Georgiou Corporation Holdings Pty Ltd and City of Stirling - [2009] WASAT 51

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: GEORGIOU CORPORATION HOLDINGS PTY LTD and CITY OF STIRLING [2009] WASAT 51

MEMBER: MR P McNAB (MEMBER)

HEARD: 13 OCTOBER 2008

DELIVERED : 9 FEBRUARY 2009

FILE NO/S: DR 305 of 2008

BETWEEN: GEORGIOU CORPORATION HOLDINGS PTY LTD
Applicant
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning - Development application - City Centre concept in special precinct - Planning framework contemplated 12 storey office centre-point and other subsidiary buildings - Proposal for subsidiary commercial/residential/office building of six storeys - 100% site cover proposed for building - Parking shortfall - Outline Development Plan contemplated 30% site cover with possibility of variation - Concept plans indicating podlike developments with significant publicly accessible civil or open space - Whether specified site cover figure an average for entire precinct - Whether permissible to vary to 100% site cover - Planning consensus indicated development should have variation because it met other objectives in planning framework and proposed building otherwise regarded as an impressive development - Tribunal finding site cover applied to individual allotments - Tribunal refusing to approve development - Planning framework would be undermined by 100% site cover and subsequent ad hoc approvals - Principles of interpretation of planning instruments - Words and phrases: 'site cover'

Legislation:

City of Stirling Town Planning Scheme No 38 - Stirling City Centre Scheme, cl 5.8, cl 5.8.1, cl 5.8.2, cl 5.8.4, cl 5.8.4.(d)
Metropolitan Region Scheme

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant: Dr S Willey
Respondent: Mr A Roberts

Solicitors:

Applicant: Minter Ellison
Respondent: McLeods Barristers & Solicitors

Case(s) referred to in decision(s):

Bojanich and Western Australian Planning Commission [2006] WASAT 315
Bullock v Maroochy Shire Council [2007] QPEC 89
Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238
P Tame v Clarence City Council [2003] TASRMPAT 257
Seattle Bay Pty Ltd and Western Australian Planning Commission [2006] WASAT 261
Stein and Shire of Chapman Valley [2006] WASAT 105

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Georgiou Corporation Holdings Pty Ltd sought a review of the refusal of the City of Stirling to approve the development of a commercial/residential/office building of six storeys with 100% site coverage and a shortfall in the number of onsite car parking bays. The proposed building was to be located near to the existing IKEA site in Innaloo.
The proposed development was in a special precinct and planning for the area had taken place over a number of years. This was reflected in a number of evolving documents. The proposed development was generally regarded as of impressive design. The City's own planning committee and the City's officers had recommended approval of the proposal.
Nevertheless, the Council decided that the proposed site coverage significantly exceeded that contemplated by the planning framework and refused planning approval.
The planning framework was to be found, as has been mentioned, in various documents and instruments and appeared to contemplate a site coverage of 30%, with the possibility of a variation. The Tribunal discussed the meaning of 'site cover' and related terms and concluded that the planning framework, on its true construction having regard to its context and purpose, fixed 30% site coverage for each relevant allotment. In particular, conceptual plans indicated significant publicly accessible civic or open space and 'pod like' developments in the precinct. The Tribunal also discussed the essentially ad hoc and uncertain results that might follow from a more liberal characterisation of the prescribed site coverage.
The Tribunal upheld the City's decision and dismissed the application.
What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.

Introduction

On 5 August 2008, the City of Stirling (City), over the recommendation and detailed advice of both its officers and its planning committee, refused planning approval for a development which may be briefly summarised as follows:
•A six storey development in Innaloo comprising almost 100% site cover, as that expression is commonly understood.
•With mixed use commercial (ground floor retail), offices (over four floors) and residential elements, and onsite parking.
In very broad summary, the officers agreed with the arguments presented by the applicant developer that provided a justification for a variation on both the site coverage and onsite parking requirements based, allegedly, on the significant advancement of other objectives provided for in the planning framework.
A review was sought in this Tribunal on 19 August 2008 and the matter was heard on 13 October 2008.
Final written submissions and certain revisions to the proposed development were received after the hearing, the final of which came in on 6 November 2008.

Issues to be decided

It is common ground that the two issues to be decided in the review are:
1.Are there sufficient grounds to permit a variation of the site cover from a maximum of 30% to 100%?
2.Are there sufficient grounds to permit a shortfall of car parking spaces of approximately 48 spaces?
If the answer to either of these questions is 'no', then the development should not be approved.
It is convenient to proceed to the first and critical issue of site coverage, although, where convenient, reference will be made in the description of the planning framework to items dealing with parking matters.

The proposal and its context

The proposal is, as has been mentioned, for the development of a lot in a part of recently subdivided Innaloo, by the construction of a modern, six storey office/commercial/residential building. The main elements of the proposal in relation to the subject land are as follows. Development is contemplated of some 2,400 square metres, roughly the western quaternary, or part of what was, I understand, originally described as Lot 1 Sunray Drive, Innaloo, which is the corner of Tassels Place and Ellen Stirling Boulevard, Innaloo, or more particularly now No 2 (Lot 221) Tassels Place, Innaloo.
The immediate locality presents as a number of large, undeveloped sites six in all, all very close to a large IKEA complex (on the southern side); the Mitchell Freeway; and the Stirling Train Station.

The planning framework

This review is principally governed by the City of Stirling Town Planning Scheme No 38 Stirling City Centre Scheme (TPS 38), where the zoning and development control is specified as 'Precinct 4', namely a 'Mixed Use, Office and Entertainment Precinct' (see cl 5.8 of TPS 38). TPS 38 'covers land located in and around the Innaloo Shopping Centre'. It came into force in 1997, with some relevant but incidental amendments thereto in 2004.
The zoning under the Metropolitan Regional Scheme (MRS) is 'City Centre', and as I understand it, the Western Australian Planning Commission (WAPC) has or will consent to the approval of this development under the MRS. (See the discussion in the Outline Development Plan (ODP), at 32 33, on the need for joint approval of development applications.)
The 'Statement of Intent' for the precinct (cl 5.8.1 of TPS 38) is as follows (emphasis added):
This Precinct is considered to be a key area in terms of the success of the Stirling Regional Centre and its integration with the Stirling Railway Station.
Currently [that is, 1997] it comprises largely undeveloped but degraded damplands/wetlands and directly abuts the Stirling Railway Station as delineated on the Scheme Map.
While major scale development in this Precinct is considered essential to ensure the success of the Regional Centre, design of such development should retain key elements of the existing landscape/wetland environment in the northeast corner of the Precinct if practical. Cycleway/pedestrian links are proposed between this Precinct and other Stirling City Centre Precincts, to the residential areas and the Railway Station.
The major land uses within this Precinct will comprise a large highrise office park with buildings having accessibility and visual exposure to both the [railway] station and the freeway. Major car parking areas are proposed to be accessed off the realigned Oswald Street and Cedric Street as required. The office towers are recommended up to 12 storeys in height adjoining the Stirling Railway Station.
In association with the office park it is proposed to develop an entertainment/residential node at a lower scale (ie eight storey maximum height) containing uses such as a tavern/brasserie, alfresco restaurants and markets surrounding a central open piazza. Major 'people' attractions such as cinemas and public amusement/leisure centres are considered essential as it is envisaged that this area will be a focus of nightlife activity based on proximity to public transport and pedestrian links; and to the Mitchell Freeway. It will also offer limited support retail facilities for office workers in the office park. A significant provision of residential development both in stand alone and mixed use buildings will be encouraged by Council.
Once again the importance of maintaining a landscaped environment is recognised. However, the scale of the adjoining Stirling Link Road/Mitchell Freeway interchange, as well as the height of the railway station overbridge and the Stirling Link Road embankments, provide opportunities for large scale high rise development which will be separated from residential areas by the realigned Oswald Street and pedestrian systems.
Opportunities also exist within this Precinct to develop the surplus road reserve for commercial activities which would offset the cost of the Main Roads WA relocating existing embankments.
South of the proposed road under the Stirling Link Road, a triangular parcel of land will be created of approximately one hectare in area. This would be available for development and would be suitable for a facility providing accommodation for business persons. This would have good regional accessibility and visual exposure to the Stirling Link Road and the railway/transfer station.
One of the specific objectives of the Scheme is to facilitate the resubdivision of land holdings so as to create new allotments based on a redistribution of land brought about by Scheme requirements, the identification of surplus land and the extent of reservation requirements for road purposes.
The Tribunal has also had regard to the following clauses of TPS 38: cl 5.8.2 and cl 5.8.4. Paragraph 5.8.4(d) provides as follows (emphasis added):
d)Floor Area, Plot Ratio, Site Cover and Density for Nonresidential or Partially Nonresidential Development
i)Floor areas are limited by the requirement that all carparking associated with the development is accommodated onsite.
ii)The permitted plot ratio is 2.5. Council may increase the plot ratio to 5.0 for a comprehensively designed 'office tower' development including landmark point building(s) clearly visible from the Freeway and an 'urban square' on the pedestrian axis near the Transfer Station.
iii)Unless otherwise approved by Council, the site cover for the office towers development is limited to 30% of the total site. The balance of the site is to be extensively landscaped and/or developed for publicly accessible civic space.
iv)Council may grant a plot ratio concession of .5 above the plot ratios mentioned above provided that the excess floor area is dedicated to residential uses or community activities.
e)Setbacks
…
f)Landscaping
…
g)Car Parking and Access
i)The number of car parking spaces required will be as specified in Table 1 of the Scheme. Council will however require that a minimum of 50% of the car parking associated with commercial or mixed commercial/residential developments shall be provided in undercroft parking or a decked car parking station or by way of Parking Contribution to Council to enable Council to construct car parking in the vicinity.
ii)Extensive areas of open air car parking to service Precinct 4 development will not be favoured.
iii)Vehicular access to all major car parking areas shall generally be confined to Oswald Street (realigned) and the Stirling Link Road underpass. Only limited access will be permitted from Cedric Street with the concurrence of Main Roads WA.
h)Pedestrian/Cycle Access
…
j)Major Requirements Prior to Development Commencement
(aa)Development within the Precinct shall be generally in accordance with the [ODP] …
No development shall commence until the following has occurred or arrangements have been made to the satisfaction of the Council for:
i)Realignment and construction of Oswald Street.
ii)The development of an Outline Development Plan, to the satisfaction of the Western Australian Planning Commission and the Council, for the Precinct which addresses, but is not limited to, the provision for a Road Link(s) from the Scheme Area, across Stephenson Highway extension to Osborne Park Industrial Area …
iii)The redistribution of existing land holdings in the Precinct …
iv)The development of a Drainage Management Plan …
v)Satisfactory arrangements and environmental approval for peat removal and development of remnant wetland areas within and outside the Precinct.
vi)Sewer extension to service the development
vii)Payment of any relevant General Costs or Precinct Costs associated with Scheme Works as outlined in the Scheme.
viii)The replacement of the Cedric Street wetland within the Scheme Area or elsewhere, should such replacement be required.
ix)Determination of locations for car parking station/s within the Precinct and Parking Contribution levels.
and Council may impose on any development approval a condition prohibiting commencement until written notification to proceed is given to the applicant by the Council.
Critically, under TPS 38 development is required to be 'generally in accordance with [an approved] Outline Development Plan [ODP]'.
The relevant ODP ('Stirling Regional Centre Precinct 4') entered into force in 2004.
The Tribunal has had particular regard to the following provisions of the ODP, namely Pt 1 and the associated 'Precinct 4 Design Guidelines' (at 3.2). These later provisions, so far as is relevant, are as follows (emphasis added):
3.2MASSING AND SCALE
3.2.1Building Height
It is envisaged that a variety of building heights will be appropriate within the precinct. Office developments that form a landmark structure may be built up to 12 storeys in height with residential and entertainment uses up to eight storeys. Other uses within the Precinct will generally be between five and three storeys in height. Buildings and front entrances are to be orientated towards the street frontage with car parking and services areas to the rear. Where parking is provided as an undercroft adjacent to designated active frontages or facades of interest, it should be appropriately screened by facade treatments or active uses along the street.
3.2.2Plot Ratio
The floor area will be determined based on the ability to provide all car parking associated with the development on site. The permitted plot ratio is 2.5:1, however, the council may increase the plot ratio to 5:1 for a comprehensively designed development which incorporates a landmark feature.
3.2.3Site Coverage
A site coverage of 30% is identified in [TPS 38], however, variations to the site coverage requirements of [TPS 38] will be considered where the development is located to create active street frontages, as identified on the ODP, and promotes active street frontages and pedestrian amenity.
3.2.4Setbacks
Setbacks are identified in [TPS 38], however, variations to the setback requirements of [TPS 38] will be considered and may be required where development, located with frontage to streets, provides an active frontage while also providing pedestrian shelter. The variations to the required setbacks should promote an urban edge to the street rather than buildings isolated in landscaped surrounds …
The ODP records that in 1994 the following objectives were considered in a structure plan (emphasis added):
STIRLING REGIONAL CENTRE STRUCTURE PLAN
The Stirling Regional Centre Structure Plan 1994 is the most comprehensive planning, transport and land use analysis that currently exists. The structure plan divides the entire area into six precincts with the subject site being located within the Core Precinct.
The core precinct provides the central axis of the Stirling Regional Centre. The subject site is for office on the northern portion of the site and service commercial land uses on the southern portion of the site. The structure plan further identifies that the office development should be high rise with good exposure to the station and freeway. The site should also incorporate an entertainment node and a business hotel.
In terms of traffic, the structure plan identifies the need for an eastwest link to connect Osborne Park with the Core Precinct …
The Structure Plan promotes the retention and extension of the existing pedestrian cycle way system …
The Structure Plan identifies the following key planning issues in consideration of the structure plan.
•Key role of the Stirling [Train] Station;
•Movement systems and linkages;
•Environmental and landscaping opportunities;
•The need to create a diverse and vibrant regional centre.
The built form identified for the subject site includes a landmark structure identifying the regional centre, and pod type development up to four storeys (separate buildings in landscaped surrounds) in the northern portion of the site and wall type development (buildings with a strong ground connection responding to the pedestrian scale) in the southern portion of the site.
The long term indicative plans associated with the ODP suggest large areas of open space ('landscape surrounds' or 'publicly accessible civic space') or pedestrian environments with what appear to be podtype buildings. Thirty per cent site cover might be achieved on these plans, but these plans are, as I have said and as the ODP makes clear, only 'indicative' in nature.
It will be immediately noticed from the discussion of these interrelated instruments that on the face of it a 30% figure for site cover for the proposed northerly office towers development has transmogrified itself over seven years or so into a general 30% site cover. Alternatively, it may be, as Mr Roberts submits, that the northern development was in contrast to the IKEA southern development, and that this 30% standard has been clarified in the ODP. With respect, this is a plausible interpretation of these events.
Alternatively, the ODP might have set such a standard, possibly because of the apparent absence of any such specification elsewhere in the Scheme and the desirability, given other goals (such as having 'publicly accessible civic space') of setting a target to indirectly achieve these goals.
This history and speculation, and the general 'looseness' in the expression of these objectives might, in part, also explain why the 'planning consensus' in this case has, it appears, also taken what may be described as a fairly relaxed attitude to the 30% site cover figure, given the ease of its dispensation by the planners.
But is this approach permissible? I will return to this issue below after considering the evidence and the principles deriving from the authorities.

The evidence from the experts

Evidence was given on parking and traffic matters by Mr White and Mr Veal.
It is convenient to defer consideration of such evidence, if necessary, until discussion of the main issue of site cover.
On planning issues, expert evidence was given by Mr Davies and Mr Kotsoglo.
The Tribunal has also had regard to the opinions of the officers below, which, as has been mentioned, supported the applicant's proposal.
It is convenient to again mention that the WAPC has supported the development under the MRS, but no rationale has been provided for the WAPC's position. In any event, the planning considerations motivating that organisation are likely to be quite different to those of the City under their planning framework.
On the central issue of site cover under TPS 38 and the ODP, the expert evidence may be broadly summarised as suggesting support for the development.
However, Mr Kotsoglo's evidence did come with one important reservation, which Mr Roberts, counsel for the City, drew particular attention to. That was, as regards site coverage for future development, the burden of achieving the 30% figure would fall upon future developers if this development took place at 100% coverage.

Site cover

The meaning of, and application of, this term 'site cover' is central to the outcome of this review. It is, I think, in planning law and practice a 'term of art' and ordinarily appears as one of a suite of measures connected with controlling scale and density. Indeed, this is the context in which the term appears here in both TPS 38 and in the ODP.
These measures ordinarily include height restrictions, setback controls, building envelope requirements, plot (or floor area) ratios and other restrictions on site organisation (such as prescribed amounts of landscaping).
The Oxford English Dictionary gives the following relevant meaning of 'site':
The ground or area upon which a building, town, etc., has been built, or which is set apart for some purpose. Also, in mod. use, a plot, or number of plots, of land intended or suitable for building purposes, and, in wider use, a piece of ground or an area which has been appropriated for some purpose; the scene of a specified activity. Freq. in comb. with the first element indicating the (intended) use of the area as building, caravan, landing, launching, picnic (etc.) site …
In P Tame v Clarence City Council [2003] TASRMPAT 257 site cover was defined in the planning scheme there under review to mean:
[T]he site covered by buildings measured to the extremities of external walls and includes all outbuildings, car ports and all other nonhabitable areas except pergolas, sundecks and the like. (Car ports are to be measured to the edge of the outer supports.)
In Bullock v Maroochy Shire Council [2007] QPEC 89, the plan under review defined site cover to mean:
[T]he proportion of the site covered by buildings, fixed structures or outdoor storage areas but does not include unroofed car parking areas; where the area covered by buildings or other structures is measure[d] to coincide with the outer limits of the building or structure that is above the level of the adjoining land.
The Blue Mountains Local Environmental Plan 2005 (Sch 1, Pt 1, Div 1) refers to site coverage (under the heading 'Building envelope') as follows (emphasis added):
(1)Building height
(a)Buildings shall not exceed a maximum building height …
(b)External walls fronting a public place shall be contained within a building envelope …
(2)Building setback Development shall provide front and side setbacks consistent with that of adjacent buildings in the precinct.
(3) Site coverage
(a)The maximum site cover for buildings is 50 per cent of the total allotment area.
(b)The minimum area to be retained as soft, pervious or landscaped area (excluding hard surfaces) is 40 per cent of the total allotment area.
Thus, the term ordinarily denotes a precise measurement related to spatial density control by reference to physical structures (usually buildings) on land at ground level, usually a specified parcel or parcels in a particular area, expressed in relation to the remaining proportion of land which is usually developed (such as by open air parking or landscaping), but which is unoccupied by these physical structures.

Application of these principles

There is a paradox in this review: as I have indicated, the planning consensus seems to suggest that site cover is a relevant standard and that it must be addressed, and that variation of it is in issue. But such a variation process is, having regard to the design of the proposed development and the alleged meeting of other objectives of the ODP, in effect, to be assigned a lower value in the hierarchy of planning values applicable here so low, it appears, that it can be effectively ignored in favour of these other objectives.
Alternatively, the planning consensus here appears to be, as I have earlier indicated, that site cover should be regarded as very general and flexible criteria, almost to the point where its consideration can be deferred to an appropriate future case.
I have elsewhere set out the principles to be applied in interpreting planning instruments. See, for example, Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238 at [35] [37], to which attention has been drawn by counsel for the applicant, Dr Willey. In general, a liberal interpretation of planning instruments is preferred because of their nature.
Once, however, it is accepted that 30% site cover is a standard (albeit to be applied, as may be accepted, with some flexibility), even using liberal principles of interpretation, one would ordinarily expect, absent some tolerably clear indication to the contrary in the planning framework, that each development would be expected to conform to that standard. That must, I think, be the starting point.
Of course, speaking generally, departures from the standard could be said to be contemplated by the planning framework itself for some good planning reason (including having regard to building design or site considerations or the achievement of other objectives which, say, could not be achieved without the exercise of such flexibility). Cf, however this observation in Seattle Bay Pty Ltd and Western Australian Planning Commission [2006] WASAT 261 at [29]:
The Tribunal would make the comment that, in the normal course of events, flexibility would not extend to the relaxation of a standard by 50%. The applicant must look to other factors to support its position.
However, generally speaking, also the greater the deviation from the specification, the greater the justification that would be needed. Here, however, and with respect, no such proportionate justification has been offered for a 100% site cover. I put aside, for these purposes, views expressed, for example by Mr Davies (an expert planner for the applicant) to the effect that 30% site cover is nonsensical given the development of the precinct as a whole.
There is no real planning justification other than, for example, the opinions expressed by the officers where they described the building, amongst other things, as a high quality architectural outcome to showcase the precinct which would also achieve other objectives. Why do such opinions necessarily justify 100% site cover when what is required under this analysis of proportionality is, in effect, a very compelling case? Even if proportionality is not the correct test, then on ordinarily understood planning principles, if 30% site cover is a preferred target, then sufficient justification must exist for a substantial increase to 100% site cover.
Alternatively, if there is some rational criteria, proposed 'masterplan' or understanding or agreed, verifiable methodology for achieving that site cover goal over time in the precinct as a whole (other than simply case by case approval, combined with deferral to consideration of it in other projects), it has not been placed before the Tribunal.
In any event, I do not think that 'averaging' across various developments is contemplated by the standard. This is principally so as, ordinarily, the expression 'site cover' envisages, as we have seen, its application to individual lots because that is intrinsic to its conceptual nature: the term usually relates to buildings on a particular site. Of course, developments are usually assessed and approved this way, as well, and for good reason, as the sum of the parts will tend to reflect the standards imposed at each stage of development.
In any event, if simple averaging were to be permitted, no satisfactory mechanism has been advanced that points to the relative certainty of the variables to be averaged (whether they be as to time, volume, space or any other similar characteristic).
However this may be, I do not think that the planning framework contemplates or permits such latitude whereby such opinions, in effect, can override the intent of the ODP where, as both parties ultimately agree, a 'site coverage of 30% is identified'.
The tolerably clear purpose of the restriction to 30% per lot or development (with permitted deviations, as I have indicated) taken with other measures is to provide, at least in part, a significant measure of open space and pedestrian access, described elsewhere as 'publicly accessible civic space'. How can the citizen (or developer, for that matter) who may be expecting this outcome as to 'civic space' be assured that it will be achieved when the first building approved in the nonIKEA side of the land makes no allowance whatever for achieving such goals? Is a future developer or owner expected to meet such goals? If so, how is this to be equitably achieved?
If this is not now what is intended, as regards the aim of significant amounts of 'publicly accessible civic space', or if some sort of averaging or other mechanism is now contemplated, then a process of amendment to the ODP should be pursued setting out such matters transparently.

Parking issue

Strictly speaking, in light of the Tribunal's firm conclusions reached on the question of site coverage, it is unnecessary to pass any comments upon the secondary issue of parking variations. However, I would make two brief comments.
First, the suggestion, perhaps made indirectly, that any part of the traffic conditions be made, in effect, somehow 'personal' to the applicant corporation does not appear to meet, assuming it otherwise possible to achieve, the criteria discussed for example in Stein and Shire of Chapman Valley [2006] WASAT 105 at [87]. In addition, as Mr Roberts submits, generally speaking conditional planning approval runs with the land, irrespective of its ownership. There may also be problems, as Mr Roberts submits, with the monitoring and enforcement of the proposed 'green travel plan'. However, it is unnecessary to reach any concluded or final view on these matters.
More importantly, and in any event, it is clear that further planning needs to take place as to the traffic and parking outcomes for the precinct. This appears to be in process and the outcome of those enquiries should be awaited.
It is no doubt frustrating for the applicant to be faced with refusal for what is, standing by itself, an impressive proposed development with substantial support from various planners and regulators. However, if I may, I adapt the words of my colleague Senior Member Parry who said in relation to another, albeit unrelated, planning matter in Bojanich and Western Australian Planning Commission [2006] WASAT 315 at [67] (emphasis added):
The Tribunal can certainly understand the applicants' frustration with the slow pace at which strategic planning … has apparently occurred. Urban planning and environmental considerations require that the strategic planning process for this [particular] area be finalised quickly. However, orderly and proper planning is seldom simply a matter of remedying frustrations.

Orders

For the reasons given above, the orders of the Tribunal are:
1.The application for review is dismissed.
2.The decision under review is affirmed.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER