It was expected that all deliveries would occur before 5 pm.
Historical development applications
In December 2009, Private Horizons Planning Solutions, on behalf of the then owner of the subject land, made application to the City for a change of use from 'Shop and Single House' to 'Shop and Café/Restaurant' and the construction works associated with the extensions to the existing building on the subject land.
The Council at its meeting of 25 May 2010 resolved to grant planning approval (2010 approval) to the change of use and the associated extensions subject to 20 conditions, one of which specified opening hours as follows:
The maximum opening hours of the Café/Restaurant shall be 8:00am to 9:00pm, seven days a week. Should any noise complaints from neighbours be received within the first 12 months of operation, Council will determine whether the complaints are valid and if so, will impose an earlier closing time or other requirements to address the complaints.
Ms Gay, on 8 August 2011, made an application for planning approval to the City for a change of use to 'Mixed Development' on the subject land, involving additions to the existing shop on the ground floor to accommodate a café/restaurant primarily associated with a patisserie, and a new second floor addition for a dwelling.
The Council, at its meeting of 13 December 2011, granted planning approval (2011 approval) for a two storey Mixed Development comprising a Shop, Café/Restaurant and a Dwelling subject to 30 conditions, one of which specified opening hours as follows:
The maximum opening hours of the Café/Restaurant, Shop and the delivery hours shall be strictly limited [to] 7:00am to 9:00pm, 7 days a week. Should any noise complaints from neighbours be received within the first 12 months of operation, Council will determine whether the complaints are valid, and if so, will impose an earlier closing time or other requirements to address the complaints.
In December 2014, the City received an application for a three storey Mixed Development, comprising a Shop, Café/Restaurant and Dwelling. The applicant, subsequently, submitted revised plans modifying the design of the building to two storeys with a loft.
The Council, at its meeting of 24 March 2015, considered the revised plans and resolved to grant planning approval (2015 approval) to a two storey plus loft Mixed Development (comprising a Shop, Café/Restaurant and Dwelling) on the subject land subject to 26 conditions. Condition 14 of the 2015 approval (see [2]) is the condition under review in these proceedings.
Planning framework
The subject land is zoned Urban in the Metropolitan Region Scheme and Local Commercial under the City of South Perth Town Planning Scheme No 6 (TPS 6 or Scheme) and is located in the Arlington Precinct (P5).
The request for reconsideration of condition 14 was made by the applicant and considered by Council under cl 7.9(7)(a) of TPS 6 which provides as follows:
Where a planning approval has been issued under this Scheme and remains current, an application in writing may be made requesting the Council to reconsider that approval in relation to:
(i)varying the conditions of the approval;
…
without the need for a new application for planning approval to be lodged.
However, since the filing of the application for review, the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) came into force on 19 October 2015 under s 256(1) of the PD Act. The LPS Regulations included deemed provisions which are contained in Sch 2 and are provisions to which s 257B of the PD Act apply.
Regulation 10(4) of the LPS Regulations states as follows:
The provisions in Schedule 2 are deemed provisions, being provisions to which section 257B of the Act applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text[.]
Furthermore, reg 8(1)(c) of the LPS Regulations expressly states:
The documents that comprise a local planning Scheme are the following
if any of the provisions set out in Schedule 2 have not been incorporated into the local planning scheme text those provisions[.]
Section 257B(2) and s 257B(3) of the PD Act state as follows:
(2)Deemed provisions, as amended from time to time, have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force.
(3)If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.
Clause 77 of the deemed provisions of the LPS Regulations provides as follows:
(1)An owner of land in respect of which development approval has been granted by the local government may make an application to the local government requesting the local government to do any or all of the following
…
(b)to amend or delete any condition to which the approval is subject;
…
(2)An application under subclause (1)
(a)is to be made in accordance with the requirements in Part 8 and dealt with under [Part 9] as if it were an application for development approval; and
(b)may be made during or after the period within which the development approved must be substantially commenced.
(3)Despite subclause (2), the local government may waive or vary a requirement in Part 8 or [Part 9] in respect of an application if the local government is satisfied that the application relates to a minor amendment to the development approval.
(4)The local government may determine an application made under subclause (1) by
(a)approving the application without conditions; or
(b)approving the application with conditions; or
(c)refusing the application.
In essence, cl 77 of the deemed provisions is similar in nature to cl 7.9(7)(a) of the Scheme but provides further detail in the consideration of such an application. In light of s 257B(2) and s 257B(3) of the PD Act, the Tribunal in determining this matter will exercise its discretion under cl 77 of the deemed provisions.
Clause 1.6 of the Scheme outlines the general objectives and intentions of the Scheme.
Clause 7.5 of the Scheme sets out matters to be considered in determining an application. The Tribunal in Puma Energy Australia and City of Cockburn [2016] WASAT 36 found that pursuant to s 257B of the PD Act, cl 67 of Sch 2 of the LPS Regulations is deemed to form part of the scheme. Clause 67 of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of matters to the extent that, in the opinion of the local government (and the Tribunal on review), those matters are relevant to the development of the subject of the application. The pertinent matters relating to this application are as follows:
•the aims and provisions of the scheme (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•the amenity of the locality including the character of the locality and any social impacts of the development (subclause (n));
•the history of the site where the development is to be located (subclause (w));
•any submissions received on the application (subclause (y)); and
•any other planning considerations the local government considers appropriate (subclause (zb)).
'Amenity' is defined in cl 1 of the deemed provisions of the LPS Regulations as follows:
… all those factors which combine to form the character of an area and include the present and likely future amenity[.]
Tribunal proceedings
This matter has involved extensive proceedings in the Tribunal and therefore it is considered necessary to outline the context and outcomes of these proceedings.
Shortly after the filing of the application for review, the parties engaged in mediation which resulted in additional information being provided by the applicant and the respondent being invited to reconsider its decision pursuant to s 31(1) of the State Administrative Tribunal Act2004 (WA) (SAT Act). On reconsideration of the matter, at its meeting of 22 September 2015, the respondent reaffirmed its previous decisions, noting the following reasons:
1.The additional information provided by the applicant to increase the maximum trading hours permitted, and considered by the Council, does not provide a substantive argument for the Council to change its position from the previous Council decisions.
2.The Development was approved on a 12 month trial basis given the predominantly residential nature of the surrounding area and community concerns about parking and loss of amenity. It would be more reasonable for the applicant to request an extension in trading hours once the 12 month trial period has been successful.
The final hearing for this matter commenced on 14 March 2016, where the Tribunal heard opening submissions from the parties' representatives and evidence from Cr Cheryl Iron, a councillor of the City of South Perth and Ms Gay. A view of the subject land was conducted on the morning of 15 March 2016 and a directions hearing was listed for 23 March 2016 so that the parties could consult with their respective acoustic experts and provide the Tribunal with consent orders regarding the further programming of this matter.
At the directions hearing held on 23 March 2016, the Tribunal made orders requiring the parties' acoustic experts to file supplementary witness statements by 15 April 2016 and for a conferral of the experts to be held on 6 May 2016.
As a result of additional work undertaken by the acoustic experts and the chaired conferral process, the experts were able to reach agreement on appropriate mechanisms to resolve the outstanding noise issues. The applicant, on 11 October 2016, filed and served revised plans and supporting information reflecting the agreements reached by the acoustic experts. The respondent was invited, pursuant to s 31 of the SAT Act, to reconsider its decision at its meeting of 13 December 2016.
The Tribunal was informed on 16 December 2016 that the Council had resolved 'that it was not in a position to determine the application at its Ordinary Council Meeting held on 13 December 2016, as Council did not have sufficient information and certainty about the applicant's proposal'. The Council provided the following reasons for its decision:
1.The applicant has been inconsistent with the details of their proposal presented to the State Administrative Tribunal and to the Council. Council cannot be certain as to the exact proposal subject of this application.
2.The applicant has made late amendments to their proposal, such as the proposed hours of operation. Council has not had sufficient time available to assess the likely impacts of the amended proposal.
3.Council requests further details of odours that would be generated from the commercial kitchen and all proposed measures that are to be implemented to address potential adverse amenity impacts to the neighbouring residential properties.
4.To provide the applicant an opportunity to review and consider amending their current proposal, including management plans, in such a manner to minimise the potential for detrimental outcomes and/or non-compliant operations taking place on the site, having regard to the relevant matters raised by presenters and Councillors at last week's [6 December 2016] Council Agenda Briefing and tonight's [13 December 2016] Ordinary Council Meeting.
Consequently, the Council made no varied or substitute decision under s 31(2)(b) or s 31(2)(c) of the SAT Act.
The Tribunal, at a directions hearing held on 20 December 2016, granted leave to amend the application for review so that the application was in respect of the applicant's revised without prejudice proposal dated 24 October 2016, including the explanatory and supporting commentary dated 25 October 2016 (applicant's revised proposal) and made programming orders for the recommencement of the final hearing of the matter.
The final hearing was reconvened on 28 February 2017 and continued for a half day on 10 March 2017.
During the course of the hearing on 28 February 2017, it became apparent to the Tribunal that a number of modifications had been made to the proposed building that did not relate to condition 14 or its underlying purpose of ameliorating amenity impacts. It would appear that the modifications to the plans had transpired during the course of the conferral of acoustic experts.
The applicant, at the hearing on 10 March 2017, conceded that the following modifications (extraneous modifications) did not fall within the scope of the application for review as they did not relate to the requested variation to condition 14:
•the bakery extraction fan identified as EAF02 on drawing A08 of the drawings dated 24 October 2016;
•inclusion of roof mounted fan on roof above ground floor foyer area;
•minor relocation of shopfront pedestrian entry from Mill Point Road;
•increase in bin store area and inclusion of storeroom and resulting loss of a staff toilet;
•internal rearrangement of kitchen layout;
•removal of seating layout configuration from seating plan;
•identification of additional roof space within loft area for storage of mechanical plant; and
•inclusion of skylight windows in roof above loft.
The respondent in closing submissions acknowledged that the proceedings did not have the effect of opening up the entire approval but submitted there was scope to either refuse the modifications as requested or approve the modifications subject to conditions. The respondent accepted that the revised plans include a significant number of changes to the plans that were approved by Council on 24 March 2015 and that many of those changes have no connection with condition 14 or its underlying purpose of ameliorating amenity impacts.
The respondent argued that cl 7.9 of the Scheme does not set out the nature or extent of the decisionmaker's powers in determining a request made under that provision and as the clause enables requests to be made, it must implicitly confer, on the decisionmaker, power to approve that request. The respondent submitted that the clause does not purport to limit the power to reconsider an approval to simply either approving or refusing the precise variation of the condition sought by the applicant but rather confers a discretion on the decisionmaker to consider matters more broadly and to view the underlying purpose for which the condition was imposed. The respondent's reasoning for this position is that the condition can be connected with other conditions such that a change in one necessitates a change in other conditions or a variation of the condition may give rise to other consequential issues which may require the imposition of additional conditions.
The respondent also relied on s 27 of the SAT Act, which provides as follows:
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decision-maker, or any grounds of review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
The respondent submitted that under s 27(1) of the SAT Act, the ability for the Tribunal to consider new material whether or not it existed at the time that the decision was made and therefore, the Tribunal can consider the additional information about the proposed operational development, including the commencement of the activities as early as 5 am, which emerged from the applicant's evidence at the hearing.
The respondent says that it is relevant to consider the underlying purpose for which condition 14 was imposed, which was the amelioration of adverse amenity impacts on the nearby residential properties that may be caused by activities undertaken as part of the approved uses. What has transpired through the assessment of the acoustic consultants is that a number of amelioration measures associated with noise issues have now been proposed by the applicant that do not expressly relate to the hours of 5 pm to 9 pm. The respondent urges the Tribunal to take the approach that the contemplated changes are appropriate because they assist in reaching the correct and preferable decision and the underlying purpose of condition 14 which is to regulate the amelioration of any adverse amenity impacts. The respondent does not support the applicant's position to delete the modifications as set out in [41] as it considers that this would leave the proposal in an unsatisfactory state because matters associated with noise and odour remain unresolved and the basis for addressing those matters is unclear. The respondent argued that the issue of noise, whether it be between 5 pm to 9 pm or outside of those hours, is an issue that needs to be before the Tribunal.
The respondent was particularly concerned about the exhaust fan for the bakery, which had formed part of the proposal to which the acoustic experts had considered and relied on in making their assessment and recommendations as to the suitability of noise arising from the proposed operation. The respondent was concerned that the deletion of the fan results in a situation where the applicant has not disclosed on what basis the bakery component of the kitchen is now intended to be ventilated nor the position of any extraction fans. The respondent submits that this situation leaves open the question of how the applicant intends to treat noise, in respect to this element, both in terms of compliance with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) but also in terms of impact on the amenity on the adjoining property. The respondent argues that the treatment of or elements relating to noise should not be left to later approval but be considered as part of the application before the Tribunal.
The real issue is that the Tribunal granted leave to amend the application for review at a time when the Tribunal was unaware that the elements listed in [41] formed part of the applicant's revised proposal. At that time, the Tribunal did not turn its mind to whether the modifications were a substantially different application as opposed to an amended application. By analogy with the cases in this area when considering a fresh application, it is not open to the Tribunal to purport to review a substantially different application: Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71; Yaksich v Town Planning Board (Unreported; Town Planning Appeals Tribunal; Appeal No 15 of 1979); 19 December 1979); Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269
Further, the powers conferred by s 29 of the SAT Act are conferred on the Tribunal 'when dealing with a matter in the exercise of its review jurisdiction'. The 'matter' which the Tribunal deals with when an application is brought under s 252(1) of the PD Act, is a review of the responsible authority's decision. In this case, the decision of the City to, in effect, refuse to vary condition 14 of the planning approval determined on 24 March 2015.
Section 29(9) of the SAT Act provides as follows:
To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision-maker.
Therefore, it is only the review of the decision in respect of the refusal to vary condition 14 that falls for determination by the Tribunal. Section 29(9) of the SAT Act is specifically designed to make that position clear.
The question of whether the modifications were a substantially different application as opposed to an amended application is a question of degree. The matter for determination by the Tribunal is whether condition 14 should be modified to allow for trading hours to be extended from 5 pm to 9 pm. As identified by the respondent, this involves consideration of whether the extended trading hours give rise to unacceptable adverse amenity impacts on the surrounding residential area. The acoustic experts, as a result of their conferral, have recommended a number of ameliorative measures to the proposal that directly relate the extension of the trading hours. These include:
•The inclusion of a carport structure over the car parking adjacent to the southern boundary to reduce noise impacts from the car parking area on neighbouring properties.
•The inclusion of a timber framed insulated wall on the southern boundary to reduce noise impacts from the car parking area on neighbouring properties.
•The inclusion of air-conditioning condensers on the eastern side of the existing shop building to avoid visual impact of screened mechanical plant on the roof. According to Ms Ireland's oral evidence (T:33; 28.02.2017) the relocation of the air-condensers were necessary for noise reasons as well as visual impact.
•The inclusion of a screened extraction fan on the eastern corner of the shop building roof.
While a number of these modifications will also assist in ameliorating noise impacts outside of the requested extended trading hours, the purpose of these measures are to ensure that the noise arising from the activities associated the extended trading hours are compliant with the Noise Regulations.
The extraneous modifications and associated ameliorative measures bear no relationship with the extended trading hours and are elements that relate to matters that have not been considered by the original decisionmaker and are clearly matters that are different in essence from the matter that was before the decisionmaker. The Tribunal finds that the inclusion of the extraneous modifications is a substantially different application.
Although it might be preferable to consider the extraneous modifications so that the outstanding issues relating to this development are dealt with, however, it is not open for the Tribunal to do so. Further, it does not matter whether the Tribunal looks at the clause in TPS 6 as it stood or as it is now (cl 77 of the deemed provisions), because neither version gives the power to the Tribunal, on review, to consider a substantially different application that has not been considered by the respondent.
So although the Tribunal's order of 20 December 2016 gave leave to amend the application for review such that the applicant's revised proposal was the application under review, given the Tribunal had no power and given the parties have now had the opportunity to address this issue, the Tribunal finds it is appropriate that the Tribunal officially amend the order dated 20 December 2016, so that the proposal under review is the applicant's revised proposal deleting all references to the extraneous modifications as identified by the applicant at [41].
Issues
At the commencement of the final hearing in March 2016, the following four issues were identified for determination in relation to this matter:
1)Whether the proposed extended trading hours, being 5 pm to 9 pm, seven days a week, gives rise to unacceptable adverse amenity impacts on the surrounding residential area in terms of noise, traffic and nuisance.
2)Is condition 14 necessary and appropriate in order to protect the amenity interest of the surrounding residential area?
3)Whether condition 14 should permit trading hours of 7 am to 9 pm seven days a week so as to be consistent with approvals granted by the respondent in respect of the subject land on 25 May 2010 and 13 December 2011.
4)Is the second sentence of condition 14 valid having regard to issues of finality, certainty and deferring for late consideration of a nonincidental aspect or aspects of the development that leaves open the possibility of the development being carried out in a significantly different manner to that which was approved.
However, given the progress of this matter, the issues have somewhat merged and as such, the Tribunal will address issues 1 and 3 separately and issues 2 and 4 together.
Whether the proposed extended trading hours, being 5 pm to 9 pm, seven days a week, gives rise to unacceptable adverse amenity impacts on the surrounding residential area in terms of noise, traffic and nuisance
The Tribunal received witness statements from four nearby residents: Mr Robert Anson (who resides at No 4 Banksia Terrace); Mr Nich Hajigabriel (who resides at No 334 Mill Point Road); Ms Adele Johnson (who resides at No 331A Mill Point Road) and Mr David Juers (who resides at No 2 Banksia Terrace) seeking the retention of the trading hours of 7 am to 5 pm as per condition 14 of the planning approval granted on 24 March 2015. All four neighbours raised amenity concerns relating to noise associated with the operations of the commercial activity, privacy, parking (particularly in regards to onstreet parking), increased traffic and security issues. Both Ms Johnson and Mr Juers also referred to the impacts arising from operating hours as opposed to trading hours and Ms Johnson raised the issue of odour arising from the kitchen operations.
The Tribunal, pursuant to s 242 of the PD Act, also received written submissions from both Ms Johnson and Mr Juers in respect to the applicant's revised proposal.
Noise
The Tribunal had the benefit of expert evidence from Mr Peter Simpson, a town planning consultant, Ms Rebecca Ireland, an acoustical consultant called on behalf of the applicant, Mr Tom Hockley, a town planning consultant and Mr Terry George, an acoustic engineer, called on behalf of the respondent.
It is clear from the evidence given by both the town planning and acoustic experts that the extended trading hours sought by the applicant has the potential to give rise to unacceptable noise impacts on the residential properties located at No 331A Mill Point Road and No 2 Banksia Terrace (adjoining residential properties).
It was agreed by the acoustic experts that there are a variety of sources that could generate noise emissions that may impact on the amenity of the adjoining residential properties. These included mechanical plant, deliveries to the premises, noise associated with the use of the rear car parking area and noise associated with patrons entering and leaving the premises.
Mr Hockley initially held the view that in the absence of any supporting acoustic evidence, the proposal to extend the trading hours would have the potential to unreasonably impact on the amenity of the adjoining residential properties and should not be allowed.
Ms Ireland completed a number of acoustical assessments of the subject land in respect to noise (15110257-01 dated 25 February 2016; 15110257-02 dated 15 March 2016; and 15110257-3 dated 11 May 2016). According to Ms Ireland, the results of the noise assessments show that the proposed Shop, éé/Restaurant can comply with the assigned noise level associated with the Noise Regulations at nearby residential receivers subject to certain ameliorative measures being implemented. Ms Ireland concluded 'that based on a quantitative amenity assessment criteria, the proposed Shop, Café/Restaurant will comply with the methodologies and noise criteria and the site will not cause unacceptable impact on the acoustic amenity of nearby residential premises'.
Mr George (Lloyd George Accoustics) had the opportunity to review Ms Ireland's assessments and both experts engaged in two conferrals and produced two joint statements for the Tribunal, which resulted in the production of an agreed set of conditions (see Exhibit 34). The conditions were based on the applicant's revised proposal and therefore included conditions relating to the extraneous modifications and time periods outside of the extended trading hours applied for. The acoustic experts agreed that if these conditions were imposed, the extended trading hours sought would not unreasonably impact on the amenity of the adjoining residential properties.
Mr Hockley, in his supplementary witness statement dated 30 January 2017 (supplementary witness statement) accepted that, subject to the imposition of appropriate conditions, the 'unreasonable amenity impacts are likely to be capable of being managed'.
Traffic and parking nuisance
Mr Hockley in his supplementary witness statement accepted that the applicant's revised proposal addressed noise associated with the use of the car parking area between 5 pm and 9 pm, such that the proposal, subject to confirmation through a noise monitoring period, could operate within the limits assigned by the Noise Regulations. He further accepted that the physical measures incorporated into the plans, together with the management measures ameliorated the majority of noise impacts associated with the use of the onsite parking area by staff and patrons.
As to the number of car parking bays provided on-site, Mr Hockley acknowledged the previous assessment by the respondent and did not criticise that assessment. Further, no evidence was adduced by the respondent to demonstrate that the number of car parking bays provided on-site was insufficient to cater for the demand generated by the extended trading hours. Mr Simpson referred to the 2010 and 2011 approvals of the respondent (which granted approval for opening hours from 7 am to 9 pm) and observed that the only difference between those approvals and 2015 approval was that the 2015 approval required the provision of nine car parking bays, cash in lieu for one car bay and nine bicycle bays, while the 2010 and 2011 approvals showed 10 car parking bays. He considered the number of car parking bays provided to be consistent with the 2010 and 2011 approvals and appropriate for the use. He further commented on the provision of bicycle bays as being supportive of the respondent's policy promoting alternative forms of transport.
Mr Hockley was concerned that on-street parking availability during the evening may be limited with residents and visitors occupying these bays during the late afternoon and evening, however, he did not consider that this issue on its own was likely to result in undue and adverse impacts.
There was agreement by the town planning experts that delivery times should be restricted as this activity would have an adverse impact on the amenity of the resident and therefore deliveries should be made prior to 6 pm.
Tribunal's consideration
It is clear from the evidence that the extension of the trading hours from 5 pm to 9 pm has the potential to give rise to unacceptable amenity impacts on the adjoining residents. The concerns raised by the residents are valid, however, these need to be considered in light of the fact that the land is zoned 'Local Commercial' in the Scheme and the historical use of the site for commercial purposes. This Tribunal, and the former Town Planning Appeals Tribunal (TPAT), have considered circumstances where residential uses adjoin commercial sites and held the view that 'the residents adjoining a commercial site are to expect a diminished level of comfort' and that 'it barely needs to be said that residential uses in close proximity to nonresidential uses cannot expect the same degree of amenity as would be found in a homogeneous residential suburb': see New Frontier Pty Ltd and City of Vincent [2013] WASAT 187; St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318; Woolworths Ltd and City of Joondalup [2009] WASAT 41 (Woolworths and City of Joondalup); BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110; and Gosatti Holding Pty Ltd v City of Fremantle (2000) 23 SR WA 367. The same can be said in this instance. It is the degree of impact that will determine whether the development, as proposed by the applicant, is acceptable or not.
Both the acoustic and the town planning experts agree that if ameliorative measures to mitigate potential impacts of the proposed extended trading hours are undertaken then the extended trading hours will not unreasonably impact on the amenity of the residents of the adjoining properties. Although the experts considered the extraneous modifications and suggested ameliorative measures in relation to some of those modifications, the deletion of these ameliorative measures does not impinge on their assessment of amenity in respect to the extended trading hours.
The Tribunal acknowledges the concern raised by the residents of adjoining properties, but is satisfied based on the additional work undertaken by all the experts during the course of this hearing that subject to the ameliorative measures recommended by the experts being imposed on an approval, the degree of impact from the extended trading hours will not be so unreasonable to warrant refusal of the extended trading hours.
Is condition 14 necessary and appropriate in order to protect the amenity interest of the surrounding residential area? Is the second sentence of condition 14 valid having regard to issues of finality, certainty and deferring for later consideration of a non-incidental aspect or aspects of the development leaving open the possibility of the development being carried out in a significantly different manner to that which was approved?
Both town planning experts agreed, and the Tribunal concurs, that condition 14 is necessary and appropriate in some form to protect the amenity of the surrounding residential area.
In Phil Lukin Pty Ltd & Anor and Shire of Busselton [2006] WASAT 124, the Tribunal held at [85] as follows:
… condition cannot lawfully defer, for later consideration, a nonincidental aspect of a development and cannot 'leave open the possibility that development carried out in accordance with the consent and condition will be significantly different from the development for which the application was made' (Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 per Priestley JA; see Randall and Town of Vincent [2005] WASAT 147 at [14] [22]). The determination of whether an aspect of a development is incidental is one of fact and degree in the circumstances of each case[.]
The Tribunal is of the view that the second sentence, as contained in condition 14, lacks finality and/or certainty as the deferment of noise related issues for later consideration leaves open the possibility of a totally different outcome from that applied for and therefore is devoid of certainty. It was accepted by the planning experts, and the Tribunal agrees, that the intent contained in the second sentence of condition 14 could be more appropriately dealt with by the imposition of a number of conditions, as expressed by the acoustic experts, in order to ensure that any noise exceedances were addressed through monitoring and management actions. In essence, it was agreed that condition 14 should be replaced with a number of conditions that addressed the impacts of the extended trading hours on the adjoining residents.
The respondent's principal position in respect to this matter is that the application to vary condition 14 should be refused, particularly in the absence of the information about the location of the exhaust fan to the bakery as issues associated with noise and odour remain unresolved.
The alternative position is that if the Tribunal determines that condition 14 should be varied, then such an approval should only be granted on the basis of the proposed consolidated set of conditions (proposed consolidated conditions), which arise from the Respondent's Revised Without Prejudice Draft Conditions; the Applicant's Response to the Respondent's Revised Without Prejudice Draft Conditions; and the Joint Witness Statement of Expert Witnesses in relation to Noise Conditions. The proposed consolidated conditions are as follows:
1.The maximum trading hours of the Café/Restaurant and Shop shall be limited to 7:00am to 9:00pm, 7 days a week.
2.Deliveries shall be limited to 7:00am to 5:00pm Monday to Saturday and 9:00am to 5:00pm Sunday.
3.The maximum hours of operation for the Café/Restaurant and Shop (including the patisserie and bakery) shall be limited to 5:00am to 10:00pm, 7 days a week.
4.The sale and supply of any food produced on site shall be limited to the patrons of the Café/Restaurant and Shop on site only. No wholesale sales are permitted.
5.Noise monitoring shall be undertaken as follows:
(i)To ensure compliance with the Environmental Protection (Noise) Regulations 1997, the Applicant is to conduct noise monitoring as set out below in (iii)-(v) and in accordance with the Environmental Protection (Noise) Regulations 1997.
(ii)After each occasion of monitoring, the Applicant is to report the results to the City of South Perth within fourteen (14) days.
(iii)The monitoring is to be carried out on two separate occasions. The first occasion is to be within one month of the commencement of trading from 5:00pm to 9:00pm, and the second occasion is to be six months after the first occasion.
(iv)On each occasion of monitoring, the monitoring is to:
-be conducted over a representative period sufficient to quantify the different noise sources in their different operational states including mechanical plant (both speeds), alfresco area patrons and car park activities;
-be undertaken at each residential location identified for in the acoustic reports or representative location.
(v)The monitoring is to be of noise emitted from the approved uses of 333 Mill Point Road.
(vi)If the noise monitoring discloses any exceedances of the Environmental (Noise) Regulations 1997 then the source of the exceedance is to be identified and the applicant is to ameliorate the noise within 28 days. Following the amelioration of noise, noise monitoring is to demonstrate compliance and be reported to the City of South Perth within fourteen (14) days following the noise monitoring.
6.The plan entitled 'Bakery 333 Mill Point Road Air-Conditions [sic] and Mechanical Services Ground & First floor plans' and dated June 2016 is to be complied with.
7.The air conditioning and ventilation equipment is to be as specified in sections 2 and 3 of the attached document entitled 'Mill Point Road Bakery Performance Brief Air Conditioning and Ventilation' and dated 29 April 2016.
8.The acoustic measures, as contained within the revised drawings dated 24 October 2016 shall be implemented and include:
(i)The roof structure above EAF02, extending from the building facade to the boundary wall adjoining 331A Mill Point Road and approximately 1.5 m either side of EAF0.2. Roof to be sheet metal with 50 mm thick, 11kg/m³ installation to the underside.
(ii)Acoustically absorbent screens shall be installed to two sides (Southwest and Southeast) of EAF01. Screens shall consist of 1.2 mm thick steel sheet with 50 mm thick, 11kg/m³ insulation to the equipment side of the screen. Height of the screens shall be 1.5 times the height of the fan above the roof.
(iii)A carport structure shall be constructed above the car bays adjoining the residence of Lot 4 (2) Banksia Terrace. The carport shall be a metal deck roof with 50 mm thick, 11kg/m³ insulation to the underside. The carport roof shall be sealed against the boundary wall to minimise any gaps.
9.Noise management shall be undertaken in accordance with the following:
(i)Delivery drivers, at the time of arrival, shall be verbally instructed by management to turn off their engines while on the premises.
(ii)Music shall not be permitted in the alfresco area.
(iii)Prior to 9am on a Sunday the maximum number of patrons permitted in the alfresco area is 18, unless shown otherwise by the noise monitoring or the alfresco area is provided with a glass or acoustically rated Perspex (e.g Plexiglass Soundstop) screen parallel to Banksia Terrace. The screen shall be constructed for the full length of the alfresco area to a minimum height of 1.5 metres above floor level. Sofit of slab above shall be lined with 50 mm thick, 11kg/m³ insulation (or approved equivalent), which can be covered with perforated or slotted fibre cement/plywood if desired.
(iv)All exhaust and supply air fans shall be fitted with variable speed drives to limit the speed of the fans to 60% of maximum during the night (10pm to 7am Monday to Saturdays and 10pm to 9am Sundays).
(v)Signage is to be installed advising patrons and staff of the surrounding residential area and be respectful, courteous and leave in a quiet manner. Should loud or unruly behaviour be observed by management/staff, management/staff are to request offending persons to leave the premises. Where this is not adhered to, management/staff shall take the following action as required:
-record their vehicle registration number of the offending person(s) and provide to relevant authorities; and
-record the incident in the noise complaints register.
(vi)A noise complaints register is to be maintained and record the following:
-Recipient of complaint;
-Date and time of complaint;
-Name and Address of complainant;
-Reason for compliant; and
-Action taken.
10.An Odour Plan shall be prepared and implemented prior to occupation of the premises, detailing the control and filtration measures that are to be provided to AS1668.2 2012.
The applicant opposes proposed consolidated conditions 3, 4 and 10 and asserts that condition 9(vi) should be modified to refer to the extended trading hours applied for.
Further, in anticipation of the Tribunal's concerns about the extraneous modifications, the applicant's representative prepared modified versions of the proposed consolidated conditions (proposed modified consolidated conditions) not objected to, that deleted references to the extraneous matters. These are as follows:
…
6.The plans entitled 'Bakery 333 Mill Point Road Air Conditioning & Mechanical Services Ground & First Floor Plans' and dated June 2016 is to be complied with, except to the extent that it contains the following changes to the approval of 24 March 2015:
(i)inclusion of bakery extraction fan (EAF02);
(ii)inclusion of roof mounted fan on roof above ground floor foyer area (SAF01);
(iii)minor relocation of shopfront pedestrian entry from Mill Point Road;
(iv)increase in bin store area and inclusion of storeroom and resulting loss of a staff toilet;
(v)internal rearrangement of kitchen layout; and
(vi)identification of additional roof space within loft area for storage of mechanical plant.
7.The air conditioning and ventilation equipment is to be as specified in sections 2 and 3 of the document entitled 'Mill Point Road Bakery Performance Brief Air Conditioning & Ventilation' and dated 29 April 2016, except in respect of EAF02 and SAF01.
8.The acoustic measures as depicted and described within revision 16 of the drawings dated 24 October 2016, with the exception of the 48 degrees pitch sheet metal roof depicted in section B on sheet A08, are to be implemented and include:
(i)Acoustically absorbent screens shall be installed to two sides (southwest and southeast) of EAF01. The screens shall consist of 1.2mm thick steel sheet with 50mm thick, 11kg/m³ insulation to the equipment side of the screen. The height of the screens shall be 1.5 times the height of the fan above the roof.
(ii)A carport structure and supporting wall shall be constructed above the car bays adjoining the residence of Lot 4 (2) Banksia Terrace. The carport shall be a metal deck roof with 50mm thick, 11kg/m³ insulation to the underside. The carport roof shall be sealed against the supporting wall to minimise any gaps[.]
The applicant did not make any suggested modifications to condition 9.
Tribunal's findings in relation to conditions
The test of validity of a condition of planning approval is well known: Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury test). A condition is valid if:
1)it has a planning purpose;
2)it fairly and reasonably relates to the development; and
3)it is not so unreasonable that no reasonable planning authority could have imposed it.
The Tribunal is of the view that conditions 1, 2 and 5 as agreed by the parties satisfy the three limbs of the Newbury test and should be imposed as conditions on the extension of the trading hours.
In regards to conditions 6, 7, and 8, given the Tribunal's findings in respect to the extraneous modifications included in the applicant's revised proposal (see [41]), conditions 6, 7 and 8 should reflect those findings and therefore the proposed modified consolidated conditions should be imposed.
Condition 9 is agreed between the parties but the scope of the agreed condition goes beyond what is being applied for and imposes restrictions on hours outside of the extended trading hours sought. The Tribunal considers that it is appropriate to impose a condition requiring a noise management plan but that plan can only relate to matters that relate to the variation in trading hours. The present drafting of the condition raise some concerns. The Tribunal finds that parts (i), (iii) and (iv) of condition 9 fail to meet the second limb of the Newbury test (nexus test) in that those parts of the condition do not fairly and reasonable related to the variation sought to the trading hours. Parts (ii) and(vi) of condition 9 can be easily modified so that the requirements apply to the trading hours between 5 pm and 9 pm and therefore can be imposed. The Tribunal is satisfied that the behaviour referred in part(v) of condition9 is more likely to occur between the hours of 5pm to 9pm than at other times during the day and therefore considers that part(v) of condition9 reasonably relates to the extended trading hours.
Conditions 3, 4 and 10 are conditions that also fail the nexus test as each of these conditions seek to restrict some operational aspect of the approved use that do not arise from the proposal to extend the trading hours and should not be imposed for the following reasons.
Condition 3 seeks to deal with hours of operation separately to trading hours. The respondent argues that the reference to 'trading' in condition14 of the original approval takes in all activities associated with the approved land uses (except deliveries, which were referred to separately) and does not import the distinction between different types of activity. The respondent asserts that the undertaking of activities outside of the approved hours was not part of the development approval and therefore, not approved by the respondent and that the applicant is, in effect, seeking to modify its proposed use of the subject land by undertaking activities before 7 am and after 5 pm.
Mr Hockley, in this witness statement, states that condition 14 of the planning approval dated 24 March 2015 'restricts trading hours of the eé/Restaurant and Shop to 7 am to 5 pm, seven days a week, it places no time limit on the hours of operation. This suggests that the hours of operation are unlimited so long as no trading to the public occurs after 5 pm or before 7 am, seven days a week'. This view differs from the submissions put by the respondent.
The question of hours of operation is not related to the extension of trading hours and falls outside of the ambit of this review. Clearly, these are two separate functions of the business. The operational activities associated with the bakery, as identified by Ms Gay, were apparently always an aspect of the development and the change in trading hours does not result in an impact on the acoustic or other amenity caused by those activities and therefore a condition imposing a restriction on hours of operation has no nexus with the change to trading hours. If there is a dispute about whether activities occurring outside of trading hours are covered by the development approval, then that is a question for another forum and maybe a further planning approval.
Condition 4, which seeks to prohibit wholesale sales from the site, has no nexus with the extending trading hours being sought. The respondent submits that sales and supply of food on a wholesale basis would constitute an intensification of the use and the imposition of a condition prohibiting whole sales is a proper response to ensuring that the intensification of the use is limited. The Tribunal agrees that wholesale sales would represent an intensification of use, however, there has been no suggestion from that applicant that such sales are intended to take place onsite, in fact, Ms Gay expressly stated in her oral evidence that '[w] are not going to be wholesaling'. (T:23; 14.03.2016) The approved uses of 'Café/Restaurant' and 'Shop' as defined in Sch 1 Definitions of the Scheme do not contemplate the wholesale sale of goods or produce and therefore any such intensification would require a subsequent planning approval.
Condition 10, which requires the preparation of an odour plan, arises in the context of the applicant's revised proposal in regards to the relocation of the extraction fan associated with the bakery. As the Tribunal has determined that this element is one of the extraneous modifications and is to be deleted from the plans, the condition serves no purpose, does not reasonably relate to the extended trading hours and therefore, should not be imposed as a condition.
Whether condition 14 should permit trading hours of 7 am to 9 pm seven days a week so as to be consistent with approvals granted by the respondent in respect of the subject land on 25 May 2010 and 13 December 2011
In Rossi and City of Bayswater [2010] WASAT 33; (2010) 70 SR (WA) 107, the Tribunal, at [23], observed as follows:
Orderly and proper planning requires that planning decisions be made in a consistent way in relation to a site where the planning framework is the same and the circumstances have not changed in any substantial or material way[.]
A decision to approve the extended trading hours is consistent with the previous decisions of the respondent, although due to the additional expert evidence available to the Tribunal in this review, any final decision will be subject to appropriate conditions.
Conclusion
The application for review should be allowed and the determination of the respondent be set aside and a decision substituted approving the application subject to conditions.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The order of the Tribunal made on 20 December 2016 is varied so that the proposal under review is the applicant's revised without prejudice proposal dated 24 October 2016, including the explanatory and supporting commentary dated 25 October 2016 but deleting all reference to the following modifications:
•the bakery extraction fan identified as EAF02 on drawing A08 of the drawings dated 24 October 2016;
•inclusion of roof mounted fan on roof above ground floor foyer area;
•minor relocation of shopfront pedestrian entry from Mill Point Road;
•increase in bin store area and inclusion of storeroom and resulting loss of staff toilet;
•internal rearrangement of kitchen layout;
•removal of seating layout configuration from seating plan;
•identification of additional roof space within loft area for storage of mechanical plant; and
•inclusion of skylight windows in roof above loft.
2.The application for review is allowed.
3.The decision of the respondent made on 23 June 2015 refusing to vary condition 14 of planning approval granted on 24 March 2015 is set aside and a decision is substituted that condition 14 of planning approval granted on 24 March 2015 is deleted and replaced with the following condition 14:
14.1The maximum trading hours of the Café/Restaurant and Shop shall be limited to 7 am to 9 pm, seven days a week.
14.2Delivery shall be limited to 7 am to 5 pm Monday to Saturday and 9 am to 5 pm Sunday.
14.3Noise monitoring shall be undertaken as follows:
(i)To ensure compliance with the Environmental Protection (Noise) Regulations 1997 (WA), the applicant is to conduct noise monitoring as set out below in (iii) (v) and in accordance with the Environmental Protection (Noise) Regulations 1997.
(ii)After each occasion of monitoring, the applicant is to report the results to the City of South Perth within fourteen (14) days.
(iii)The monitoring is to be carried out on two separate occasions. The first occasion is to be within one month of the commencement of trading from 5 pm to 9 pm, and the second occasion is to be six months after the first occasion.
(iv)On each occasion of monitoring, the monitoring is to:
- be conducted over a representative period sufficient to quantify the different noise sources in their different operational states including mechanical plant (both speeds), alfresco area patrons and car park activities;
- be undertaken at each residential location identified for in the acoustic reports or representative location.
(v)The monitoring is to be of noise emitted from the approved uses of No 333 Mill Point Road.
(vi)If the noise monitoring discloses any exceedances of the Environmental Protection (Noise) Regulations 1997 then the source of the exceedance is to be identified and the applicant is to ameliorate the noise within 28 days. Following the amelioration of noise, noise monitoring is to demonstrate compliance and be reported to the City of South Perth within fourteen (14) days following the noise monitoring.
14.4The plans entitled 'Bakery 333 Mill Point Road Air Conditioning & Mechanical Services Ground & First Floor Plans' and dated June 2016 is to be complied with, except in respect of the following elements:
(i)inclusion of bakery extraction fan (EAF02);
(ii) the inclusion of roof mounted fan on roof above ground floor foyer area (SAF01);
(iii)minor relocation of shop front pedestrian entry from Mill Point Road;
(iv)increase in bin store area and inclusion of storeroom and resulting loss of staff toilet;
(v)internal rearrangement of kitchen layout; and
(vi)identification of additional roof space within loft area for storage of mechanical plant.
14.5The air conditioning and ventilation equipment is to be as specified in sections 2 and 3 of the document entitled 'Mill Point Road Bakery Performance Brief Air Conditioning & Ventilation' dated 29 April 2016, except in respect of EAF02 and SAF01.
14.6The acoustic measures as depicted and described within revision 16 of the drawings dated 24 October 2016, with the exception of the 48 degrees pitch sheet metal roof depicted in section B on sheet A08, are to be implemented and include:
(i)Acoustically absorbent screens shall be installed to two sides (southwest and southeast) of EAF01. The screens shall consist of 1.2 mm thick steel sheet with 50 mm thick, 11kg/m³ insulation to the equipment side of the screen. The height of the screens shall be 1.5 times the height of the fan above the roof.
(ii)A carport structure and supporting wall shall be constructed above the car bays adjoining the residence of Lot 4 No 2 Banksia Terrace. The carport shall be a metal deck roof with 50 mm thick, 11kg/m³ insulation to the underside. The carport roof shall be sealed against the supporting wall to minimise any gaps.
14.7Noise management shall be undertaken in accordance with the following:
(i)Music shall not be permitted in the alfresco area between the hours of 5 pm and 9 pm.
(ii)Signage is to be installed advising patrons and staff of the surrounding residential area and be respectful, courteous and leave in a quiet manner. Should loud or unruly behaviour be observed by management/staff, management/staff are to request offending persons to leave the premises. Where this is not adhered to, management/staff shall take the following action as required:
- record the vehicle registration number of the offending person(s) and provide to relevant authorities; and
- record the incident in the noise complaints register.
(iii)For trading hours between 5 pm and 9 pm a noise complaints register is to be maintained and record the following:-
•recipient of complaint;
•date and time of complaint:
•name and Address of complainant;
•reason for compliant; and
•action taken.
I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
_________________________________
MS M CONNOR, MEMBER
2
9
6