GLOSSOP and CITY OF SWAN - [2020] WASAT 27

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
CITATION:   GLOSSOP and CITY OF SWAN [2020] WASAT 27
MEMBER:   MS D QUINLAN, MEMBER
MR J JORDAN, SENIOR SESSIONAL MEMBER

HEARD:   13 AND 14 NOVEMBER 2019
DELIVERED          :   4 MARCH 2020
FILE NO/S:   DR 16 of 2019
BETWEEN:   DAVID GLOSSOP
First Applicant
SAMANTHA JACOBS
Second Applicant
AND
CITY OF SWAN
Respondent

Catchwords:

Town planning - Swan Valley - Restaurant use - Building additions and expansion of permitted restaurant patrons from 40 to 60 - Dispute as to conditions of approval - Conflict in land uses - Locality predominantly used for viticulture - Dust - Spray drift - Sealing of access way

Legislation:

City of Swan Local Planning Scheme No 17, cl 4.2.13, cl 4.3, cl 4.3.2,
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 67(w)
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 9, s 27, s 29, s 31(1), s 31(3)
Swan Valley Planning Act 1995 (WA), s 4, s 6, s 8

Result:

Decision of respondent varied

Summary of Tribunal's decision:

The proceedings in the Tribunal arose following a refusal by the City of Swan (City) for proposed building additions and an increase in the permitted patronage numbers to the restaurant known as Swan Valley Gourmet Farm Café and Providore (the development) located at Lot 401 (No 1056) Great Northern Highway, Baskerville (subject site). Following mediation between the parties, the Tribunal invited the City to reconsider its decision and the City approved the development subject to conditions. The parties were in dispute as to Conditions 4, 5, 6, 10 which, respectively, related to the requirements to keep a gate closed, the sealing of the Haddrill Road driveway with bituminous concrete, carpark setback and number of bays and a spray drift barrier.

The subject site is surrounded by properties which undertake viticulture and is accessed by two lengthy battle axe legs. One of those battle axe legs, Haddrill Road driveway, was the prescribed access under the existing restaurant approval. The other access, the Great Northern Highway (GNH) driveway, is an unsealed access for personal use by the applicants.

The Tribunal found that the development, representing an expanded restaurant use, should address setback, traffic and spray drift screening issues arising from the expanded restaurant use and not shift that burden to neighbours who are continuing their established agricultural (namely, viticulture) use. The Tribunal accepted the evidence of the two neighbours, as experienced and practising vignerons, that dust settling on grapes, especially table grapes, can have an adverse impact on the appearance, standard and marketability of the grapes.
The Tribunal considered whether any of the contested Conditions was for a planning purposes and not for any other ulterior purpose; fairly and reasonably related to the development; and was not so unreasonable that no reasonable planning authority could have imposed it, in the sense of 'legal unreasonableness'. The Tribunal found in the exercise of its discretion that the correct and preferable decision at the time of review was to impose Conditions as amended as follows:

a.  Condition 4: an increase of 50% patronage increased the likelihood of unintended vehicles on the unsealed GNH driveway thereby creating dust. Any measures to address the mistaken use of GNH driveway (by requiring the GNH gate to be closed except for entering and exiting) fairly and reasonably related to the development.
b.     Condition 5: the expert evidence of the City's engineers was accepted in that the Haddrill Road driveway was presently in an unacceptable state for present use as well as for the 50% increased patronage. However, as the Haddrill Road driveway had not been inspected after construction, the Tribunal had no evidence to be satisfied that it had been properly constructed in the first place. A Condition that requires bituminous concrete in order to arguably address a lack of compliance, as well as a lack of enforcement of compliance, with an existing Condition is not for a proper planning purpose. The applicants are to submit to the City before re-sealing the Haddrill Road driveway a plan detailing the proposed works to be undertaken as well as a proposed maintenance regime of the driveway and carpark with such plan to be approved by the City prior to commencement of any driveway works.
c.  Condition 6: the carpark is part of a sensitive land use for the restaurant, however, the use of the carpark is of a transient nature in comparison with the restaurant. The City's suggestion for the carpark to be set back 20 metres from the lot boundary (a further 14 metres from the spray drift barrier) was not supported by the evidence. The Tribunal accepted the distance suggested by the applicants' expert of 11 metres from the lot boundary (5 metres from the spray drift barrier).
d.     Condition 10: the concurrent oral evidence of the spray drift experts jointly concluded (which was accepted by the Tribunal) that the western spray drift barrier be constructed at a height of 3 metres and be set back 6 metres from the boundary. Despite the position of both parties being that a height of 2.6 metres as imposed by the City in the reconsideration approval was appropriate, the Tribunal found, in the exercise of its discretion, that a height of 3 metres was the correct and preferable decision at the time of the review.

Category: B

Representation:

Counsel:

First Applicant	:	T Houweling and B Waugh
Second Applicant	:	T Houweling and B Waugh
Respondent	:	PL Wittkuhn and S Wade

Solicitors:

First Applicant	:	Cornerstone Legal
Second Applicant	:	Cornerstone Legal
Respondent	:	McLeods

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

Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79.
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433.
D'Orazio Enterprises Pty Ltd and City of Stirling [2016] WASAT 99.
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522.
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196.
Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59.

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings arise in the Tribunal following a refusal on 21 November 2018 by the City of Swan (City or respondent) of two applications for planning approval made by Mr David Glossop and Ms Samantha Jacobs (applicants). The planning applications sought approval for proposed building additions and modification of an existing approval to increase the permitted patronage numbers to the restaurant known as Swan Valley Gourmet Farm Café and Providore (restaurant) located at Lot 401 (No 1056) Great Northern Highway, Baskerville (subject site).
On 15 January 2019, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (the PD Act), the applicants lodged an application in the Tribunal for a review of those two refusals by the City.
On 10 July 2019, three neighbours of the applicants were granted leave to intervene in the proceedings concerning general amenity issues relating to matters such as dust and spray drift.
On 16 August 2019, the Tribunal listed the proceedings for a final hearing to commence on 12 November 2019 for a duration of three days.
On 11 October 2019, further mediation between the parties was conducted at the Tribunal, and by consent of the parties, the Tribunal invited the City to reconsider its decisions pursuant to s 31(1) of the State Administrative Tribunal Act2004 (WA) (SAT Act).
At its ordinary council meeting held on 16 October 2019, the City reconsidered the two applications together with the further information provided by the applicants. Council resolved to approve both applications together as one single application (reconsideration approval) subject to 13 conditions (the Conditions). Pursuant to s 31(3) of the SAT Act, the decision of the City on 16 October 2019 is now taken to be the decision the subject of the review proceeding before the Tribunal.
On 25 October 2019, a directions hearing was held where the parties informed the Tribunal that the issues in dispute for review had now significantly narrowed to some of the Conditions imposed by the City on the reconsideration approval. It was determined that the previously scheduled hearing would now only need a duration of two days on 13 and 14 November 2019.
On 31 October 2019, the parties filed a joint statement of their position as to the Conditions. That document identified the Conditions in dispute as Conditions 3, 4, 5, 6, 10. At the commencement of the hearing, the parties advised the Tribunal that the amended wording of Condition 3 was now agreed and the Tribunal has decided to accept the parties' recommended amended wording.
At the commencement of the hearing, in order to assist the Tribunal to achieve its objectives as set out in s 9 of the SAT Act, the interveners sought to withdraw from the proceedings. This decision was reached in light of the reconsideration approval and the position to be taken on the Conditions by the respondent which included relying on evidence from the interveners. The Tribunal made an order removing the interveners from the proceedings.
Section 27 of the SAT provides that the Tribunal is to consider the matter afresh, is not confined to matters before the original decisionmaker, is not limited by the reasons provided by the original decision-maker or the grounds in the application and is to produce the correct and preferable decision at the time of the review. In the exercise of the Tribunal's review jurisdiction, pursuant to s 29(3) of the SAT Act, the Tribunal may affirm, vary or set aside the decision that is being reviewed. If the Tribunal sets aside the decision being reviewed it may substitute its own decision or send the matter back for reconsideration. The Tribunal may also, in any case, make any order the Tribunal considers appropriate.

The subject site and locality

At the commencement of the hearing the Tribunal had the benefit of a site view of the subject site and locality accompanied by the parties and expert witnesses.
The subject site can be described more particularly as follows:
a)The subject site comprises a rectangular lot surrounded by other lots with two battle axe access legs, one to Haddrill Road and one to Great Northern Highway (hereafter referred to as the Haddrill Road driveway and the GNH driveway).
b)The subject site is 2.8034 hectares, with the rectangular portion comprising 2.50497 hectares. The rectangular portion of the subject site has dimensions of 198.21 metres by 130.76 metres.
c)The GNH driveway runs east-west to access the southwestern corner of the rectangular portion of the subject site. That access is 205.93 metres long and 5.03 metres wide and is unsealed.
d)The Haddrill Road driveway runs south to access near the north-eastern corner of the rectangular portion of the subject site. That access is 192.97 metres long and 6 metres wide. The Haddrill Road driveway continues east-west inside the boundary of the subject site to connect with the carpark. This Haddrill Road driveway had been sealed in recent years with recycled asphalt, however the surface has degraded.
e)The subject site is mainly cleared. It includes a dam near its north-eastern corner. Improvements include a house, an existing large shed structure (in which the existing restaurant operates), a parking area between the restaurant and the western boundary, the battle axe access legs/driveways and associated infrastructure.
The predominant land use in the immediate locality of the subject site is viticulture. Grape vines are planted on four out of five of the properties abutting the main rectangular area of the subject site. Three out of those four are full-scale commercial vineyards. The fourth property is engaged in some commercial sale of grapes as well as melons, and is being progressively planted out with additional vines. The occupiers of adjacent viticultural holdings undertake regular spraying of pesticides as part of normal viticultural operations.
Adjacent to the western boundary of the subject site (1066 Great Northern Highway) is the property owned by Mr Roberto and Mrs Susanna Sorgiovanni. The Sorgiovanni property currently produces wine grapes and soon will be producing table grapes. Adjacent to the southern boundary of the subject site (1050 Great Northern Highway) is the property owned by Mr Martin Buck and Ms Lorraine Donlevy who produce wine grapes. Adjacent to the northeastern boundary of the subject site (62 Haddrill Road) is the property owned by Mr Remo and Mrs Denise Zannino who produce table grapes. The Zannino property has table grapes growing alongside some two thirds of the Haddrill Road driveway.

The development and Conditions

The development, as approved subject to the Conditions on the reconsideration approval, can be described as follows:
a)a 312m² expansion to the restaurant area through the use of the upstairs mezzanine area, and the installation of a ground level verandah and first floor balcony;
b)use of a grassed area approximately 1,575m² to the immediate east of the restaurant building for occasional dining;
c)development of a 40m² plant room;
d)increase in patronage number from 40 to 60 persons.
The Conditions in dispute as imposed in the reconsideration approval on 16 October 2019 are as follows:
a)Condition 3:
Access and egress to and from the Restaurant shall be by the Haddrill Road driveway only.
b)Condition 4:
The operator of the Restaurant is to erect a gate and a sign at the entry to the driveway from Great Northern Highway. The operator from time to time of the Restaurant is to ensure that the gate is kept closed except when in process of entering or exiting it. The sign is to be affixed securely to the gate and is to be a minimum of 1 square metre stating '<-----Access to Swan Valley Gourmet is via Haddrill Road' or alternative words to equivalent effect.
c)Condition 5:
Prior to applying for a building permit or by 31 January 2020, whichever comes first, vehicle, parking, access, manoeuvring and circulation areas must be sealed with bituminous concrete, kerbed, drained, line marked in accordance with the City's requirements and maintained at all times to the satisfaction of the City.
d)Condition 6:
Prior to application for a building permit the operator of the restaurant is to submit to the Chief Executive Officer of the City of Swan, a plan for a modified car parking area, to be set back no closer than 20 metres from the western lot boundary and comprising twenty car parking bays, each 2.5m wide and 5.5m long. Such car parking is to be constructed in accordance with Condition 5 of this Approval.
e)Condition 10:
Western spray drift barrier: the landowner is required to install and maintain in place at all time in good condition, a fence set back twenty metres inside the relevant portion of the western boundary of the lot, in accordance with the following requirements: the relevant portion of the western boundary is from a point 3 metres southward of the northernmost point of the boundary, to a distance 39 metres from the northernmost point of the western boundary (total length of fence 34 metres);
(a)the fence is to comprise posts and panels;
(b)the panels are to be horizontal to the ground at all points;
(c)no part of the top of the uppermost panel of any part of the fence is to be lower in height than 2.6 metres vertical separation distance from the ground level at which Lot 1066 Great Northern Highway's closest grape vines to that point are planted;
(d)the panels are to be of 10 to 15 cm widths alternating with 10 to 15 cm wide gaps so as to achieve 50% air flow porosity;
(e)the outer face of the fence is to be coloured olive green or other colour to the satisfaction of the City of Swan.
As noted above, at the commencement of the hearing, the parties advised the Tribunal that amended wording of Condition 3 was now agreed. The parties proposed adding the words 'by customers and suppliers' after the word 'Restaurant' and the Tribunal has accepted this recommendation.

Planning framework

Metropolitan Region Scheme

The subject site is zoned 'Rural' under the Metropolitan Region Scheme.

City of Swan Local Planning Scheme No 17

The subject site is zoned 'Swan Valley Rural' under the City of Swan Local Planning Scheme No 17 (LPS 17).
The Zoning Table contained in cl 4.3 of the LPS 17 provides that in the Swan Valley Rural Zone, the following relevant uses are designated as a 'D' (discretionary) use: Restaurant; Rural Pursuit; Food and Beverage Production. Clause 4.3.2 of LPS 17 provides that a 'D' use means that the use is not permitted unless the local government has exercised its discretion by granting planning approval.
Clause 4.2.13 of LPS 17 provides that the objectives of the Swan Valley Rural Zone are as follows:
a)promote the core area of the Swan Valley primarily as a horticultural, recreational, tourism and landscape resource;
b) provide for limited rural living within the Swan Valley, subject to locational, design and landscaping requirements to enhance the character and amenity of the valley and to ensure compatibility with productive rural activities;
c) recognise the occurrence of high quality horticultural soils and scarce plastic clays and to protect these resources from development which would jeopardise their current and future use;
d)ensure that the development and use of land accords with the planning objectives for Area B as specified in the Swan Valley Planning Act (2005).

Swan Valley Planning Act

The subject site is located within 'Area B' as defined in s 4 of the Swan Valley Planning Act (1995) (WA) (SVP Act).
Section 6 of the SVP Act provides that:
[t]he general planning objectives for the Swan Valley are the encouragement of the traditional agricultural and other productive uses of the area that complement its rural character, the protection of the environment and the character of the area, the reduction of nutrient levels in the Swan River and the promotion of tourism that complements the rural character of the Swan Valley.
Section 8 of the SVP Act provides for specific planning objectives for Area B as follows:
1.The protection of viticulture.
2.The provision of water for viticulture and horticulture and the discouragement of other activities that have high water demands.
3.The encouragement of tourist facilities provided that they do not detract from the rural character of the area.
4.The encouragement of traditional activities of the Swan Valley and industries associated with viticulture, horticulture and cottage industry provided that they are compatible with the rural character of the area.
5.The encouragement of the consolidation of retail and community facilities at Herne Hill, Caversham and West Swan.
5A.The limited expansion of existing retail and community facilities at Herne Hill, Caversham and West Swan where such facilities are required to service the local community and will not detract from the rural character of the area.
6.The compatibility of design, siting and landscaping with the character of the area.
7.The discouragement of uses that are incompatible with the rural character and traditional agricultural activities of the area.
8.The extraction of basic raw materials so far as it is compatible with the character and amenity of the area and subject to the rehabilitation of the affected land.
9.The subdivision into lots of less than 4 hectares only where this is consistent with the objectives set out in this section.
10.The avoidance of overstocking, of activities causing pollution or degradation of the environment and of any other land management practices detrimental to the amenity of the area.

Planning and Development (Local Planning Schemes) Regulations 2015

The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provide in Sch 2 a number of deemed provisions which are deemed to be included in the local planning scheme text (Deemed Provisions).
The subclauses in cl 67 of the Deemed Provisions that are relevant matters for the Tribunal to have due regard to in these proceedings are, in summary, as follows:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(g)any local planning policy for the Scheme area;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
(s)the adequacy of
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(w)the history of the site where the development is to be located;
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y)any submissions received on the application;

EPA Guidance Statement No. 3

The Environmental Protection Authority has published a guidance statement entitled Guidance for the Assessment of Environmental Factors: Separation Distances between Industrial and Sensitive Land Uses (Guidance Statement No 3), 2005 (EPA Guidance Statement No 3).
In the absence of a site specific technical study, the buffer distance specified in Appendix 1 of EPA Guidance Statement No 3, from vineyards (viticulture) and sensitive land uses is 500 metres. Clause 3 of EPA Guidance Statement No 3 provides that the separation distances outlined are not intended to replace the need for proponents and relevant authorities take all reasonable and practicable measures to minimise emissions and off-site impacts.
Clause 7 of EPA Guidance Statement No 3 defines a 'sensitive land use' as follows:
Sensitive land use land use sensitive to emissions from industry and infrastructure. Sensitive land uses include residential development, hospitals, hotels, motels, hostels, caravan parks, schools, nursing homes, child care facilities, shopping centres, playgrounds and some public buildings. Some commercial, institutional and industrial land uses which require high levels of amenity or are sensitive to particular emissions may also be considered 'sensitive land uses'. Examples include some retail outlets, offices and training centres, and some types of storage and manufacturing.
Clause 4.4.2 of EPA Guidance Statement No 3 recommends, when the separation distance is less than as provides in the table, that a new project does not proceed in the absence of site-specific investigations and a report demonstrating that the separation distance will meet acceptability criteria and that enforceable management techniques will be applied to ensure an appropriate environmental outcome.

Health Guidelines

The Department of Health has published guidelines entitled Guidelines for Separation of Agricultural and Residential Land Uses (Health Guidelines).
The Health Guidelines recommend a minimum buffer of 500 metres from vineyards in order to control spray drift, dust, smoke and ash. However, the Health Guidelines do provide that a 40 metres separation distance can be used where a vegetative buffer is adequately designed, implemented and maintained in accordance with the Health Guidelines.
The Health Guidelines further state that a vegetative buffers should be a minimum width of 40 metres made up of 10 metre cleared firebreak either side of a 20 metre wide planted area. The Health Guidelines provide that vegetative buffers should:
1)comprise a permeable barrier which allows air to pass through, a porosity of 0.5 is acceptable.
2)have a mature tree height twice the height of spray release height.
3)include a detailed landscaping plan indicating the extent of the buffer area, the location and spacing of trees and shrubs along with a list of the species.

The authorities and previous Tribunal decisions

In Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59 (Two Rocks and WAPC), the Tribunal set out the proper approach to the decision as to whether to impose a condition on planning approval (whether it be development or subdivision) at [288]-[290]
288The Tribunal reviewed the three Newbury tests in BestryProperty Group Pty Ltd and Western Australian Planning Commission at [90]-[93] as follows:
90As discussed later in these reasons, the applicants contend that the disputed conditions cannot lawfully be imposed, because they are in breach of the so-called 'Newbury tests' for the validity of a condition of planning approval. The 'Newbury tests' derive their name from the decision of the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578. The Newbury tests were endorsed and stated by McHugh J in the High Court of Australia in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 in the following terms at [57]:
… A condition attached to a grant of planning permission will not be valid therefore unless:
1.The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2.The condition reasonably and fairly relates to the development [or subdivision] permitted.
3.The condition is not so unreasonable that no reasonable planning authority could have imposed it.
91In Western Australian Planning Commission v Temwood Holdings Pty Ltd Callinan J also referred, with apparent approval, to the Newbury tests as follows at [155]:
… that a condition must be for a planning purpose and not for any ulterior purpose, must fairly and reasonably relate to the proposed development [or subdivision], and, thirdly must not be so unreasonable that no reasonable planning authority could have imposed it. …
92In Reid v Western Australian Planning Commission [2016] WASCA 181, the Court of Appeal (Martin CJ, Newnes and Murphy JJA agreeing) also endorsed the Newbury tests. After setting out the passage from McHugh J's judgment in Western Australian Planning Commission v Temwood Holdings Pty Ltd at [57] set out at [90] above, the Chief Justice observed and held as follows at [29]:
It is clear from the terminology used by McHugh J and from his reasons read as a whole that he considered the three conditions of validity to which he referred to be quite separate and distinct so, even if the condition is imposed in the furtherance of a proper planning purpose, it will not be valid unless it reasonably and fairly relates to the development proposed. …
93The third Newbury test (that is, whether the condition is not so unreasonable that no reasonable planning authority could have imposed it) is often referred to by the shorthand expression 'manifestly unreasonable' or 'unreasonable in the Wednesbury sense', after the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
289Further to [93] in Bestry Property Group Pty Ltd and Western Australian Planning Commission, where the Tribunal referred to the shorthand expression 'manifestly unreasonable' or 'unreasonable in the Wednesbury sense' (after the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), by which the third Newbury test has often been referred to, in Sanders v City of South Perth [2019] WASC 226 at [227][234] Quinlan CJ referred to recent High Court authority indicating that the judicial review ground of 'legal unreasonableness' 'is not to be confined [in Australia] by reference to … [the] formula' articulated by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation of 'a decision so unreasonable that no reasonable decision[-]maker could have made it' ([227]). Quinlan CJ held in Sanders v City of SouthPerth at [228]-[234] as follows:
228In Minister for Immigration and Citizenship v Li [[2013] HCA 18; (2013) 249 CLR 332], Hayne, Keifel & Bell JJ, observed that the Wednesbury formula could more sensibly be taken to recognise that an inference of legal error may be objectively drawn even where a particular error of reasoning cannot be identified. In this way, as their Honours recognised, the principle accords with that in relation to the review of judicial discretion in House v The King [(1936) 55 CLR 499] and as expressed in the administrative law context by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [(1949) 78 CLR 353].
229As the Court also recognised in Minister for Immigration and Citizenship v Li, however the standard is expressed, in applying the standard of reasonableness the Courts will be cognisant of their constitutional role (citations omitted):
The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.
230While this statement of principle was expressed in the context of the exercise of a discretion, as the review of authorities at [101][104] make clear, it is equally applicable to a criterion in relation to which a decision maker is to be 'satisfied'.
231The contemporary approach to legal unreasonableness was again addressed by the High Court in Minister for Immigration and Border Protection v SZVFW [[2018] HCA 30; (2018) 92 ALJR 713] (SZVFW).
232In that case Gageler J reiterated that the question of legal unreasonableness was 'a question directed to whether or not the decision or action is within the scope of the power conferred on the repository'.
233In this context, Nettle & Gordon JJ in SZVFW identified an important part of the lens for assessing legal unreasonableness, namely (original emphasis):
error identified by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances. In that situation, the court is not undertaking merits review of an exercise of a discretionary power by a decisionmaker. Rather, the court is asking whether the decision-maker's purported exercise of power was beyond power because it was legally unreasonable.
234While this question is a question of law, it will, nevertheless, inevitably involve an evaluation of the particular evidence in each case. As Nettle & Gordon JJ continued in SZVFW (original emphasis):
Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases.
290Sanders v City of South Perth involved an application for judicial review challenging the validity of the grant of development approval for the construction of a house. The case did not concern a challenge to the validity of a condition of subdivision or development approval and did not consider the formulation of the third Newbury test in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30; (2004) 137 LGERA 232 at [57] (McHugh J) and [155] (Callinan J) or as it was endorsed by the Court of Appeal in Reid v Western Australian Planning Commission [2016] WASCA 181. However, given that the High Court authorities referred to by the Chief Justice postdate Western Australian Planning Commission v Temwood Holdings Pty Ltd, it would seem that the third Newbury test involves 'legal unreasonableness' in the sense discussed in the more recent High Court decisions. A condition of subdivision or development approval will therefore be invalid under the third Newbury test, as understood consistently with the judicial review ground of 'legal unreasonableness', if the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power to impose conditions of planning approval, in the particular circumstances, and thus an inference of legal error may objectively be drawn.
How policy guides the exercise of discretion was explained in the decision of the Court of Appeal in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 where it was found at [24] that:
In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a 'policy' and which is stated to be relevant to subdivision applications. In such cases, the document is not a 'policy' given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will by why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach.
Also see Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 at 527 and Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [37].
In Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 at [48] (Canning Mews and City of South Perth), it was found, in addition to the views of expert planners, that residents of the locality had a valuable perspective on amenity:
The qualities and characteristics which constitute and create residential 'amenity' are to be determined objectively. However, in undertaking this objective inquiry, a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity.
Whilst the planning history (including its context) of the subject site must be considered as well as the practical outcome of the proposal, in circumstances where there is an existing approval, the Tribunal is not starting from a 'clean slate': see D'Orazio Enterprises Pty Ltd and City of Stirling [2016] WASAT 99 (Enterprises and City of Stirling) at[66][67], [75] and [78] as follows:
66In our view, this factor ('history of the site') should be considered as 'broad and general' enough to include considerations such as any historical deficiencies or difficulties demonstrated with respect to a site's current use. The 'history' of a site might well extend to any valid planning factor that arises from relevant events of the past in respect of a site and its future use or development.
67Further, the Tribunal's own researches, notified to the parties during the course of the hearing, produced some relevant and helpful observations from the Victorian Civil and Administrative Tribunal concerning what is often effectively the sequential or complementary comparative task involved. Thatis, after considering the 'history' of the site (including its context) it is then permissible to consider the ameliorating effects of what is proposed, and any benefits and, importantly, the practical outcome.
…
75Echoing Mr McQueen's submission referred to earlier, in TanitiPty Ltd v Stonnington City Council [2005] VCAT 1023 the Tribunal has also said, (at [35], emphasis added):
[T]his is not a case where the assessment starts with a clean slate. Rather, a substantial late night entertainment use already exists on the site. It is a use that has existed for many years and it is able to continue even if this application fails.
…
78With respect to Mr Wittkuhn, we reject his net benefit argument. In summary, we do so because, in our view, planning law permits, if not requires, regard to be had to the full history of the site and the existing situation on the site in the context of proposed development without any artificial limitations on that task. In Evans, the Tribunal cautioned against an approach in planning cases 'of allowing the best, or the perfect, to be treated as the enemy of the good': Evans at [123]. The aim is, amongst other things, to look for beneficial, practical, and real planning improvements given a particular state of affairs. The net benefit of a proposal is to be assessed accordingly, and not from a 'cleanslate'.

Issue to be determined

The issue to be determined by the Tribunal in these proceedings is whether it is appropriate in the exercise of the Tribunal's discretion upon review to impose Conditions 4, 5, 6 and 10 (as suggested by either party, or indeed the Tribunal) giving proper consideration as to whether the proposed condition:
a)is for a planning purposes and not for any other ulterior purpose;
b)fairly and reasonably relates to the development; and
c)is not so unreasonable that no reasonable planning authority could have imposed it, in the sense of 'legal unreasonableness' as explained in Two Rocks and WAPC at [290].

The plans

The Tribunal's examination of the various plans of the development as provided by the applicants (and in the reconsideration approval) revealed a number of inconsistencies and contradictions between the various plans as well as with the written and oral evidence of Mr Glossop as to what was the development the applicants sought for the Tribunal to approve. These inconsistencies notably included items such as the location of the machinery building, the presence of a staircase, the location, number and dimensions of the parking area and spaces as well as setbacks to various parts of the development. At the conclusion of the hearing on 14 November 2019, the Tribunal made orders directing the parties to confer and provide to the Tribunal a set of plans showing the development regarding which the applicants seek approval as argued at the final hearing.
On 10 December 2019 the applicants filed a set of plans (the December 2019 plans) which the Tribunal subsequently entered as Exhibit 26. On 12 December 2019 the respondent advised the Tribunal that the December 2019 plans appear to resolve discrepancies identified by the Tribunal and that those plans, subject to one qualification, were suitable for approval. The qualification was expressed as follows by the respondent:
To the extent that any condition imposed by the Council (e.g. condition 10) requires the development to be implemented in a manner different from what the substituted plans propose, the condition would continue to override the plans to the extent of the inconsistency. Thus in the case of condition 10, the current status is that a 20-metre setback fence is to be installed for the western spray drift barrier. If the Tribunal upholds the existing condition, then the condition would continue to override the plans to the extent of the inconsistency. If the applicant[s] [are] successful in persuading the Tribunal to the applicants' wording on the condition, there would be no inconsistency between the plans and the condition. If the Tribunal sees fit to amend condition 10 in a way that doesn't exactly reflect either the applicants' preferred wording or the Council's imposed wording, then the Tribunal's wording of the condition would prevail over the plan to the extent of the inconsistency.

The Tribunal finds that the December 2019 plans still have some inconsistencies as well as a contradictory and duplicated numbering system. The Tribunal concurs with the position of the respondent and would emphasise, therefore, that to identify the approved development and its Conditions of approval, the December 2019 plans, the uncontested Conditions of the reconsideration approval and the Tribunal's final orders from these proceedings must all be read together. If there is any inconsistency the uncontested conditions of the reconsideration approval and the amended Conditions imposed by the Tribunal will prevail over what is shown on the December 2019 plans. The Tribunal considers that amending Condition 1 to this effect is required in order to make clear what has been approved.

Planning history of the subject site

The Tribunal finds that the history of the subject site is relevant to the proceedings. Indeed, we are required by cl 67(w) of the Deemed Provisions to give due regard to the history.
The subject site has existing relevant development approvals as follows:
a)Development approval issued on 8 November 2013 for the erection of a shed (shed approval);
b)Development approval for a change of use in respect of the shed building to 'Restaurant, Rural Pursuit and Food & Beverage Production' issued on 7 July 2015 (restaurant change of use approval); and
c)Approval under delegation on 25 October 2017 for certain modifications to the shed building (restaurant modifications approval).
The restaurant change of use approval was subject to various conditions including:
…
2.Access to the Restaurant, Rural Pursuit and Food and Beverage Production facility shall be via Lot 26 (No 1027) Haddrill Road only as depicted on the approved plans.
3.Access to the Restaurant, Rural Pursuit and Food and Beverage Production facility by the battle-axe driveway of Lot 16 is prohibited unless a further planning application is submitted to, and approved by Council.
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5.Prior to the commencement of the use of the Restaurant, Food and Beverage Production, or the sale of the produce associated with the Rural Pursuit, the owner of Lot 16 shall obtain a Haddrill Road street address.
6.The Restaurant shall provide seating for a maximum of 40 patrons.
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8.The parking areas shall be designed and constructed to accommodate a minimum of 13 parking bays. Car parking bays shall be 2.5m wide, by 5.5m long in accordance with the City's specifications. Accessible parking bays shall be designed in accordance with the Australian Standard AS2890.6 Off-street parking for people with disabilities.
9.Vehicle parking, access, manoeuvring and circulation areas must be sealed, kerbed , drained, line marked in accordance with the City's requirements and maintained at all times to the satisfaction of the City.
In relation to the Haddrill Road driveway, the recommendation of the City's Executive Manager, Planning and Development, which informed the Council's decision on the reconsideration approval was that Condition 9 of the existing restaurant change of use approval (requiring it be sealed) is replicated. The Council imposed the requirement of bituminous concrete in Condition 5 of its reconsideration approval.

The City's submissions

The City submitted, apart from the agreed amendment to Condition 3, that the Tribunal should impose Conditions 4 to 6 and 10 as worded and imposed by the Council by the reconsideration approval.
In closing submissions, the City's position, in summary, was as follows:
a)Condition 4: The applicants' suggestion that there be no requirement for closing the gate (to be erected with a sign at the unsealed GNH driveway access) upon entering or exiting would mean that it could be open for extended periods which is unworkable and unsatisfactory in order to achieve the purpose of ensuring customer and commercial traffic only use the sealed Haddrill Road driveway.
b)Condition 5: The expert engineering evidence supports the City's requirement for a seal of bituminous concrete on the presently degraded Haddrill Road driveway which runs for 200 metres alongside a vineyard. The examples of driveways provided by Mr Glossop do not assist the applicants' case.
c)Condition 6: The City's required setback of 20 metres from the western lot boundary is to mitigate the effect from the reduced spray drift barrier and, due the constraints of the development and the subject site, seek to impose some buffer distance as outlined in EPA Guidance Statement No 3 and the Health Guidelines.
d)Condition 10: The City acknowledged the respondent's planning officers' recommendation in the reconsideration approval process was a compromise by reducing the spray drift barrier height from 3 metres to 2.6 metres which was based on an incorrect assumption made by the spray drift experts of Mr Sorgiovanni's vines being at a height of 1.5 metres (they are actually 2.45 metres). The City submitted in order to mitigate the under height spray drift barrier of 2.6 metres, the 20 metre setback from the western lot boundary (a further 14 metres from the barrier) for the commencement of the carpark was appropriate. The City conceded that there is an evidentiary basis for the Tribunal to consider otherwise.

The applicants' submissions

In the parties joint statement on conditions dated 31 October 2019, the applicants' position, apart from the now agreed wording of Condition 3, was that Conditions 4 to 6 and 10 should be amended as follows:
a)Condition 4: remove the requirement that the gate to be erected for the GNH driveway is to be kept closed except when entering and exiting.
b)Condition 5: remove the requirement that the carpark, the manoeuvring and circulation areas and the Haddrill Road driveway are all to be sealed with bituminous concrete, kerbed, drained and line marked in accordance with the City's requirements. The applicants proposed that Condition 5 require only require maintenance of the existing carpark, the manoeuvring and circulation areas and the Haddrill Road driveway to the satisfaction of the City.
c)Condition 6: remove the requirement for any setback of the carpark, reduce the car bays required to 18 and also that the carpark construction is in accordance with how they suggest Condition 5 should be worded.
d)Condition 10: amend the requirement of the western spray drift barrier to be set back 20 metres from the western boundary to 4-6 metres.
In closing submissions, the applicants' position, in summary, was as follows:
a)The applicants conceded that the restaurant was a sensitive land use, however patrons in the restaurant are largely protected from spray drift by the shed orientation and any exposure in the carpark to the spray drift would only be transient exposure.
b)Despite the expert spray drift evidence, the Tribunal, for planning reasons, should not increase the 2.6 metre height of the western spray drift barrier as imposed by the Council. Conditions should not only be imposed based on the expert scientific application of the guidelines but should also only be done if considered fair and reasonable from a planning perspective. It is not fair and reasonable to impose a further height above the 2.6 metres conceded by the applicants as this does not fairly relate to the increase in patrons.
c)There is no evidence to link the GNH driveway to the development. The GNH driveway is used by the applicants separate from the restaurant use. Therefore, the requirement sought by Condition 4 for the gate to be closed bears no relationship to the development. The erection of the gate and the sign to divert the patrons is, however, accepted.
d)The original approval for 40 patrons did not require a seal by bituminous concrete.
e)Contrary to the position taken by Mr Glossop in his witness statement dated 5 November 2019, the applicants ultimately conceded at the final hearing that the Haddrill Road driveway had not been maintained properly. Further, also in contrast to the applicants' initial position in the joint statement on conditions, the applicants submitted that it would be a fair and reasonable planning requirement that Condition 5 require the Haddrill Road driveway (presumably also the carpark) to be resealed with recycled asphalt. The applicants submitted that dust could be appropriately controlled with new recycled asphalt and maintenance in order to achieve the proper planning purpose.

The evidence

The applicants provided expert spray drift evidence from Mr Jon Harper, a scientist and air quality expert as well as factual evidence from Mr Glossop. The applicants did not provide any expert planning or engineering evidence.
The City provided expert spray drift evidence from Mr Martin Matisons, a toxicologist and former Principal Toxicologist at the Department of Health. The City provided expert planning evidence from Ms Amanda Butterworth, a town planner employed by Allerding & Associates, as well as expert engineering evidence from civil engineers Mr Jim Coten, employed as Executive Manager Operations at the City, and Ms Rachel Sweeney, employed as a Development Engineer at the City. The City also provided factual evidence from neighbours Mr Zannino and Mr Sorgiovanni.

Factual evidence

Mr Glossop provided a witness statement dated 5 November 2019 detailing a comparison analysis he undertook by visiting 105 other developments in the Swan Valley identifying the types of seal constructed on the access driveways. Mr Glossop provided 72 photographs (attached as DBG11 to DBG81) and a schedule of those photographed driveways. Mr Glossop concluded that the Haddrill Road driveway he had installed was consistent with others he had observed in the Swan Valley during his investigations.
Mr Glossop was crossexamined on his investigation of other driveways in the Swan Valley as well as the analysis undertaken by Ms Sweeney of Mr Glossop's examples: see ts 44-56, 13 November 2019. Mr Glossop stated that in recent weeks he had spread vegetable oil on the Haddrill Road driveway, undertaken some hand sweeping and repair of minor pot holes. Mr Glossop stated that he had been advised by the supplier of the recycled asphalt, who was not identified or called to give evidence, to use diesel or something similar. Mr Glossop asked the supplier if vegetable oil was suitable and was told 'yes, absolutely'. Mr Glossop made no enquiries with the City as to whether the application of vegetable oil for maintenance was acceptable.
The Tribunal was provided with three witness statements of Mr Zannino dated 30 August, 5 September and 7 November 2019. Mr Zannino's statements detail his dust and spray drift concerns. Mr Zannino also provided objective evidence supporting his concerns. In his witness statement dated 7 November 2019, Mr Zannino described his observations on 24 October 2019 of Mr Glossop applying to the Haddrill Road driveway with what Mr Zannino believed to be cooking oil. Mr Zannino attended to give oral evidence and clarified the types of trellising used for vines. The applicants did not crossexamine Mr Zannino on his evidence (as relied upon by the City).
Mr Sorgiovanni provided two witness statements dated 5 September and 7 November 2019 detailing his business operations, intention to expand his production as well as his dust and spray drift concerns. Mr Sorgiovanni also informed the Tribunal regarding ongoing mistaken usage of the unsealed GNH driveway. The applicants did not crossexamine Mr Sorgiovanni on his written evidence (as relied upon by the City).

Engineering evidence

In response to the evidence of Mr Glossop as to the photographs attached to his witness statement of his investigations of a number of other driveways for developments in the Swan Valley, Ms Sweeney did her own desktop analysis of the properties identified: see Exhibits 23 and 24. Ms Sweeney gave evidence that in her expertise she can identify the type of seal applied to the driveway from an aerial photograph and Google street view. She agreed in cross examination it would be preferable to visit the 72 sites, but she did not have time to do so: see ts 138-139, 14 November 2019.
Ms Sweeney's analysis disputed the analysis undertaken by Mr Glossop. Ms Sweeney concluded that nearly all of the gravel driveways identified were either not near a vineyard or owned by the same owner. Some of the driveways were sealed asphalt. Of the 72 examples identified by Mr Glossop, Ms Sweeney found that only three were gravel driveways near a vineyard with a different owner.
Ms Sweeney gave oral evidence that when engineers speak of sealing a road surface that asphalt and bituminous concrete are the same type of seal. However, recycled (loose) asphalt is a different product altogether: see ts 119-121, 14 November 2019.
Ms Sweeney and Mr Coten, whilst they have similar qualifications in civil engineering, have different roles at the City. Though Mr Coten has more years of experience as a civil engineer, he is presently in a supervisory role and Ms Sweeney is in a development assessment role with greater familiarity with the City's in-house documents relating to current standards and requirements for access and parking areas. Thus some minor discrepancies occur between their evidence. Mr Coten deferred to Ms Sweeney in this regard.
Ms Sweeney opined in her witness statement at paras 14 to 16 and 19 to 20, in summary, as follows:
a)The Haddrill Road driveway appears to have been constructed from recycled asphalt and not been maintained to a high standard.
b)Recycled asphalt, when properly laid, is considered to be a seal as it does have a degree of compaction and rebonding of the material does occur. However, in Ms Sweeney's opinion, a lack of maintenance has caused the development of dust, loose material and significant potholes.
c)The east-west leg of the Haddrill Road driveway and the carpark have not been adequately compacted to form a sufficiently sealed surface and appears as a loosely compacted recycled asphalt which in appearance resembles a gravel road as opposed to a recycled asphalt seal.
d)Bituminous concrete is a superior product to recycled asphalt as it creates a higher quality sealed surface with fewer maintenance requirements.
e)Curbing along the driveway and carpark areas is unnecessary and would create drainage and erosion issues.
f)With regard to the carpark and the east-west access leg of the Haddrill Road driveway recycled asphalt would be adequate. However, because those areas are not currently compacted adequately to form a sufficiently sealed surface they would need to be compacted so a sealed surface is achieved. Therefore this section does not currently satisfy the requirements of the existing condition or the new condition as imposed by the City in reconsideration approval.
g)The increased traffic on the driveway will increase the generation of loose material and dust which once airborne can travel into the neighbouring vineyard and negatively affect the grapes. Given its proximity to a commercial vineyard and the increase of the patronage to 60 persons, the Haddrill Road driveway should be sealed with bituminous concrete.
Mr Coten opined in his witness statement at paras 10 to 17, in summary, as follows:
a)Bituminous concrete is basically asphalt sourced from an asphalt manufacturing plant and delivered hot to site for laying. Bituminous concrete has a superior quality to recycled asphalt. Recycled asphalt is a product obtained from profiling up an asphalt road surface, delivered cold to a new site, then laid and compacted onto the road base. Alternatively, it is reheated at an asphalt plant with additional material added, including a sealing agent. Because the recycled asphalt basically comprises aggregate bound together by old bitumen, the laying and compacting of that product causes a degree of re-bonding of the materials. That rebonding, if placed cold, occurs when compacted. As such, it doesn't achieve a degree of bonding to the same standard as hot asphalt from an asphalt manufacturing plant (in other words, bituminous concrete). The materials within the recycled asphalt are looser to start with, and they will become loose and by subsequent wear and tear on the surface. This can give rise to dust.
b)A recycled asphalt surface would need to be more regularly repaired and would need to be swept from time to time. Recycled asphalt could be used for a rural driveway if constructed properly.
c)He acknowledged the existing Condition 9 of the change of use approval and that a recycled asphalt driveway is a valid form of seal within the meaning of that condition. The concern is not that the Haddrill Road driveway is made of recycled asphalt, but rather the standard of maintenance. Further the surface that is there was not particularly well laid, even for a recycled asphalt driveway. There are many potholes and more loose material than would be normal for a driveway of that age.
d)Where a driveway is required to cater for traffic involving 60 patrons at any one time, he can see the argument that the volume of traffic is enough to justify bituminous concrete in the interest of the durability of the road surface and the minimisation of dust. When this is combined with the fact that the driveway runs adjacent to an operating commercial vineyard and dust on grapes is a known concern, he supports an upgrade to bituminous concrete.
Mr Coten commented in oral evidence that from the time of his partial inspection approximately a month before and at the site view, it was apparent that some minor sweeping had occurred of the Haddrill Road driveway and an oil like substance had been applied to the surface. Ms Sweeney observed the same. Both experts were present the day before when Mr Glossop gave evidence that he had recently hand swept some portions of the Haddrill Road driveway and applied a considerable amount of cooking oil to the Haddrill Road driveway (as evident from the many large tins of vegetable oil observed at the site view).
Neither Mr Coten nor Ms Sweeney recognised cooking oil as an appropriate form of seal or maintenance process for a recycled asphalt driveway. Ms Sweeney, with Mr Coten agreeing, stated that the application of cooking oil would degrade the recycled asphalt and affect the elastic property by softening the material affecting its ability to hold together. Mr Coten also raised potential environmental concerns: see ts 124-128, 14 November 2019. Both Ms Sweeney and Mr Coten were of the view that a sealing agent manufactured for that purpose should be used.
Prior to preparing his witness statement and the site viewing undertaken before the commencement of the hearing, Mr Coten had only viewed the Haddrill Road driveway access from Haddrill Road and had not inspected the entire length or the carpark. Ms Sweeney had undertaken a full inspection prior to preparing her witness statement and attending the site view: see ts 124-125, 14 November 2019.
Mr Coten in his oral evidence stated he would describe the access from GNH driveway as an unsealed and unconstructed access track. Both agreed that any regular use of that access would generate a lot of dust for neighbouring vineyards: see ts 124, 14 November 2019.
Mr Coten observed from the site view that the carpark may perhaps have originally had some compacted recycled asphalt but it had completely broken down and failed due to the presence of two to three inches of loose material. Ms Sweeney stated she would not classify the carpark as a sealed surface: see ts 129-130, 14 November 2019.
Mr Coten also observed from the site view that portions of the surface of the Haddrill Road driveway, particularly near the bend, had completely broken down and failed due to the presence of loose material, potholes and even patches of grass. Ms Sweeney considered the majority of the surface of the Haddrill Road driveway to be unsealed consisting of loose material. Mr Coten explained that the breaking down of the seal leads to water getting into the base course causing more damage and loosening of the remainder of the seal creating more loose material and generation of dust: see ts 130-131, 14 November 2019.

Neither Ms Sweeney nor Mr Coten agreed with the evidence of Mr Glossop that he had recently repaired the potholes to the standard required as both observed potholes at the site view that they considered problematic: see ts 132, 14 November 2019.
In answer to questions in cross-examination concerning a proper maintenance regime, Ms Sweeney gave evidence that even if the Haddrill Road driveway was properly maintained it would still generate more dust than a driveway with a bituminous concrete seal: see ts 142, 14 November 2019. Mr Coten stated that recycled asphalt was acceptable for a rural driveway but not necessarily a commercial driveway which has greater use with the outcome evident from the site view. Ms Sweeney stated that each development must be assessed on a case by case basis with factors considered such as dust to be generated in proximity to residences and vineyards: see ts 143-144, 14 November 2019. Mr Coten was of the view that recycled asphalt, as evident from the failed surface, was not appropriate for the use to which the Haddrill Road driveway is being put, and would be put with increased patronage, and that bituminous concrete was the appropriate seal. Even if the recycled asphalt was re-laid Mr Coten was of the view it would fail again within 12 months: see ts 147-150 153-154, 14 November 2019.

Spray drift evidence

On 11 September 2019, Mr Harper and Mr Matisons undertook an expert conferral and provided a joint statement where they agreed, except for one matter, on all issues within their expertise.
In the joint statement both experts agreed as to the type and adequacy of vegetative and other screening required between the subject site and its neighbours.
The only issue (identified by them as issue 3.3) where they disagreed was in relation to the timing of the provision of a screening buffer between the subject site and the northern neighbour at Lot 1072 Great Northern Highway. Mr Matisons was of the view that the buffer should be developed upon approval to expand the café, whereas Mr Harper was of the view that the buffer should be developed when it is known that Lot 1072 would be planted with vines or other crops. The City did not impose a condition in relation to the northern boundary and neither party cross-examined or made submissions on this issue.
It transpired at the hearing when the spray drift experts gave oral evidence that both had assumed the vines of the western neighbour at Lot 1066 Great Northern Highway were at a height of 1.5 metres informing their opinion in the joint statement of a spray drift barrier 'rule of thumb' height being double that at 3 metres. Both experts had become aware from the evidence of Mr Sorgiovanni that his vines were actually 2.45 metres in height: see ts 75-78 84-85, 13 November 2019
Both Mr Matisons and Mr Harper acknowledged that the Health Guidelines need to be considered along with matters that are site specific. Mr Matisons opinion was that a distance of 10 metres from the vines to the barrier (in this instance a setback of 6 metres from the boundary) and a spray drift barrier of 4.8 metres was appropriate to adequately screen spray drift from the subject site. Mr Harper agreed with the setback proposed by Mr Matisons, however, he was of the opinion that the height of the spray drift barrier should be 3 to 3.5 metres: see ts 89-90, 13 November 2019. Mr Matisons later agreed that 3 metres from ground level on the subject site was acceptable: see ts 105-106, 13 November 2019.
Neither expert supported the position taken by the City of a 2.6 metre spray drift barrier set back 6 metres from the boundary with a further 14 metres buffer distance before the commencement of the carpark. Mr Matisons' view was that the buffer distance from the spray drift barrier to the commencement of the carpark should be 10 metres whereas Mr Harper said the distance should be 5 metres: see ts 97, 13 November 2019. The Tribunal notes, however, that the carpark distances assumed the height of the spray drift barrier was 2.6 metres as approved by the City. Both experts also agreed that there was no exact science to the determination of these buffer distances: see ts 101-102, 13 November 2019.
Mr Matisons was of the view that a carpark, as part of a public facility, would be considered part of a sensitive land use for the purposes of the Health Guidelines. However, Mr Matisons and Mr Harper agree as to the transient exposure arising from use of a carpark and the protection afforded by the shed to the diners at the café: see ts 102-104, 13 November 2019.

Planning evidence

In her expert witness statement dated 5 November 2019, Ms Butterworth provided a planning opinion regarding proposed Condition 5 (Haddrill Road driveway and carpark), Condition 6 (car parking) and Condition 10 (western spray drift barrier). In relation to each of the Conditions imposed in the reconsideration approval, Ms Butteworth considered whether they were imposed for a proper planning purpose, the condition fairly and reasonably relates to the development and whether the condition was unreasonable.
Ms Butterworth concluded in relation to Condition 5 that the Condition fairly and reasonably relates to the development as it seeks to increase the intensity of the activity at the subject site with the likely result of an increase in the number and frequency of vehicles using the Haddrill Road driveway and carpark. In Ms Butterworth's view, a seal with bituminous concrete of the Haddrill Road driveway would reduce dust impact to the adjoining viticultural properties and therefore reduce potential land use conflicts and increase the compatibility of land uses. Therefore, Ms Butterworth considered that Condition 5 should be modified as follows:
Prior to applying for a building permit or by 31 January 2020, whichever comes first, vehicle, parking, access, manoeuvring and circulation areas must be sealed and the car parking line marked in accordance with the City's requirements and maintained at all times to the satisfaction of the City. The seal in the case of the battle-axe leg from Haddrill Road shall be of bituminous concrete.
Ms Butterworth concluded in relation to Condition 6 that the condition fairly and reasonably relates to the development. Further, that the 20 metre setback for the carpark was reasonable in order to minimise the potential impact to patrons if the adjoining properties undertaking spraying activity whilst the restaurant is open.
Ms Butterworth noted in relation to Condition 10 her understanding was that the applicants contested the setback of 20 metres from the western boundary. Ms Butterworth noted that she understood that spray drift retardation is achieved by either distance or distance and some form of barrier. Ms Butterworth acknowledged that she is not a spray drift expert and that she does not have the technical expertise as to what distances are effective.
Ms Butterworth attended the hearing to listen to the oral evidence of the factual witnesses as well as the spray drift and engineering experts before providing her oral expert planning evidence. The oral evidence of Ms Butterworth can be summarised as follows:
a)Ms Butterworth is guided by the spray drift experts who currently advise between 11 metres (Mr Harper) and 16 metres (Mr Matisons) as to the carpark setback requirements from the lot boundary (5 and 10 metres respectively from the spray drift barrier): see ts 163167, 14 November 2019.
b)Ms Butterworth's recommendation for a 20 metre buffer relied on the 20 metres imposed by the Council in the reconsideration approval as a starting point: see ts 166, 14 November 2019.
c)Consistent with her witness statement, Condition 5 should be modified as follows:
1.to not require any kerbing in the carpark or Haddrill Road driveway;
2.to only require bituminous concrete seal on the Haddrill Road driveway; and
3.the carpark does not require bituminous concrete and she understood a recycled asphalt carpark can be line marked: see ts, 14 November 2019 at pp 163-167.
d)The subject site includes a 'sensitive land use' under EPA Guidance Statement No 3 and, whilst the restaurant is a more sensitive use, the carpark forms part of the sensitive land use: see ts 183-184, 14 November 2019.

Consideration

The Tribunal is of the view that, notwithstanding the conditions imposed on previous approvals, appropriate conditions are required to ensure that the approved expanded use can operate as a neighbour which is compatible with the agricultural uses within Area B and complements the rural character of the Swan Valley as required under s 6 and s 8 of the SVP Act.
The development, representing an expanded restaurant use, is being inserted into the locality. We find it is reasonable and in accordance with ordinary planning principles that the development should address setback, traffic and spray drift screening issues arising from the expanded restaurant use and not shift that burden to neighbours who are continuing their established agricultural (namely, viticulture) use.

Condition 4 gate and signage for GNH driveway

Condition 4 as imposed by the Council in the reconsideration approval required that the sign 'Access to Swan Valley Gourmet is via Haddrill Road' to be affixed to the new gate that is to be erected at the highway frontage of the GNH driveway. The applicants only contest the requirement that the gate, apart from entering and exiting, is to be kept closed. The applicants, quite properly, accept the erection of the new gate at the GNH driveway frontage and the sign to divert patrons to the Haddrill Road driveway.
The applicants' submitted that there is no relationship between the private use of the GNH driveway and the development (additional 20 patrons) and, therefore, there is no need to close the GNH driveway gate. This submission is not accepted by the Tribunal. The Tribunal finds, as a matter of logic, that an increase of 50% patronage increases the likelihood of unintended vehicles on the GNH driveway. Indeed, Mr Sorgiovanni, who was not cross-examined by the applicants, stated that whilst patrons are required to use the Haddrill Road driveway, some still mistakenly use the GNH driveway thereby creating dust and he is concerned an increase in patronage will only worsen this problem. Whilst the GNH driveway is not intended to be used for this purpose, customers and suppliers have used and still could use the unsealed GNH driveway to access the restaurant carpark and also when, momentarily confused, drive part way down and then seek to reverse. We find any measures to address the mistaken use of GNH driveway to fairly and reasonably relate to the development.
Mr Sorgiovanni and Mr Zannino are experienced and practising vignerons. It was their evidence that dust settling on grapes, especially table grapes, can have an adverse impact on the appearance, standard and marketability of the grapes. The applicants did not provide any evidence from any other person experienced in grape growing to contradict this evidence. The Tribunal accepts the expertise of Mr Sorgiovanni and Mr Zannino in this regard and found them both to be credible and reliable witnesses.
We find that any potential restaurant vehicle activity on an unsealed driveway could generate dust adverse to the grapes produced on the Sorgiovanni property or the property to the southern boundary of the subject site (1050 Great Northern Highway) which also produces grapes.
We find it unsatisfactory to accept the applicants' suggestion that the gate be permitted to be open for private use by the applicants during operating hours of the restaurant. We find to allow that to occur would undermine the proper planning purpose of ensuring restaurant traffic only use the sealed Haddrill Road driveway.
The Tribunal further finds that if the gate was open then the sign would not be easily visible to motorists in order to deter restaurant traffic from using the unsealed GNH driveway.
We also find that it is appropriate to amend the wording of the sign to include 'only' as follows: '<-------- Access to Swan Valley Gourmet is via Haddrill Road only'.
Therefore, it follows that we find Condition 4 should require the gate for the GNH driveway to be closed at all times apart from when vehicles are entering and exiting and that this requirement is for a proper planning purpose, fairly and reasonably relates to the development due to the increased patronage and is not so unreasonable that no reasonable planning authority could have imposed it, in the sense of 'legal unreasonableness'.

Condition 5 –Haddrill Road driveway and carpark

Condition 9 imposed on the earlier restaurant change of use approval required the carpark and the Haddrill Road driveway to be sealed, kerbed, drained and line marked to the City's requirements and maintained to the City's satisfaction. The applicants did not challenge that condition. The surface material used was recycled asphalt. The applicants now object to the requirement in Condition 5 of the reconsideration approval that the surface be sealed using bituminous concrete, but somewhat belatedly during the course of the hearing, now concede that the level of maintenance has been inadequate.
The evidence revealed, and the site view confirmed, that even if the original sealing of the Haddrill Road driveway and carpark with recycled asphalt in 2015 had been to the satisfaction of the City, the maintenance of the surface since then has not been at a level sufficient to maintain the sealed surface over the full length of the driveway or of the carpark.
There was no evidence that the City, prior to this hearing, had made any inspection of the finished Haddrill Road driveway required by the restaurant change of use approval or any maintenance carried out since it was sealed. The Tribunal must consider whether a condition for a relaid recycled asphalt driveway that is maintained is sufficient for the development that is the subject of these proceedings. Implied in such a planning condition is that the recycled asphalt is laid properly and maintained appropriately. Compliance with such a condition of approval is the legal obligation of the applicants and their successors. Enforcing compliance with such a condition of approval is the responsibility of the City. In our view, we must not impose a condition due to any alleged failure to comply by the applicants or alleged failure of enforcing compliance by the City in the past, or future.
The applicants did not provide any expert engineering evidence to either agree, or disagree with the expert evidence of Mr Coten and Ms Sweeney. The Tribunal assessed both witnesses in their oral and written evidence, including cross-examination, and we found the evidence of Mr Coten and Ms Sweeney to be coherent and logical in approach. We found no logical reason to disagree with their opinions. To the extent that Ms Sweeney in any way differs from Mr Coten, we decide that we prefer Ms Sweeney's opinion due to her current role having a better understanding of the current technical engineering requirements of the City.
Mr Coten and Ms Sweeney were both clear in their evidence under cross-examination that recycled asphalt, even if properly maintained, produces more dust than bituminous concrete and the increased patronage will cause the recycled asphalt to eventually fail. The applicants accepted that maintenance had not been done properly, however submitted that they should be given the opportunity to re-seal the surface and maintain it properly. The applicants also acknowledged the availability of sealing agents manufactured to assist in that purpose. Further, the applicants submitted, that any future failure of a recycled asphalt surface (thereby requiring resealing) was a matter for the applicants.
The Tribunal finds that there is potential for dust to be raised by vehicles using the Haddrill Road driveway if the recycled asphalt sealed surface has broken down and there has been inadequate maintenance. The Tribunal finds that the potential for the more regular occurrence of dust, due to the 50% increase in patronage, to be detrimental to the viticulture of growing grapes. Therefore, we find without the requirement for a properly sealed surface, the increase in patronage from the development would be contrary to the specific planning objectives for Area B in s 8 of the SVP Act that viticulture is to be protected. Appropriate sealing of the Haddrill Road driveway ensures the compatibility of the adjoining uses.
Whilst the Tribunal accepts the opinion evidence of Mr Coten and Ms Sweeney that the Haddrill Road driveway is presently in an unacceptable state for its current use as well as for the 50% increased patronage, we have no evidence to be satisfied that the Haddrill Road driveway was ever properly constructed in the first place. In fact, both expert witnesses appeared to, directly and indirectly, both suggest they suspected the Haddrill Road driveway had originally not been properly constructed as well as being poorly maintained.
The Tribunal agrees with, and follows, the reasoning in Enterprises and City of Stirling that we are not starting with a 'clean slate' at the subject site, the approved use with patronage numbers at any one time of 40 will continue even if this further development approval is never implemented. However, we also follow the reasoning in Enterprises and City of Stirling at [78] that:
78… The aim is, amongst other things, to look for beneficial, practical, and real planning improvements given a particular state of affairs. The net benefit of a proposal is to be assessed accordingly, and not from a 'clean slate'.
Ultimately we find that the reasons for the City requiring a bituminous concrete seal appear to be an attempt to mitigate the possible failure of the applicants to properly construct the Haddrill Road driveway and their actual failure to properly maintain what was constructed as well as a possible failure on the City's part to properly monitor compliance with Condition 9 of the restaurant change of use approval as to construction and maintenance. Therefore, we find that a Condition that requires bituminous concrete in order to arguably address a lack of compliance, as well as a lack of enforcement of compliance, with an existing Condition is not for a proper planning purpose.
In applying the three stage test identified above in order to properly impose a condition on approval, the Tribunal takes into account the history of the subject site, the lack of evidence as to the adequacy of the seal initially constructed, the un-contradicted expert evidence of the engineers including the failure of the current surface and its maintenance regime, as well as the 50% increase in patronage at any one time which will no doubt produce more dust adverse to the neighbours' grapes.
Accordingly, the Tribunal finds that the vehicle parking, access manoeuvring and circulation areas (which includes Haddrill Road driveway as well as its east-west connection and the carpark) should be re-constructed and re-sealed as required by Condition 5 of the reconsideration approval and Condition 9 of the restaurant change of use approval. However, we do not find that the re-seal must be done by way of bituminous concrete as required by Condition 5 of the reconsideration approval.
Therefore, it follows that we find that the requirement for the Haddrill Road driveway to be re-constructed and re-sealed is for a proper planning purpose, fairly and reasonably relates to the development and is not so unreasonable that no reasonable planning authority could have imposed it, in the sense of 'legal unreasonableness'. We also consider it appropriate that the applicants submit to the City before re-sealing the Haddrill Road driveway a document entitled 'Plan to Re-construct and Re-seal Haddrill Road driveway and Carpark and Maintenance Regime' detailing the proposed works to be undertaken as well as a proposed maintenance regime of the driveway and carpark with such plan to be approved by the City prior to commencement of any driveway works.

We note the concession made by Ms Butterworth, as well as both engineers regarding kerbing. We will also amend the date to 31 May 2020.

Condition 6 – car parking area setback and number of bays required

In consideration of EPA Guidance Statement No 3, the Health Guidelines, the expert planning evidence of Ms Butterworth as well as the concession made by the applicants in closing submissions, we find that the carpark is part of a sensitive land use for the restaurant. However, we also find that the use of the carpark is of a transient nature in comparison with the restaurant.
We find that the City's suggestion for the carpark to be set back 20 metres from the lot boundary (a further 14 metres from the spray drift barrier) is not supported by the evidence. By the conclusion of their oral evidence, the only remaining matter in contention between the spray drift experts was the distance from the spray drift barrier to the commencement of the carpark. Mr Matisons said it should be 10 metres from the spray drift barrier and Mr Harper said 5 metres. Both agreed, once the 10 metre distance from the vines to the spray drift barrier was achieved, there was no exact science in this additional buffer distance.
The Tribunal finds a setback from the spray drift barrier is required due to the increase in patronage numbers and accept the distance suggested by Mr Harper of 11 metres from the lot boundary (5 metres from the spray drift barrier). We find that such a setback distance, based on our findings in relation to all of the evidence, is for a proper planning purpose, fairly and reasonably relates to the development and is not so unreasonable that no reasonable planning authority could have imposed it, in the sense of 'legal unreasonableness'.
The City's reconsideration approval required that 20 car bays be provided for the development. The applicants' position in the parties' joint statement on Conditions dated 31 October 2019 proposed 18 car bays be provided. In closing submissions the applicants sought for the Tribunal to acknowledge that the applicants propose to provide more than the minimum 15 car bays required.
The witness statement of Ms Butterworth dated 6 September 2019 attached the City's Local Planning Policy: POL-TP-129 Vehicle Parking Standards which requires that a restaurant is to have one car bay for every four patrons. This would equate to 15 bays for the development with 60 patrons. In the City's reconsideration approval the report prepared by the City's planning officer noted the requirement of 15 car bays, however that the applicants' revised plans showed 20 bays (as do the finalised plans provided to this Tribunal on 17 December 2019).
The applicants did not provide any evidence or submissions to support, or explain, their inconsistent position. We find that the applicants should provide the 20 car bays as they have consistently proposed to provide in their revised plans as part of the reconsideration approval and their finalised plans provided to the Tribunal on 17 December 2019.

Condition 10 – spray drift barrier height and setback from boundary

The only issue where the spray drift experts disagreed in their joint statement (identified by them as issue 3.3) was in relation to when a buffer should be provided for the northern neighbour at Lot 1072 Great Northern Highway. Mr Matisons was of the view that the buffer should be developed upon approval to expand the café, whereas Mr Harper was of the view that a buffer should be developed when it is known that Lot 1072 would be planted with vines or other crops. The City did not impose a condition in relation to the northern boundary or the timing of the development of the screening buffer between the subject site and the northern neighbour at Lot 1072 Great Northern Highway. Neither party cross-examined the experts or made submissions on this issue. The Tribunal finds it is not appropriate in these circumstances to impose any condition in relation to the northern boundary.
Both parties submitted in closing that the height of the spray drift barrier should remain at the height imposed by the Council in the reconsideration approval of 2.6 metres. The Tribunal finds that there is no sound or reasonable basis in the expert evidence for the position maintained by the City in closing submissions as to the height of the spray drift barrier or the 20 metre setback from the subject site lot boundary. Moreover, also contrary to the applicants' submission in this regard, we find that the expert evidence of the 3 metre height of the spray drift barrier not only is logically sound, it also fairly and reasonably relates to the development and the increase in patronage numbers.
The oral evidence of the joint evidence of Mr Matisons and Mr Harper concluded with both agreeing a 6 metre setback from the boundary and 3 metre high spray drift barrier. The Tribunal accepts this evidence. Despite the position of both parties being a height of 2.6 metre is appropriate, the Tribunal finds, in the exercise of its discretion, that amending the condition to require a height of 3 metres is the correct and preferable decision at the time of the review.

Conclusion

The Tribunal has given consideration as to whether any of the contested Conditions:
a)is for a planning purposes and not for any other ulterior purpose;
b)fairly and reasonably relates to the development; and
c)is not so unreasonable that no reasonable planning authority could have imposed it, in the sense of 'legal unreasonableness' as explained in Two Rocks and WAPC at [290].
In accordance with these reasons, the Tribunal concludes in the exercise of its discretion that the correct and preferable decision at the time of review is to impose the contested Conditions as amended by the Tribunal in the orders below.

Orders

The Tribunal determines that the appropriate orders to be made under s 29(3) of the State Administrative Tribunal Act 2004 (WA) are as follows:
1)Upon review, the decision of the respondent on 16 October 2019 to approve the application subject to conditions is varied in accordance with order 2 below.
2)The following conditions imposed by the respondent on 16 October 2019 are deleted and replaced with amended conditions as follows:
a)Condition 1:

This approval is for additions to the 'restaurant' as defined in the City of Swan Local Planning Scheme No 17 as illustrated on the plans filed by the applicants with the Tribunal on 10 December 2019 and referred to by the respondent in its letter to the Tribunal dated 12 December 2019. Where a condition of approval, either in the uncontested conditions imposed by the City of Swan in its reconsideration approval on 16 October 2019 or as amended by the Tribunal in this decision, requires a feature or structure to be established, installed, varied or maintained which is not depicted on or is different from an approved plan, the requirement of the condition prevails and the plans shall be read as if amended to include that requirement.
b)Condition 3:

Access and egress to and from the Restaurant by customers and suppliers shall be by the Haddrill Road driveway only.
c)Condition 4:

The operator of the Restaurant is to erect a gate and a sign at the entry to the driveway from Great Northern Highway. The operator from time to time of the Restaurant is to ensure that the gate is kept closed except when in the process of entering or exiting it. The sign is to be affixed securely to the gate and is to be a minimum of 1 square metre stating '<------Access to Swan Valley Gourmet is via Haddrill Road only' or alternative words to equivalent effect.
d)Condition 5:

Prior to applying for a building permit or by 31 May 2020, whichever comes first, vehicle parking, access, manoeuvring and circulation areas must be reconstructed and re-sealed (which includes adequate drainage) as well as the car parking line marked in accordance with the City of Swan's requirements and maintained at all times to the satisfaction of the City of Swan. Before undertaking any work to re-construct and re-seal the access way and carpark the operator of the restaurant is to submit to the Chief Executive Officer of the City of Swan, a document entitled 'Plan to Re-construct and Re-seal Haddrill Road driveway and Carpark and Maintenance Regime' detailing the proposed works to be undertaken as well as a proposed maintenance regime of the driveway and carpark with such plan to be approved by the City of Swan prior to commencement of any driveway works.
e)Condition 6:

Prior to application for a building permit the operator of the restaurant is to submit to the Chief Executive Officer of the City of Swan, a plan for a modified car parking area as outlined in Condition 5, to be set back no closer than 11 metres from the western lot boundary (that being 5 metres from the western spray drift barrier) and comprising twenty car parking bays, each 2.5 metres wide and 5.5 metres long. Such car parking is to be constructed in accordance with Condition 5 of this Approval.
f)Condition 10:

Western spray drift barrier: the landowner is required to install and maintain in place at all times in good condition, a fence set back 6 metres inside the relevant portion of the western boundary of the lot, in accordance with the following requirements: the relevant portion of the western boundary is from a point 3 metres southward of the northernmost point of the boundary, to a distance 39 metres from the northernmost point of the western boundary (total length of fence 34 metres):
1.the fence is to comprise posts and panels;
2.the panels are to be horizontal to the ground at all points;
3.no part of the top of the uppermost panel of any part of the fence is to be lower in height than 3 metres vertical separation distance from the ground level at which the fence is located;
4.the panels are to be of 10 to 15 centimetres widths alternating with 10 to 15 centimetres wide gaps so as to achieve 50% air flow porosity; and
5.the outer face of the fence is to be coloured olive green or other colour to the satisfaction of the City of Swan.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
4 MARCH 2020