GOLDRANGE PTY LTD and CITY OF WANNEROO - [2017] WASAT 106

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: GOLDRANGE PTY LTD and CITY OF WANNEROO [2017] WASAT 106

MEMBER: MR M SPILLANE (SENIOR MEMBER)
MS D QUINLAN (MEMBER)

HEARD: 4 MAY 2017

DELIVERED : 11 AUGUST 2017

FILE NO/S: DR 46 of 2017

BETWEEN: GOLDRANGE PTY LTD
Applicant
AND
CITY OF WANNEROO
Respondent

Catchwords:

Town planning - Structure plan - Scheme amendment - Deemed provisions - Orderly and proper planning - Weight to be afforded

Legislation:

Planning and Development Act 2005 (WA), s 14, s 15, s 87(1), s 87(2)(b), s 252(1), s 257B(3), Div 2, Pt 2
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 53, reg 55, Sch 2, cl 25, cl 27, cl 67, cl 76(2)
City of Wanneroo District Planning Scheme No 2, cl 3.14, cl 3.14.3, cl 9.8.3

Result:

Review dismissed and refusal to approve proposed development affirmed

Summary of Tribunal's decision:

The applicant applied for development approval at 'Drovers Place', Lot 810 (No 1397) Wanneroo Road, Wanneroo (subject site) for a change of use class from a 'Fish Shop' to a 'Global International Shop' (proposed development). The respondent refused the application and the applicant sought a review of that decision in the Tribunal.
The capability for approval of the proposed development was positively affected by the introduction of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions).
Clause 27 of the Deemed Provisions provides that the decisionmaker must now have due regard to an approved structure plan, and is not bound by the structure plan. The relevant structure plan is the Drovers Place Precinct Structure Plan No 80 (ASP 80). The proposed development was thus capable of approval under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme).
The issue in the proceedings was whether it was consistent with orderly and proper planning that the proposed development should be approved. The Tribunal had to have due regard and give appropriate weight to the fact that ASP 80 was in the process of amendment (Amendment 4) and more importantly, that a scheme amendment process was underway (Amendment 150) which would, if finally approved by the Minister which the Tribunal found to be highly likely, render the proposed development an 'X' (prohibited) use at the subject site.
The Tribunal found that approval of the proposed development would run counter to the 'Coty principle' as it would render more difficult, if not render it nugatory, the ultimate decision as to the form the Scheme, or more particularly Amendment 150, should take.
From the starting point of the primacy of the Scheme where the proposed development is capable of approval, in the exercise of that discretion the Tribunal found as follows:
a)      Having due regard but finding that little weight should be given to Amendment 4 to ASP 80 as proposed by the applicant and the respondent which designated a 'Shop' as an additional discretionary use on        the subject site;
b)     Having due regard but finding that little weight should be given to the form of Amendment 150 as originally decided by the respondent which permitted a 'Shop' use on the subject site;
c)      Finding that in the unusual circumstances of the present case the evidence of the town planning witnesses was of only marginal value and of little weight in light of the Tribunal's findings in relation to the statutory planning instruments;
d)     Having due regard to ASP 80 in its present form and its historical context which pointed to Shop being an 'X' use on the subject site;
e)      That some weight be given to Amendment 4 to ASP 80 in the form determined by the Western Australian Planning Commission (WAPC) on 6 April 2016 but acknowledging that the decision is under review in the Tribunal, though adjourned, pending the outcome of the judicial review proceedings in the Supreme Court; and
f)      Having due regard to, and giving considerable weight in particular, to Amendment 150 in the form required by the Minister for Planning and duly complied with by the respondent on 2 November 2016.
In those circumstances and noting that the WAPC being the peak planning body in the state, in its letter of 8 April 2015, had clearly set out its reasons for the changes required to Amendment 150 of the Scheme, and the Minister by the advice of 16 September 2016 had pursuant to s 87(2)(b) of the Planning and Development Act 2005 (WA) required the respondent to modify the proposed amendments to the Scheme by deleting the use class 'Shop' that in the interest of orderly and proper planning and the principles set out in the Coty principle, the balance weighs heavily against approval of the proposed development at this time.
The decision of the respondent to refuse the application was therefore affirmed and the application for review dismissed.

Category: B

Representation:

Counsel:

Applicant: Paul Mcqueen
Respondent: Craig Slarke

Solicitors:

Applicant: Lavan Legal
Respondent: McLeods Barristers and Solicitors

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

Carcione Nominees Pty Ltd & Anor v Western Australian Planning Commission& Ors [2005] WASCA 56
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Goldrange Pty Ltd and Greenpark Asset Pty Ltd and Western Australian Planning Commission [2013] WASAT 66
Goldrange Pty Ltd and Western Australian Planning Commission [2010] WASAT 52
Goldrange Pty Ltd and Western Australian Planning Commission [2016] WASAT 116
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
McDonald's Australia Limited and Presiding Member of the Metropolitan Joint Development Assessment Panel [2015] WASAT 146
Scutti v City of Wanneroo [2017] WASC 70
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289, (2003) 129 LGERA 195

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 8 December 2016 Goldrange Pty Ltd (applicant) applied for development approval at 'Drovers Place', Lot 810 (No 1397) Wanneroo Road, Wanneroo (subject site) for a change of use from a 'Fish Shop' to a 'Global International Shop' (proposed development).
On 30 January 2017 the City of Wanneroo (respondent or City) refused to approve the proposed development for the following reasons:
In determining this application, the City has had due regard to the matters listed in Clause 67 of the DPS 2 Deemed Provisions, and has made its decision to refuse the application for the reasons outlined below:
1.The land use proposed to be carried out in the tenancy hatched on the attached site plan is considered by the City to fall under the use class of 'Shop'. The use class of 'Shop' is defined in DPS 2 as follows:
shop: means premises where goods are kept exposed or offered for sale by retail. This interpretation excludes restricted premises, but may include a bakery.
The subject lot is affected by the City's Drovers Place Precinct Agreed Structure Plan No. 80 (ASP 80). Under the provisions of ASP 80, the 'Shop' land use is not permitted (or an 'X' use) on the subject lot.
2.Approving the land use of 'Shop' as proposed through this development application would be inconsistent with proposed Amendment No. 150 to DPS 2; as recently modified by the City in accordance with a decision made by the Minister for Planning.
On 8 February 2017 the applicant sought a review of that decision by the Tribunal pursuant to cl 76(2) of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) and s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
Schedule 2 of the LPS Regulations sets out a number of provisions which are deemed to be included in local planning scheme texts (Deemed Provisions). Pursuant to the operation of s 257B(3) of the PD Act, if a Deemed Provision is inconsistent with a provision of a local planning scheme, 'the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.'
It is important to note at the outset of these reasons that the capability for approval of the proposed development has been positively affected by the introduction of the Deemed Provisions in October 2015, in particular cl 27 which provides that a decisionmaker is to have due regard to an approved structure plan.
Prior to the introduction of the Deemed Provisions, a number of local planning schemes incorporated approved structure plans into their schemes by which decisionmakers were bound by the provisions of the structure plan. Since the introduction of the Deemed Provisions the decisionmaker must now have due regard to an approved structure plan, and is not bound by the provisions of the plans which were previously incorporated into a local planning scheme.

Planning framework

The Scheme

The subject site is zoned 'Urban Development' under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme). Clause 3.14 sets out the purpose and objectives for the Urban Development zone as follows:
3.14.1The purpose of the Urban Development Zone is to provide for the orderly planning and development of larger areas of land in an integrated manner within a regional context whilst retaining flexibility to review planning with changing circumstances. In considering applications for development and changes to residential density codings in areas near existing and proposed future railway stations the Council will have due regard to the desirability of higher residential densities, transit related development and good pedestrian and vehicular access to stations in order to promote public transport usage.
3.14.2The objectives of the Urban Development Zone are to:
(a)designate land for future urban development;
(b)provide for the orderly planning of large areas of land for residential and associated purposes through a comprehensive structure planning process; [and]
(c)enable planning to be flexible and responsive to changing circumstances throughout the developmental stages of the area.
3.14.3Subject to Clause 27 of the deemed provisions, no subdivision (including strata or survey strata subdivision) or other development should be commenced or carried out in an Urban Development Zone until a Structure Plan has been prepared and adopted under the provisions of Part 4 of the deemed provisions. No subdivision (including strata or survey strata subdivision) should be commenced or carried out and no other development shall be commenced or carried out otherwise than in conformity with a Structure Plan which is in existence at the time the application for approval of the subdivision or other development is received by the responsible authority[.]
3.14.4The permissibility of uses in the Urban Development Zone subject to Clause 27 of the deemed provisions shall be determined in accordance with the provisions of the relevant Structure Plan.

The Deemed Provisions

Clause 27(1) of the Deemed Provisions provides that:
A decision-maker for an application for development approval or subdivision approval in an area that is covered by a structure plan that has been approved by the Commission is to have due regard to, but is not bound by, the structure plan when deciding the application.
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:
a) aims and provisions of the DPS 2;
b)requirements of orderly and proper planning;
h)any structure plan;
w)the history of the site where the development is to be located; and
zb)any other planning consideration considered appropriate.
Of particular note is cl 67(b) which provides:
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 Scheme) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving[.]
Pursuant to Div 2 of Pt 2 of the PD Act the Western Australian Planning Commission (WAPC) is the peak planning body in the State established to perform particular functions (s 14) and invested with particular powers (s 15) and to advise the Minister for Planning and effectively oversee, manage and control land use planning throughout Western Australia.

Amendment 150 to the Scheme

On 8 April 2015 the WAPC wrote to the respondent as follows:
I refer to the Drovers Place Precinct Structure Plan No 80 (ASP 80), which, as you are aware, is currently the subject of a number of proposed amendments.
Drovers Place is not identified in the hierarchy of activity centres in State Planning Policy 4.2 - Activity Centres for Perth and Peel (SPP 4.2), and as such, is considered an 'outofcentre' development. The expansion of land uses in this location, specifically retail, could undermine the integrity and effective implementation of SPP 4.2 and establish an undesirable precedent for 'out-of-centre' developments.
Additionally, the incremental expansion of permissible land uses through numerous amendments to the structure plan will result in a complex planning framework, contrary to the Government's broader planning reform agenda to develop streamlined and consistent decision making frameworks.
In order to obviate the need for frequent amendments to the structure plan and ensure consistency with SPP 4.2, the Western Australian Planning Commission (WAPC) formally request that the Wanneroo City Council consider the initiation of an amendment to District Planning Scheme No. 2 which would normalise the zoning of the structure plan area under the local planning scheme. In particular, that consideration be given to rezoning the Central Precinct to a Business zone under the scheme.
This is consistent with the approach taken by the WAPC in determining Amendment 3 to the structure plan.
Accordingly, it would be appreciated if you could progress this request through your request through your Council[.]
The Tribunal understands from that letter that the reference to a request for 'that consideration be given to rezoning the Central Precinct to a Business zone under the Scheme' is more correctly described as a request for a rezoning of the area of the Central Precinct delineated under ASP 80 from 'Urban Development' to the 'Business' zone under the Scheme. The Tribunal also understands that the reference to 'Amendment 3' to ASP 80 in the letter is a typographical error and should be a reference to 'Amendment 4' to ASP 80 (as discussed further below).
Following that request, Council of the respondent, on 26 April 2016, after consideration of the planning officer's report and submissions received following advertising, resolved to amend the Scheme (Amendment 150) and to provide that Amendment to the WAPC.
However, Amendment 150 as proposed by Council of the respondent proposed rezoning the subject site (and Lot 811) from Urban Development to Business as requested by the WAPC but in addition the respondent proposed that the use class 'Shop' be capable of approval subject to certain conditions which limited the net lettable area.
Pursuant to reg 53 of the LPS Regulations the respondent submitted Amendment 150 to the WAPC for consideration and approval by the Minister for Planning under reg 55 of the LPS Regulations and s 87(1) of the PD Act.
On 16 September 2016 the WAPC advised the respondent of the decision of the Minister for Planning concerning Amendment 150 as follows:
Pursuant to clause 87(2) of the Planning and Development Act 2005 (the Act), the Minister for Planning requires the City of Wanneroo to modify the amendment documents in accordance with the attached Schedule of Modifications before final approval is given.
In accordance with clause 62(2) of the Planning and Development (Local Planning Schemes) Regulations 2015, the amendment documents are required to be modified in accordance with the Minister's decision, and returned to the Western Australian Planning Commission within 42 days of this letter being received.
(Tribunal emphasis)
In the present case the modifications required by the Minister for Planning, relevant to these proceedings, specifically included deleting the additional use class 'Shop' as proposed for the subject site (and Lot 811).
It is noted that s 87(2) of the PD Act referred to above states:
(2)The Minister may, in relation to a local planning scheme or amendment submitted to the Minister under subsection (1)
(a)approve of that local planning scheme or amendment; or
(b)require the local government concerned to modify that local planning scheme or amendment in such manner as the Minister specifies before the local planning scheme or amendment is resubmitted for the Minister's approval under this subsection; or
(c)refuse to approve of that local planning scheme or amendment.
And s 87(3) states:
(3)When the Minister notifies the Commission that the Minister has approved a local planning scheme or an amendment to a local planning scheme, the Commission is to cause the scheme or amendment to be published in the Gazette.
On 2 November 2016 the respondent returned Amendment 150 to the WAPC as required by the Minister for Planning with the requested amendments.
The Tribunal understands that the applicant has sought prerogative relief with respect to Amendment 150 in the Supreme Court in regard to the decisions of the WAPC (CIV 2133 of 2016) and the Minister for Planning (CIV 2635 of 2016) and at the time of this determination those proceedings have not yet been determined. However, the Tribunal understands that no further action has been taken by the WAPC or the Minister for Planning in relation to Amendment 150 due to an undertaking provided to the Supreme Court by the previous Minister for Planning.

Drovers Place Precinct Structure Plan No 80 (ASP 80)

Drovers Place Precinct Structure Plan No 80 (ASP 80) is the presently approved structure plan and includes the subject site. An earlier approved structure plan for the Drovers Place Precinct was ASP 47.
ASP 80 designates that the subject site falls within the 'Central Precinct'. The general objectives found in clause 7.0(b) of ASP 80 provide that the objectives '[f]or land within the Central Precinct, reflect the intent and land use permissibility of the Business zone in District Planning Scheme No. 2'.
Clause 8.1 of ASP 80 provides that the Tables to ASP 80 'prescribe the standards, requirements and prerequisites' for development and where any inconsistency exists between the Tables to ASP 80 and the Scheme, the Tables prevail as an intended variation to the Scheme under cl 9.8.3 of the Scheme. Table C of ASP 80 relevantly provides as follows:
1.1the intent of the Central Precinct is to accommodate warehouses, showrooms, trade and professional services and small-scale complimentary and incidental retailing uses, as well as providing for retail and commercial businesses which require large areas such as bulky goods and category/theme-based retail outlets that provide for the needs of the community college due to their nature are generally not appropriate to cannot be accommodated in a commercial area.
…
2.1Zoning
The Central Precinct is assigned as a Business Zone in District Planning Scheme No. 2 (DPS 2)
2.2Land Use Permissibility
In accordance with clause 9.8.3(a) of DPS 2, the permissibility of land uses within the Central Precinct is to be in accordance with the Business Zone as specified in Table 1 of the Scheme. The land use definitions in Schedule 1 of the Scheme apply.
…
2.4Additional Uses
In addition to the uses listed as 'P' or 'D' uses in the Business Zone in Table 1 in DPS 2, the following uses are 'D' uses pursuant to clause 3.2.2 of DPS 2:
• Growers mart (Lots 810 and 811 Wanneroo Road only). …

Table 1 of the Scheme prescribes that within the Business zone the use class 'Shop' is an 'X' use, meaning that the use class is not permitted unless otherwise provided for in the Scheme.

Amendment 4 to ASP 80

In May 2014 the applicant proposed an amendment to ASP 80 (Amendment 4) which sought, relevant to these proceedings, that the use class 'Shop' be a permissible additional use at the subject site subject to conditions which limited the net lettable area of the shop.
On 10 November 2015 the Council of the respondent resolved to recommend to the WAPC that Amendment 4 be approved subject to modifications which included, relevant to these proceedings, that the additional use of 'Shop' be a discretionary additional use on the subject site.
The Tribunal notes that the reference in the Council minutes to 'additional uses' referred to clause 2.3 of Table C of ASP 80. However, as outlined above it is in fact clause 2.4 of Table C of ASP 80 which deals with additional uses which we assume that reference to be a typographical error.
On 6 April 2016 the WAPC advised the respondent in relation to Amendment 4 that:
Pursuant to Part 4, Clause 22(1)(b) of the deemed provisions of the City of Wanneroo District Planning Scheme No. 2, the Western Australian Planning Commission (WAPC) has required Turner Master Planners Aust to modify and resubmit Amendment No. 4 Drovers Place Structure Plan No. 80 in accordance with the Schedule of Modifications (attached).
Once modification to the Structure Plan Amendment has been undertaken, please provide an updated copy of the Structure Plan Amendment to the WAPC. …
The modifications required by the WAPC included that the additional use class of 'Shop' be deleted as an additional discretionary use on the subject site (and Lot 811).
Pursuant to cl 25 of the Deemed Provisions, the applicant has commenced a review in this Tribunal with regard to that decision of the WAPC concerning Amendment 4 (DR 92 of 2016). However, those proceedings (DR 92 of 2016) are presently adjourned by consent of the parties pending the outcome of the judicial review proceedings in the Supreme Court referred to above.
For the purposes of clarity to summarise the various amendments just referred to, Amendment 150 to the Scheme as proposed by Council of the respondent sought to make 'Shop' an additional use capable of approval whether it was by way of discretionary 'D' use or permitted 'P' use.
Whereas Amendment 4 to ASP 80 sought to add 'Shop' as an additional discretionary use in the business zone under clause 2.4.
The WAPC on the other hand, by its letter of 16 September 2016 confirmed what the Minister required in respect of Amendment 150 and by its advice of 6 April 2016 in respect of Amendment 4, made it clear that in its view, the use class of 'Shop' should not be allowed and otherwise be prohibited at the subject site.

The authorities

In Carcione Nominees Pty Ltd & Anor v Western Australian Planning Commission & Ors [2005] WASCA 56 (Carcione) the Full Court of the Supreme Court found at [85]:
The making and amendment of town planning schemes is entrusted to local governments, the Planning Commission and the Minister. The making and amendment of local planning strategies is entrusted to local governments and the Planning Commission. The Tribunal has no role to play in any of these respects (other than as an arbiter of disputes in respects entrusted to it by statute). Thus, in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Barker J, at 451 [87] and [88] referred with approval to the decision of Hardie J in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 at 125 in which his Honour had found that, pending a decision upon a planning proposal incorporated in a draft amending scheme, a court should 'avoid as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take'. Hardie J went on to say that this principle made eminent sense and that planning options seriously entertained by planning authorities should not be peremptorily cut off.
The comments of Hardy J in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 (Coty) at [125] referred to in Carcione above where he states 'a court should "avoid as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take"' has over time become to be known as the 'Coty principal'.
In Marshall v Metropolitan Redevelopment Authority [2015] WASC 226, Pritchard J considered what the term 'orderly and proper planning' and concluded at [179] that:
… the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
In Scutti v City of Wanneroo [2017] WASC 70 at [46], Le Miere J gave consideration to what is meant by having 'due regard' to a structure plan and stated:
… In determining any application for development approval on land to which ASP6 relates the City must have due regard to the relevant provisions of ASP6, that is the City must give proper, genuine and realistic consideration to those provisions which consideration is adequate in all the circumstances. However, the City is not bound by the structure plan. The City may, in considering an application for development approval, depart from the structure plan if it is consistent with proper and orderly planning.

Issue for determination

The issue to be determined by the Tribunal in these proceedings therefore is whether the proposed development is consistent with orderly and proper planning.

Applicant's submissions

The applicant submits that the proposed development should be approved as it is consistent with orderly and proper planning in that:
a)the proposed development is consistent with the decisions of the Council of the respondent in respect of both Amendment 150 and Amendment 4 to ASP 80;
b)the decisions of the Council of the respondent are seriously entertained proposals regarding which the Tribunal should have due regard as required under cl 67(b) of the Deemed Provisions;
c)the considerations in (a) and (b) above outweigh the current provisions of ASP 80;
d)the proposed change of use at the subject site is within the fully constructed Drovers Place complex and will not increase the existing floor space nor give rise to any significant change to the current character or function of the Drovers Place complex; and
e)the Tribunal should give little weight to the decisions of the WAPC in relation to Amendment 4 to ASP 80 and Amendment 150 as well as the decision of the former Minister for Planning in relation to Amendment 150 because the validity of those decisions is subject to judicial review in the Supreme Court and the decision of the WAPC in relation to Amendment 4 to ASP 80 is subject to review in the Tribunal.

The respondent's submissions

The respondent submits that Drovers Place has 'had an unusually, perhaps uniquely, complex and controversial planning history' and referred the Tribunal to summaries of that history in the witness statements of Mr Baracone (at paragraphs 8 - 9) and Mr Turner (paragraphs 16 20 and 51) as well as the Tribunal's reasons for decision in Goldrange Pty Ltd and Western Australian Planning Commission [2016] WASAT 116 at [6] - [12]. The Tribunal also notes the other historical determinations relating to the subject site in Goldrange Pty Ltd and Western Australian Planning Commission [2010] WASAT 52 and Goldrange Pty Ltd and Greenpark Asset Pty Ltd and Western Australian Planning Commission [2013] WASAT 66.
The respondent submits that the proposed development is not consistent with orderly and proper planning and that the following considerations lead inexorably to the conclusion that it should be refused:
a)ASP 80 is the primary vehicle for the orderly planning of Drovers Place and it operates so as to assign an 'X' (prohibited) use classification to a 'Shop' on the subject site;
b)the proposed development would not be in conformity with ASP 80, as required by cl 3.14.3 of the Scheme;
c)the decision maker for Amendment 4 to ASP 80 has determined, in effect, that a 'Shop' should remain a prohibited use;
d)Amendment 150 gives effect to the Business zoning assigned to the Central Precinct by ASP 80 and the Minister for Planning has required through Amendment 150 that a 'Shop' use be a prohibited use at the subject site;
e)Drovers Place is not a recognised activity centre, but rather is an out of Centre development where certain uses are carried out on a limited basis as an exception to the general rule;
f)within Drovers Place, a 'Shop' has always been a prohibited use; and
g)any approval of the proposed development would run counter to the so-called Coty principle as referred to earlier.

The evidence

Whilst the presentation of both parties case relied predominantly on legal submissions and documentary evidence, both parties did provide witness statements from expert town planners and there was some limited cross examination of those town planners at the hearing.
The applicant provided town planning evidence from Messrs Edward Turner and Stephen Allerding and the respondent provided town planning evidence from Mr Pasqualino Baracone.

Consideration

The Tribunal notes that ASP 80 was approved in 2012 in circumstances where ASP 80 was incorporated into the Scheme and had quasi-legislative effect. This is now no longer the case by the introduction of the Deemed Provisions in October 2015. The Tribunal highlights this particular historical fact, being conscious that some of the prescriptive language utilised in ASP 80 does not, indeed cannot by being a creature of its time of approval, acknowledge that the status of ASP 80 would have been altered by cl 27 of the Deemed Provisions from the decision-maker being bound by ASP 80 to now giving it 'due regard'.
The Tribunal finds that, whilst ASP 80 may in its current form utilise language that seeks to prescribe that the subject site is within the Business zone in DPS 2 where a 'Shop' is an 'X' use, the subject site is not within the Business zone, it is within the Urban Development zone.
A 'Shop' use is capable of approval within the Urban Development zone and therefore the proposed development is currently capable of approval.
It was therefore agreed between the parties that the issue in these proceedings is not whether the proposed development can be approved, it is whether it is consistent with orderly and proper planning that the proposed development should be approved.
Whilst having due regard to ASP 80, and being aware that it cannot displace the discretion to be exercised, the Tribunal finds that the historical context in which ASP 80 exists in its present form is a relevant consideration. The Tribunal finds that the combined effect of cl 67(b), (h) and (zb) of the Deemed Provisions is that the Tribunal may, indeed should, also have due regard to Amendment 4 to ASP 80.
The Tribunal was informed by the applicant in closing submissions that, pursuant to s 87(2)(b) of the PD Act, the approval of the modified Amendment 150 by the Minister for Planning following it being resubmitted by the respondent on 2 November 2016 has not been given due to the fact that the previous Minister for Planning gave an undertaking not to decide Amendment 150 until the judicial review proceedings were heard and determined by the Supreme Court.
The applicant submits that the Tribunal should place significant weight on the fact that the respondent, through its position on Amendment 4 to ASP 80 and Amendment 150 to the Scheme, supported the inclusion of 'Shop' being permissible in the Business zone for the subject site, and the Tribunal should place little to no weight on the views of the WAPC and the Minister for Planning.
In accordance with cl 67(b) of the Deemed Provisions, Amendment 150 must be given due regard by the Tribunal. Contrary to the submission by the applicant, the Tribunal finds that the form of Amendment 150 that is to be given due regard and the most weight is the form that has been advertised and that the local government is seriously considering adopting or approving. That is not the form of Amendment 150 that was originally proposed by the respondent, which included 'Shop' as a permissible use at the subject site. It is in fact the form of Amendment 150 that the respondent was directed to submit by the Minister for Planning for final approval, which included 'Shop' as an 'X' (prohibited) use on the subject site and which the respondent did on 2 November 2016. This is the form of Amendment 150 which the respondent refers to in its reasons for refusal of the proposed development.
Neither does the Tribunal agree or accept the applicant's submission as to the weight to be afforded to the original decision of the respondent in comparison to the more recent decision by the Minister for Planning, the ultimate decision-maker on the form that Amendment 150 may take.
The Tribunal finds that the decision of the WAPC in relation to Amendment 4 to ASP 80 and, in particular, the decision of the Minister for Planning in relation to Amendment 150, duly complied with by the respondent, are matters that should be given weight over and above the original decisions of the respondent in relation to Amendment 150 and Amendment 4 to ASP 80. In the Tribunal's view, this conclusion is supported both in fact and law, being that the Minister is the ultimate decision maker as to the form that Amendment 150 may take.
But for the Supreme Court proceedings in respect of Amendment 150 referred to above, it is in the Tribunal's view highly likely that Amendment 150 which the Minister specifically required the respondent to delete the use class 'Shop', as proposed by the respondent, would have been finalised. Only the very last step in s 87(2)(b) being the Minister's approval would likely have been given and the matter progressed to Gazettal pursuant to s 87(3) had it not been for the undertakings given to the Supreme Court.
The Tribunal understands there remains a residual discretion with the Minister for Planning regarding the final decision to be taken on Amendment 150. However, the level of certainty and imminence of Amendment 150 can be distinguished from the uncertainty found by the Tribunal in McDonald's Australia Limited and Presiding Member of the Metropolitan Joint Development Assessment Panel [2015] WASAT 146 at [35] and [106]. As stated in the present case there is in the Tribunal's view a very high degree of certainty (see Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289, (2003) 129 LGERA 195).
In respect of the evidence given by the planners the Tribunal acknowledges that both the applicant's planners were of the opinion that from a planning perspective there would be no real objection to the use proposed.
When questioned as to the respondent's objection to a 'Shop' use at the subject site, Mr Baracone the planner for the respondent agreed in the following passage, that although retail type activities had been approved at the subject site, the planning officers of the respondent had not always been supportive of such activities:
McQUEEN, MR: So the point and once again, Mr BARACONE, I don't say this critically of you at all, isn’t it the case that the officer of the city and the city had taken a fairly strongly held view of opposition to retail uses of the site?
WITNESS, BARACONE: I think we've looked at this place as not being an activity centre, identified.
McQUEEN, MR: Yes.
WITNESS, BARACONE: under the activity centres structure plans sorry policies and for that reason there has not always been support for retail type activities.
McQUEEN, MR: And your decision, that is the respondent's decision, in this case is actually consistent with that underlying philosophy, isn't it?
WITNESS, BARACONE: Yes, it is.
McQUEEN, MR: And the proposed amendment to ASP80 I beg your pardon, the recent amendment which seeks to prohibit a shop use and proposed amendment 150, at least from the officer's perspective, is once again consistent with that. It's trying to and I use this word not in an emotive sense, but it's trying to sort of lock out any future opportunities for shop uses, isn't it?
WITNESS, BARACONE: Yes, that's a fair statement.
(T:41-42; 04.05.17)
The question of what weight to give the planners evidence in light of the various planning instruments was a matter both Counsel addressed in submissions with Counsel for the applicant stating:
… Do you follow the structure plan and amendment 50, in which case we lose, or do you accept our argument that whilst they're relevant, they cannot be determinative. And of course, that's what some of these cases go to, and should it be approved on its merits.
Because when you look at the way the argument has been cast by both sides, it's about orderly and proper planning. We say, a simple point, putting aside those other instruments, this would always be approved. The question is, in light of those instruments, should what would otherwise be the correct and preferable decision be displaced by reference to those instruments. Well, not instruments, by one instrument and a proposed amendment.
Now, where the contest is going to be between Mr Slarke and myself, as I see it, is how much weight do you apply to those things[.]
(T:18; 04.05.17)
And later stating:
… we accept that Wanneroo and the Commission have always had a difficulty in fact (indistinct) opposition to shops and retail uses of the site. But, for better or worse in our case, better the tribunal and others have given us a range of those uses.
…
… And we've got the liquor store, we've got a baker, we've got a butcher, so that's relevant. And also M, the compatibility of the development in its setting, so there's all these other existing retail uses around us. All we're doing is rounding rounding it out, we say[.]
(T:19-20 04.05.17)
Counsel for the respondent also addressed those issues and stated:
So there have been some things which might otherwise be a shop, such as a grower's mart, and some limitations on floor space, but a shop use per se has never been something which was capable of approval. So the planning framework says it's prohibited. Historic that's the current planning framework. The previous planning framework says it's prohibited. And not only that. The draft planning framework, proposals to change the framework, also say shop use are prohibited.
The applicant's attempt to change the planning framework to amendment 4 is rejected by the WAPC. And that has been reinforced by the Minister's decision on amendment 150. So it's scarcely possible to conceive of a case where it could be made more clear by the historic, current and proposed planning frameworks that the use should not be approved on the subject land[.]
(T:61; 04.05.17)
And later stated:
SLARKE, MR: The other considerations which the applicant points to, I think, distil down to one proposition and that is that approving the use won't itself have any substantial negative impacts and that may well be correct but we say two things about: the first is that planning at the margin is bad planning. An application shouldn't be judged solely or primarily on its incremental impact. To consider and judge an application for approval in isolation is to ignore the wider context and it runs the risk that incremental changes in the longer run create or contribute to an overall planning overall poor planning outcome, so don't look at it in isolation.
But, secondly, and perhaps more fundamentally, the incremental impact of this proposal should be and properly is a secondary consideration in the assessment for merits. The primary consideration should be what does the planning framework say about the suitability of the use in this location? If the planning framework were to say that the use is acceptable or it may be acceptable, subject to certain parameters, then one turns to the impact of the use itself and consider that or those factors about the impact that this particular use will have.
So the weight which might be given to the fact that the use is unlikely to have any substantial negative impact in this case shouldn't displace the what we say is the irresistible conclusion that use just is not considered appropriate in the zone by the planning framework.
(T:65; 04.05.17)

The argument that all the applicant was doing in seeking to have a 'Shop' use approved in circumstances where other retail uses had previously been approved, in Counsel's words 'all we're doing is rounding it out' is seductive. However, the Tribunal in the particular circumstances of the present case finds that if the Tribunal were to approve the proposed development at this point in time it would run counter to the Coty principal as outlined earlier.
The Tribunal finds that an approval of the proposed development would be giving a determination that would render more difficult, if not render nugatory, the ultimate decision currently before the Minister for Planning as to the form the Scheme, or more particularly Amendment 150, should take. It is not the role of the Tribunal to peremptorily cut off planning options seriously entertained by planning authorities and particularly in circumstances such as the present case where but for undertakings given by the Minister for Planning to the Supreme Court there would in all likelihood be no discretion for the Tribunal to exercise.
The Tribunal does not agree with the applicant's submissions in relation to Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 (Falc) at [534] and Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 (Tah Land) at [51]. The Tribunal is of the view that the current proceedings are distinguishable from both Falc and Tah Land and the basis for the Tribunal's refusal in this matter rests largely with the Coty principal.
Furthermore, the Tribunal's refusal to not allow the proposed development is not necessarily the final act in the matter as the Tribunal is simply concluding that at this time it is consistent with orderly and proper planning to await the imminent outcome of Amendment 150 and it is not the Tribunal's role to influence or indeed effectively determine that outcome.
The Tribunal finds that it is highly likely that the finalisation of Amendment 150 will result in the proposed development being an 'X' (prohibited) use. However in the event that Amendment 4 to ASP 80 and Amendment 150 do not eventuate in the form recommended by the WAPC and required by the Minister for Planning but both eventuate in the form proposed by the applicant and originally by the respondent, a further development application can be made at that time.
The respondent submitted that it is difficult to contemplate a case in which it could be made more clear by the historic, current and proposed planning framework that the proposed use should be refused. The Tribunal respectfully agrees with that submission in the circumstances that exist at this point in time.
Therefore, from the starting point of the primacy of the Scheme where the proposed development is capable of approval, in the exercise of its discretion the Tribunal makes the following findings in respect of the relevant facts:
a)That due regard but little weight should be given to Amendment 4 to ASP 80 as proposed by the applicant and the respondent which designated a 'Shop' as an additional discretionary use on the subject site;
b)That due regard but little weight should be given to the form of Amendment 150 as originally proposed by the respondent which permitted a 'Shop' use on the subject site;
c)That in the unusual circumstances of the present case the evidence of the town planning witnesses are of only marginal value and little weight should be given to that evidence in light of the Tribunal's findings in relation to the statutory planning instruments;
d)That due regard and some weight be given to ASP 80 in its present form and its historical context which pointed to Shop being an X use on the subject site;
e)That some weight be given to Amendment 4 to ASP 80 in the form determined by the WAPC on 6 April 2016 but acknowledging that decision is under review in the Tribunal though adjourned pending the outcome of the judicial review proceedings in the Supreme Court; and
f)That due regard and considerable weight should be given in particular, to Amendment 150 in the form required by the Minister for Planning and duly complied with by the respondent on 2 November 2016.
Further, the Tribunal notes that the WAPC being the peak planning body in the State in its letter of 8 April 2015 has set out its reasons for requiring changes to Amendment 150 of the Scheme and as is clear from the WAPC's advice of 16 September 2016 the Minister for Planning has required the respondent pursuant to s 87(2)(b) of the PD Act to modify the proposed amendment by deleting the use class 'Shop'.
In all those circumstances and based on the findings set out above the Tribunal is of the view that in the interests of orderly and proper planning and recognising the temporary stasis in respect of the various amendments due to the proceedings and undertakings in the Supreme Court, and the principles outlined in the Coty principle the balance weighs heavily against approval of the proposed development at this particular time.

Conclusion

For all of the reasons outlined above the Tribunal concludes that the proposed development application is not consistent with orderly and proper planning and the correct and preferable decision is to affirm the decision of the respondent dated 30 January 2017 to refuse the proposed development and that the application for review should be dismissed and the Tribunal will make such orders.

Orders

1.The decision of the respondent on 30 January 2017 to refuse the proposed development is affirmed.
2.The application for review is dismissed.

I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, SENIOR MEMBER