GILBRIDE and CITY OF WANNEROO - [2009] WASAT 227

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: GILBRIDE and CITY OF WANNEROO [2009] WASAT 227

MEMBER: MR J JORDAN (MEMBER)

HEARD: 17 AUGUST 2009

DELIVERED : 13 NOVEMBER 2009

FILE NO/S: DR 189 of 2009

BETWEEN:
KEITH GILBRIDE
KELSHORE PTY LTD
POINTSIDE PTY LTD
NEW EAGLE NOMINEES PTY LTD
Applicants
AND
CITY OF WANNEROO
Respondent

Catchwords:

Town planning Development refusal Change of use of tenancies in existing commercial building Proposed takeaway food outlet and a liquor store After hours operation In Centre zone Subject to Agreed Structure Plan Wanneroo Road West Precinct in Agreed Structure Plan Designated Business in structure plan Adjoining designated Residential land in same precinct Intent of precinct to provide transition between Wanneroo Road and existing residential development to west Impact on amenity of neighbouring residential use Mix of permitted and discretionary uses

Legislation:

City of Wanneroo District Planning Scheme No 2, cl 3.12.2(d), cl 3.13.3, cl 6.8, cl 9.8.2, cl 9.8.3, Pt 9
Liquor Licensing Act 1988 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)

Result:

Application for review allowed
Planning approval granted for the proposed changes of use to takeaway food outlet in tenancy 2 and a liquor store in tenancy 12 and tenancy 13 at No 955 - 957 Wanneroo Road, Wanneroo

Category: B

Representation:

Counsel:

Applicants: Ms B Moharich
Respondent: Mr J Meggitt (Representative)

Solicitors:

Applicants: Belinda Moharich Planning & Environmental Lawyer
Respondent: Allerding & Associates (Town Planners)

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal by the City of Wanneroo of an application for planning approval to change the use of tenancy 2 from bakery to takeaway food and tenancies 12 and 13 from showroom/office and takeaway food outlet, respectively, to a liquor store, in the existing building at No 955 - 957 Wanneroo Road, Wanneroo.
The City of Wanneroo refused the application because of concern about the proposed uses not being contemplated in the original development approval for the site and the impact the uses would have on the amenity of the neighbouring residential area.
The Tribunal formed the view that the proposed uses would be consistent with designated business use of the site and with achieving the intent of the structure plan for the precinct of providing a transition between Wanneroo Road and the established residential area to the west. It was also found that the proposed uses would have an acceptable level of impact on the amenity of the existing residential development to the west and on the future development of the adjoining medium density residential lot.
The Tribunal upheld the application for review and allowed the proposed changes of use.

Introduction

These proceedings involve an application brought by Mr Keith Gilbride, on behalf of himself, Kelshore Pty Ltd, Pointside Pty Ltd and New Eagle Nominees Pty Ltd (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Wanneroo (City) on 5 May 2009 to refuse an application for change of use of tenancies at No 955 957 (Lot 502 and Lot 503) Wanneroo Road, Wanneroo (site).

Site, locality and proposed use

The site is on the west side of Wanneroo Road opposite the Wanneroo Shopping Centre. Planning approval was granted in 2005 for construction of the buildings on the site and with subsequent planning approvals there are now 14 tenancies. These approved uses for the tenancies are a restaurant, three showroom/offices, a takeaway/office, a convenience store, a bank, a TAB, a bakery (Cheesecake Shop) and five takeaway fast food businesses.
The site has parking at the front between the building and Wanneroo Road and across the rear, adjacent to the rear boundary. Vehicular access to the site is from Shaw Road at the north, which is closed at Wanneroo Road end, Hastings Road at the south, which has a lightcontrolled intersection with Wanneroo Road, and from a leftin and leftout crossover to Wanneroo Road.
To the west, there is abutting the site a vacant lot formerly used as a primary school, and beyond that is a residential area of single houses. To the west of the residential area is Lake Joondalup. To the north and south fronting Wanneroo Road are commercial premises and to the northwest is a new primary school.
Proposed is the change in use of tenancy 2 from bakery to takeaway food outlet and tenancy 12 and tenancy 13 from showroom/office and takeaway food outlet, respectively, to a single liquor store.

Planning framework

Under the Metropolitan Region Scheme (MRS) the site is zoned Urban and abuts Wanneroo Road, which is reserved as 'Primary Regional Road'.
Under the City of Wanneroo District Planning Scheme No 2 (DPS 2) the site is zoned Centre. Clause 3.13.3 of DPS 2 provides that there be no subdivision or development in the Centre zone until an agreed structure plan has been prepared and adopted under Pt 9 of DPS 2. Development must be in conformity with the provisions of the agreed structure plan.
Clause 6.8 of DPS 2 outlines matters to be considered when determining planning applications. These include:
(a)the aims and provisions of this Scheme and any other relevant town planning scheme(s) operating within the Scheme Area;
(b)the requirements of orderly and proper planning …
…
(f)any agreed structure plan prepared under the provisions of Part 9 of the Scheme …
…
(i)the compatibility of a use or development within its setting;
(j)any social issues that have an effect on the amenity of the locality;
…
(n)the preservation of the amenity of the locality;
(o)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
…
(q)the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(aa)any other consideration the Council considers relevant.
The site is subject to the respondents' Wanneroo Town Centre Agreed Structure Plan (As Amended) Structure Plan No 23 (Agreed Structure Plan). Clause 9.8.2 of DPS 2 states:
Where an Agreed Structure Plan imposes a classification on the land included in it by reference to reserves, zones (including Special Use Zones) or Residential Density Codes, until it is replaced by an amendment to the Scheme imposing such classifications:
a)the provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme; …
Clause 9.8.3 of DPS 2 provides that a provision, standard or requirement of a structure plan should be given the same force and effect as if it were a provision, standard or requirement of DPS 2.
Within the Agreed Structure Plan, the site forms part of the Wanneroo Road West Precinct. The statement of intent for the Wanneroo Road West Precinct is at cl 6.3(a) of the Agreed Structure Plan and states, relevantly:
This Precinct provides a transition between busy Wanneroo Road and established residential development to the west. It also supports the overall development of the Town Centre as a business centre …
Clause 6.3(b) of the Agreed Structure Plan outlines the intended activity mix by listing a range of preferred 'P' uses or discretionary 'D' uses. At cl 6, it states:
…
Preference will be given to proposals incorporating the specific land use/s listed under the heading 'P' Uses[;] however[,] consideration will be given to other uses ('D' uses) applicable to the land use classifications referred to in Section 3 …
At cl 7.4 of the Agreed Structure Plan, it states:
'P' Uses:
If an application under the Scheme for Planning Approval involves a 'P' Use, the Council shall not refuse the application by reason of the unsuitability of that Land Use. Council may however impose conditions …
'D' Uses:
Council in exercising its discretion as to the approval or refusal of an application for planning approval shall have regard to the suitability of the land use proposed within the precinct and the surrounding area.
… Council may then direct that the proposal be advertised …
Under the Agreed Structure Plan, both a liquor store and a fast food outlet/takeaway are 'D' uses within the Wanneroo Road West Precinct.
Lot 500 immediately adjoining the site to the west, is also zoned Centre in DPS 2. Under the Agreed Structure Plan, Lot 500 is also within the Wanneroo Road West Precinct and has a designation of Residential with a density coding of R40 (R40 lot).
Clause 7.8 of the Agreed Structure Plan sets out planning considerations and states:
In considering any development application, Council will take into consideration the following matters:-
a)The interests of orderly and proper planning and the preservation of the amenity of the relevant locality[.]
b)The objectives and provisions of the Agreed Structure Plan including the design guidelines and policies contained in Part 2 of the Plan.
c)Any other planning policy of Council.
d)Any other matter which[,] under the provisions of the Scheme, the Council is required to have due regard for.
e)The comments or wishes of any public or municipal authority received as part of the submission process.
f)The comments or wishes of any objectives [sic] to or supporters of the application.
g)Any previous decision made by Council in circumstances, which are sufficiently similar for the previous decision to be relevant as a precedent, provided that such precedent shall not bind the Council.
h)a traffic/environmental impact statement may be required where proposed developments are likely to have a significant impact on the surrounding street system or on the amenity of adjacent areas. Such impact statements should include recommendations for the amelioration of impacts and where appropriate these may be included as conditions of any planning approval.

The refusal

The Council resolved to refuse the application for the following reasons:
1.the impact on the amenity of the surrounding residential area;
2.the proposed liquor store and additional take-away food outlet, in combination with the after-hours operation of the existing food businesses in the same centre has the potential to adversely impact on the amenity of the locality by the generation of noise, external and internal traffic impacts, littering and antisocial behaviour and vehicle movement; and
3.when originally approved by Council, the design of the centre was not based on and did not contemplate a liquor store or any additional take-away stores. The design and layout of the current site is therefore considered unable to suitably accommodate the proposed use in addition to the existing uses on site.

Issues

The parties disagreed on how the issue to be addressed should be worded. In essence, both were concerned with the same end. The Tribunal has identified the issue as:
Whether the proposed uses should be approved having regard to relevant matters required to be considered generally under DPS 2 and the Agreed Structure Plan, and particularly the matters required to be considered under cl 6.8 of DPS 2 and cl 7.8 of the Agreed Structure Plan.

Discussion

The site is within the Wanneroo Road West Precinct in the Agreed Structure Plan. The statement of intent for this precinct at cl 6.3(a) of the Agreed Structure Plan includes '… [to provide] a transition between busy Wanneroo Road and established residential development to the west'.
The Agreed Structure Plan at cl 6 states a preference for 'P' uses to achieve this intent. It is also stated that consideration will be given to 'D' uses. Both the proposed uses are 'D' uses. The Agreed Structure Plan at cl 7.4 requires that consideration be given to the suitability of the proposed 'D' uses within the precinct and surrounding area, which reflects the overlapping items to be considered under cl 6.8 of DPS 2 and cl 7.8 of the Agreed Structure Plan related to impact of the uses on the amenity of the locality and surrounding area and the compatibility of the uses with their setting.
In support of its position on the impact of the proposed uses on the surrounding residential uses, the respondent called as a witness Cr Dorothy Newton. Cr Newton was strongly of the view that the proposed uses would exacerbate what she considered to be unacceptable litter, behaviour and traffic problems associated with similar uses on the site and elsewhere in the Wanneroo Town Centre already affecting local residents. She considered this would be particularly so at night because of the after hours peak use of the proposed uses.
Ms Amanda Butterworth, a town planner called as a witness by the respondent, said that, under DPS 2, amenity includes 'likely future amenity'. She expressed an opinion that the proposed uses would contribute to the agglomeration of similar uses on the site, especially of uses with extended trading hours, which had the potential to adversely affect the amenity of the established neighbouring residential area. Ms Butterworth indicated concern that vehicles attracted to and leaving the site would use the residential streets to the west as alternative routes because the central crossover to the site from Wanneroo Road was leftin and leftout only.
Ms Phillida Rodic, a town planner called as a witness by the applicant, said she had seen no evidence of littering or antisocial behaviour on her admittedly limited visits to the site. Ms Rodic also said that, in her opinion, rather than a circuitous route through residential streets, traffic would most likely use the crossover between the site and Hastings Street at the southern boundary of the site and take advantage of the light-controlled intersection of Hastings Street with Wanneroo Road. She said that the traffic from the residential area to the west would likely be those residents who would have been travelling to uses similar to those proposed already existing within the town centre on the eastern side of Wanneroo Road. Ms Rodic considered that it would be unlikely that there would be any impact from the proposed uses on the existing residential area to the west because of the orientation of the building on the site to Wanneroo Road.
The Tribunal has formed the view that the potential impact of the proposed uses on the amenity of the existing residential area to the west, if discernible, would be sufficiently limited, relative to the existing situation, that it would not constitute, of itself, a reason for refusal of the proposed uses. This is because the proposed uses would occupy tenancies previously approved for similar uses with similar operating hours. These include fast food and a bakery. The neighbouring tenancies on the site include uses that also rely on attracting traffic and a steady flow of customers, and the change resulting from the proposed changes in use would, on the face of it, be marginal. There was no evidence from a traffic expert on this point.
The Tribunal favours the applicant's submission that those who are attracted to the site from the residential area to the west would be the same residents who would now be able to choose between the proposed uses on the site and existing like uses in the town centre already frequented, rather than newly generated customers. The Tribunal considers any incremental change in impact on the amenity of the local residential area would be minimal.
It was also the respondent's submission that the proposed uses were unacceptable because of the impact they would have within the Wanneroo Road West Precinct of the Agreed Structure Plan which includes the site and the abutting R40 lot. It was Ms Butterworth's opinion that the proposed uses would alter the mix of uses first approved for the site in 2005 to a predominance of 'D' uses with after hours operation. This, she said, would be inconsistent with the Council's vision for this site, which is zoned Business in the Agreed Structure Plan. Under DPS 2, objectives for the Business zone include providing for showrooms, bulky goods display and consulting rooms with only incidental retail uses. Proposed is a change from showroom to liquor store which, she said, was inconsistent with this objective.
Ms Rodic said it was not unusual for uses to change over time within a zone. The respondent had granted approvals to allow this to occur, such as the change from fast food to hairdresser to bakery. In her opinion, the proportion of 'P' uses had increased on the site. The applicant also submitted that certain 'P' uses at cl 6.3(b) of the Agreed Structure Plan were of a type that typically operated after hours, such as restaurant, theatre, convenience store and laundrette.
The Tribunal agrees that it is consistent with normal planning activity that, over time, uses change from those first approved for a site. Each proposed change of use must, of course, be tested against the planning controls relevant to the site.
Under DPS 2, the site is zoned Centre. At cl 3.12.2(d) of DPS 2, the objectives for the Centre zone include providing for the coordinated and comprehensive planning and development through an agreed structure plan. Under the Agreed Structure Plan, the site has the designation Business, which has associated with it the list of 'P' uses and 'D' uses at cl 6.3(b). These potential uses, together with the stated intent of the Wanneroo Road West Precinct to act as an area of transition from Wanneroo Road, are the expression of the planned 'vision' for the site.
The Tribunal found the lists of approved uses and the approved changes to those uses over time provided by the planning witnesses to be essentially similar. The Tribunal formed the view that if the proposed uses were allowed, the resultant mix of uses on the site would remain consistent with the 'vision' for the precinct as expressed in the planning controls and the original planning approval for the site.
Both parties made strong submissions on the issue of the impact of the proposed uses on the R40 lot adjoining the site within the Wanneroo Road West Precinct. Clause 6.8 of DPS 2 and cl 7.8 of the Agreed Structure Plan both require consideration of the intent of the structure plan. The intent of the Agreed Structure Plan at cl 6.3(a) is that, as already stated, the Wanneroo Road West Precinct 'provides a transition between busy Wanneroo Road and the established residential development to the west'.
It was the submission of the respondent that the proposed uses would compromise the future residential use of the R40 lot abutting the site within the Wanneroo Road West Precinct. Councillor Newton said that the creation of a busy area, especially at night when most residents would be at home, would exacerbate the unacceptable situation she considered already existed.
Ms Butterworth said that the likely future amenity of the R40 lot would be adversely affected because there would be no separation between the proposed uses and the adjoining R40 lot, and the peak trading times of the proposed uses would be in the evening outside normal office and retail hours.
Ms Rodic was of the opinion that it was unlikely the amenity of the R40 lot would be significantly affected by the proposed changes of use. This was because of the scale of the proposed uses and the range of activity already in operation in the vicinity, the orientation of the commercial building on the site to Wanneroo Road, the rear access lane between the R40 lot and the commercial building and the fencing along the boundary between the two lots. The fencing was erected to a standard to achieve compliance with noise attenuation requirements as a condition of the earlier approvals.

Ms Rodic was of the view that the application is appropriate to the site, taking into consideration its location within the Centre zone of DPS 2 and its location abutting Wanneroo Road, a busy regional road. Ms Rodic commented that the promotion of mixed use development within town centre locations is embraced in most relevant contemporary planning documents.
The Tribunal notes that the intent of the Agreed Structure Plan was to provide within the Wanneroo Road West Precinct a transition between Wanneroo Road and the existing residential development to the west. From an examination of the Agreed Structure Plan documents, the Tribunal has formed the view that the R40 lot was included in the Wanneroo Road West Precinct to provide that transition between the commercial uses of the site and the residential use to the west. It does not appear to the Tribunal to be consistent with the intent of the Agreed Structure Plan to then require a further transition between the business uses of the site and the R40 lot within the Wanneroo Road West Precinct itself.
The R40 lot has not been developed. The development of the R40 lot would necessarily incorporate consideration of its role as providing the transition between Wanneroo Road, the commercial uses within the same precinct and the residential properties to the west. It is considered the future impact of the existing and proposed uses on the site on the future development of the R40 lot would be reasonable, given the planning context of the R40 lot being part of a mix of uses within a single precinct providing transition to the residential development to the west. The Tribunal does not consider that the proposed uses being sited adjacent to the R40 lot is, in the circumstances of the planning controls in place, a reason why this development should be refused.
Clause 7.8(g) of the Agreed Structure Plan requires that consideration be given to:
Any previous decision made by Council in circumstances, which are sufficiently similar for the previous decision to be relevant as a precedent, provided that such precedent shall not bind the Council.
The Tribunal has found that there are no apparent material changes to the planning circumstances since the earlier decision of the respondent to grant approval for a liquor store and fast food outlet on the site. That is, the planning framework remains the same, and the only change in neighbouring land use since then would appear to be the completion of the construction of the primary school to the north-west. For this reason, the previous decisions are a significant factor in the consideration of the proposal. The Tribunal is concerned in such circumstances that there be consistent decision-making, and this supports allowing the proposed changes of use.

Conclusion

Of the overlapping matters required to be considered when assessing a development proposal under cl 6.8 of DPS 2 and cl 7.8 of the Agreed Structure Plan, both require regard be had to orderly and proper planning. The Tribunal has formed the view that the proposed uses are consistent with orderly and proper planning. This is because, as set out in the findings above, the Tribunal considers that the proposed uses would be consistent with achieving the Agreed Structure Plan Wanneroo Road West Precinct intent of providing a transition from Wanneroo Road to the established residential area to the west. It has also been found the proposed uses would have an acceptable level of impact on the amenity of the existing residential area to the west and on the potential future R40 lot in the context of mixed uses within a single precinct.
The Tribunal has determined that the application for review can be upheld and the proposed changes of use allowed.

Conditions

As ordered by the Tribunal, the respondent provided a schedule of conditions, without prejudice to its position, that it would want imposed should the Tribunal be minded to allow the development. At the hearing, the parties discussed additional conditions, but the Tribunal was satisfied the conditions discussed relevant to the proposal remained in place from the earlier approvals for the development of the site, particularly those of 1 December 2005, Council Application No DA 05/0608 and 28 September 2007 Application No DA 07/0815 as amended by Tribunal orders of 9 May 2006 reference DR 688 2005. No conditions additional to those in the respondent's schedule are warranted because proposed is simply change of use of existing tenancies without variation to the building footprint, parking layout or pedestrian or vehicle circulation.

Orders

1.The application for review is allowed.
2.The decision of the City of Wanneroo dated 7 May 2009 is set aside and planning approval is granted for the proposed changes of use to takeaway food outlet in tenancy 2 and a liquor store in tenancy 12 and tenancy 13 at No 955 957 Wanneroo Road, Wanneroo subject to the following:
1)This approval only relates to the proposed change of use. It does not relate to any other development on the lot. A change of use from those outlined below will require the approval of the City of Wanneroo.
2)The use of the approved premises shall conform to the City of Wanneroo District Planning Scheme No 2 definitions as detailed below:
Tenancy 2:

Takeaway food outlet; means premises used for the preparation, sale and serving of food to customers in a form ready to be eaten without future preparation primarily off the premises, but excludes drive through food outlet.
Tenancies 12 and 13:
Liquor store; means any land or buildings the subject of a liquor store licence granted under the provisions of the Liquor Licensing Act 1988 (WA).

I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER