GOLDRANGE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2010] WASAT 52

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: GOLDRANGE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 52

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MS M CONNOR (MEMBER)

HEARD: 15, 16 AND 17 DECEMBER 2009

DELIVERED : 13 APRIL 2010

FILE NO/S: DR 318 of 2009

BETWEEN: GOLDRANGE PTY LTD
GREENPARK ASSET PTY LTD
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Amendment to Local Structure Plan Additional uses Showroom and storage unit Potential to increase retail development Potential to convert existing uses to showroom use Whether consistent with zoning Whether consistent with existing hierarchy of activity centres Outofcentre development Whether additional uses would adversely affect neighbouring activity centres Precedent

Legislation:

City of Wanneroo District Planning Scheme No 2, cl 3.16.1, cl 9.6.3(a), Pt 9, Sch 7
Drover Place Precinct Local Structure Plan No 47, cl 5.0, cl 7.2.1, cl 9.7.1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241(1), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31

Result:

The matter is listed for directions

Category: B

Representation:

Counsel:

Applicants: Mr P McQueen and Ms R Somerford
Respondent: Ms C Ide

Solicitors:

Applicants: Lavan Legal
Respondent: State Solicitor's Office

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Goldrange Pty Ltd and Greenpark Asset Pty Ltd applied to the State Administrative Tribunal for review of the Western Australian Planning Commission's decision to refuse to adopt Amendment 1 to the Drovers Place Precinct Local Structure Plan No 47.
The proposed amendment sought to incorporate the following text into the statutory planning section of the structure plan:
a)adding the following text to the end of cl 5.0(b) 'with the exception of the land uses permitted herein which, pursuant to cl 9.8.3(b) and (f), shall be applied as an intended variation to the Scheme and shall prevail over the land uses permitted for the land under the Scheme', and
b)adding the uses of 'Showroom' and 'Storage Unit' to the permitted uses for Lots 810 and 811 under cl 7.2.1.
In determining whether Amendment 1 to the Drovers Place Precinct Local Structure Plan No 47 should be adopted, the Tribunal had regard to the following matters:
i)whether Amendment 1 would potentially result in an increase in retail development on the subject land, or otherwise result in the existing development being converted to showroom use;
ii)whether Amendment 1 was consistent with the zoning of the subject land under the Metropolitan Region Scheme and the City of Wanneroo District Planning Scheme No 2 and meets the requirements for a structure plan under Pt 9 of the City of Wanneroo District Planning Scheme No 2;
(iii)whether Amendment 1 was consistent with the existing hierarchy of activity centres provided for in the planning framework and strategies for position of retailing activities.
iv)whether Amendment 1 would adversely affect neighbouring activity centres; and
v)whether Amendment 1 would create an undesirable precedent for further amendment to Drovers Place Precinct Local Structure Plan No 47.
The Tribunal was concerned that the current construction of the amendment could potentially facilitate the conversion of the entirety of the floorspace on Lot 810 and Lot 811 to showroom use and the possibility for a range of retailing activities, other than the sale of bulk goods, to be established within the centre. If this should occur, the retail impacts on the existing and planned activity centres was not known, nor were the traffic implications on the structure plan area or the surrounding road network. The Tribunal was not prepared to support an amendment that did not restrict the size and/or location of showroom floorspace on Lot 810 and Lot 811 and possibly the incorporation of some provision to confine the retail activities that could be permitted within the showroom use. The Tribunal considered that the amendment could be appropriately modified to overcome these concerns.
In respect to the planning framework, the Tribunal found that the amendment was consistent with the Metropolitan Region Scheme and the City of Wanneroo District Planning Scheme No 2 and that approval of a limited expansion of Drovers Place would not undermine the existing and planned hierarchy of activity centres in the locality, given the likely trade impacts and the anticipated growth in demand in the catchment area.
The Tribunal concluded that it was prepared to adopt a modified Amendment No 1 to Drovers Place Precinct Local Structure Plan No 47 that restricted the size and/or location of showroom floorspace on the subject land and provided some limits on the retail activities that would be permitted under the showroom use. The Tribunal considered it appropriate that the parties have the opportunity to discuss how this could best be achieved and, if possible, agree an outcome. If this was not possible, the Tribunal would require submissions on the matter to determine the form of the amendment.

Background

Goldrange Pty Ltd and Greenpark Asset Pty Ltd (applicants) collectively own two parcels of land, namely Lot 810 and Lot 811 Wanneroo Road, Wanneroo (subject land), which form part of an area that is subject to Agreed Structure Plan No 47 Drovers Place Precinct Local Structure Plan No 47 (LSP 47) under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme). LSP 47 applies to land bounded by Wanneroo Road to the east, Drovers Place to the north and Yellagonga Regional Park to the west and south (see Attachment 1). The subject land is designated 'Restricted Use' Precinct in LSP 47.
On 19 December 2007, the applicants lodged with the City of Wanneroo (City) an application to amend LSP 47 in the following manner:
Clause 7.2.1 'Land Use Permissibility' be amended by adding the following permissible uses: Showrooms, Pharmacy (discount outlet), Medical Centre, Liquor Store, Recreational Centre and Self Storage Units.
On 8 April 2008, the City considered that application and resolved to initiate a modified amendment to LSP 47 that proposed to increase the land use permissibility within the 'Restricted Use' Precinct on the subject land to include showrooms, selfstorage units, veterinary consulting rooms and veterinary hospital (Amendment 1). Amendment 1 was advertised for public comment in accordance with Pt 9 of DPS 2, closing date for submissions being 27 May 2008.
In May 2008, the applicants lodged an application for review with the State Administrative Tribunal (SAT) seeking review of the City's decision not to initiate and advertise Amendment 1 without all of the uses that had been applied for (DR 175 of 2008). The applicants withdrew from these proceedings in September 2008.
Two submissions were received during the advertising period. The adoption of Amendment 1 was considered by the City at its meeting of 18 November 2008 where the Council resolved to refuse to adopt Amendment 1 to LSP 47 and forwarded the matter to the Western Australian Planning Commission with a recommendation that the amendment be refused.
The applicants lodged an application for review with SAT, seeking review of the City's decision. The matter proceeded to mediation, resulting in an invitation by the Tribunal to the City to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA). At its meeting of 10 March 2009, the City set aside its previous decision and substituted a new decision that supported a modification to LSP 47 that:
a)adds the following text to the end of the structure plan clause 5.0(b) 'with the exception of the land uses permitted herein which pursuant to clause 9.8.3(b) and (f), shall be applied as an intended variation to the Scheme and shall prevail over the land uses permitted for the land under the Scheme', and
b)adds the uses of 'Showroom' and 'Storage Unit' to the permitted uses for Lots 810 and 811 under cl 7.2.1 of the structure plan.
The Tribunal made orders of 7 April 2009, inter alia, that LSP 47 be modified in terms of the Council resolution made on 10 March 2009 and that the City forward the modified LSP 47 to the respondent for a determination, in accordance with cl 9.7.1 of DPS 2.
On 11 August 2009, the respondent considered the matter and resolved:
… pursuant to Pt 9 of the City of Wanneroo District Planning Scheme No 2, to refuse to adopt Amendment No 1 to the Drovers Place Precinct Local Structure Plan No 47 as submitted by the City of Wanneroo on 8 April 2009 for the following reasons:
(a)The City's draft Activity Centres Strategy/Local Planning Policy promotes a hierarchy of existing and future centres in close proximity to the subject site, including Wanneroo Town Centre, Banksia Grove District Centre, Carramar Neighbourhood Centre and two Tapping Local Centres. The draft Activity Centres Strategy/Local Planning Policy does not identify the subject site as an activity centre.
(b)State Planning Policy 4.2 'Metropolitan Centres Policy Statement for the Perth Metropolitan Region', draft State Planning Policy Activity Centres for Perth and Peel, Directions 2031 draft Spatial Framework for Perth and Peel and the Network City Strategy identify activity centre hierarchies. The two additional land uses proposed have the potential to contribute towards the identification of the subject site as an activity centre, thereby adversely impacting upon the activity centre hierarchy of existing and future centres in the surrounding locality.
(c)State Planning Policy 4.2 'Metropolitan Centres Policy Statement for the Perth Metropolitan Region' recommends that bulky goods retailing (including activities requiring large display areas associated with household goods, home improvement stores, automotive products, specialised goods and the like) should be located within Regional and District Centres or in a designated mixed business area.
(d)State Planning Policy 4.2 'Metropolitan Centres Policy Statement for the Perth Metropolitan Region', draft State Planning Policy Activity Centres for Perth and Peel, Directions 2031 draft Spatial Framework for Perth and Peel and the Network City Strategy recommend that activity centres should have levels of activity, accessibility and diversity sufficient to attract people and sustain public transport and a range of other services and economic activities. The subject site is considered to predominately cater for access by motor vehicles from Wanneroo Road to the east and Drovers Place to the north. The bus stops and routes servicing the subject site are not considered to be 'high frequency public transport services'. In addition, walking and cycling access to the subject site is considered inadequate with few footpaths, shared paths and cycle paths accessing the subject site from the adjoining Wanneroo Road and Drovers Place.
(e)The subject site is not located within a designated activity centre and is not integrated as a peripheral precinct adjacent to other commercial zoned land in a designated activity centre. The proposed inclusion of showrooms is, therefore, considered to be inconsistent with this recommendation of draft State Planning Policy 'Activity Centres for Perth and Peel'.
The applicants, on 21 August 2009, made an application under s 252(1) of the Planning and Development Act 2005 (WA) to have the decision reviewed.

Subject land and its context

Goldrange Pty Ltd is the registered proprietor of Lot 810 on Deposited Plan 42376 (Certificate of Title Volume 2613, Folio 1) and Greenpark Asset Pty Ltd is the registered proprietor of Lot 811 on Deposited Plan 42376 (Certificate of Title Volume 2613, Folio 2). Lot 810 is 2.8009 hectares in area and Lot 811 is 2.9488 hectares in area, giving a combined total area of 5.7497 hectares. This area comprises the 'Restricted Use Precinct' in LSP 47.
The subject land is currently developed with a growers mart, including wholesale butcher (with retail outlet), a fruit and vegetable wholesaler (with a retail outlet), a fish wholesaler (with retail outlet), a bread shop, a retail nursery and café/restaurant. The floor area of the existing buildings equates to approximately 10,582 square metres over the two lots. There is a further 2,935 square metres of floorspace approved but not constructed. The applicants intend, if the amendment is approved, to expand on the undeveloped southern side of Lot 811 with 3,265 square metres of showroom floorspace, 2,947 square metres of warehouse and 2,400 square metres of selfstorage (see Attachment 2).
Drovers Place is located at the intersection of Wanneroo Road and Joondalup Drive. Access to the subject land is via Wanneroo Road to the east and Drovers Place to the north.
LSP 47 covers an area of approximately 34.29 hectares and comprises 15 lots. Current land uses within LSP 47 area include rural residential, a fire station, equestrian, botanical golf and restaurant, aged care facility, rural industry and regional reserve parks and recreation.

Planning Framework

The subject land is zoned 'Urban Deferred' in the Metropolitan Region Scheme (MRS) and 'General Rural' under DPS 2.
The objectives of the General Rural zone, at cl 3.16.1 of DPS 2, are to:
a)accommodate agricultural, horticultural and equestrian activities;
b)maintain and enhance the rural character and amenity of the areas designated for rural use and to protect … environmental values.
Part 9 of DPS 2 enables the preparation and adoption of structure plans within the scheme area. LSP 47, which has effect under Pt 9 of DPS 2, designates the land in the 'Restrictive Use' Precinct. It is noted that the text of LSP 47 refers to Restrictive Use Precinct, but the structure plan itself designates the land 'Restricted Business Use'.
The objectives of the LSP 47 are to:
a)Provide a flexible planning framework for the structure plan area that is responsive to a range of suitable development and land use options.
b)Provide for the coordinated development of the structure plan area and the orderly provision of appropriate infrastructure.
c)Protect and enhance the environmental, heritage and landscape values of the structure plan area and adjacent regional parks.
d)Provide adequate public access around the adjacent lake and connections through the structure plan area to the Neerabup Regional Park.
The preferred land uses in the structure plan area include restricted use, special residential and tourism-related uses. Industrial, commercial, rural and either conventional or medium to high density residential development are not considered suitable.
Clause 7.2.1 of LSP 47 sets out the use permissibility for the subject land, which is restricted to retail nursery with incidental café, landscape supplies and growers mart, which means any land or building used for the wholesale, distribution and retail sale of primary products, including fruit and vegetables, meat, fish and bread.
Clause 5.0 of LSP 47 sets out the relationship of the structure plan with DPS 2 and provides that the provisions, standards and requirements specified under Pt 1 of the structure plan shall have the same force and effect as if it were a provision, standard or requirement of the Scheme. The clause further states that:
b)in the event of there being any inconsistencies or conflict between the provisions, standards or requirements of the Scheme and the provisions, standards or requirements of this structure plan, then the provisions, standards or requirements of the Scheme shall prevail.
The proposed amendment seeks to make clear that land uses specified in LSP 47 are to be treated as a variation of the Scheme, as is contemplated in cl 9.8.3.(b) and cl 9.8.3(f) of DPS 2. The consequence would be to make clear the uses prescribed in LPS 47 take precedence over uses prescribed in DPS 2 for the relevant zone.
The definition of 'showroom' under DPS 2 is contained in Schedule 1 Interpretations and means:
[P]remises wherein goods are displayed and may be offered for sale or hire excluding the sale of foodstuffs, liquor or beverages, items of clothing or apparel (except as hereinafter stipulated in this definition) or personal adornment, magazines, books, newspapers or paper products, and medicinal or pharmaceutical products unless assembled or manufactured on the premises. The term includes the sale of second hand clothing or apparel by welfare and charitable agencies with the approval of Council.
'Storage Unit' is not a specified use class in DPS 2.
The relevant policies formulated by the respondent and the City to guide decisionmaking include:
i)Statement of Planning Policy No 1: State Planning Framework (Variation No 2) (SPP 1). This policy unites existing State and regional policies, strategies and guidelines within a central framework to provide a context for decision-making on land use, subdivision and development in Western Australia. It informs decisionmakers in the planning process on those aspects of State level planning policy which are to be taken into consideration, and given effect to, in order to ensure integrated decision-making across all spheres of planning. The plans, policies and strategies that form the State Planning Framework are listed in Part B of SPP 1. The relevant policies listed in SPP 1 are:
•Statement of Planning Policy No 4.2: Metropolitan Centres Policy Statement (SPP 4.2) The principal purpose of this policy is to provide a broad regional planning framework to coordinate the location and development of retail and commercial activities in the metropolitan region. It is intended to provide guidance in respect to development of commercial activities at the regional and district levels. Local planning strategies prepared by local governments are to provide more detailed guidance at the local level.
Clause 2.5 of SPP 4.2 provides that the policy is intended to provide a guide for centre development to respond to market conditions and has a degree of certainty to assist in commercial investment decisions.
The subject land is not listed as a centre in the 'Hierarchy of Metropolitan Centre' (Appendix 2).
SPP 4.2 identifies the Strategic Regional Centre at Joondalup in close proximity to Drovers Place (within 2 kilometres) and the District Centres of Wanneroo and Neerabup (Banksia Gove) within 3.5 kilometres of Drovers Place.
Clause 4.1.2 provides that:
In determining major shopping centre development proposals the Commission will not support proposals which are in the opinion of the Commission likely to:
•undermine the established and/or planned hierarchy of centres;
•adversely affect the economic viability of existing, approved and planned centres where this could result in deterioration of the level of service to the local community or undermine public investments in infrastructure or services.
Among the general policy measures contained in SPP 4.2 is cl 4.1.11, which provides that retail commercial developments will not be supported unless located in centres.
Clause 4.1.9 of the policy relates to bulky goods retailing and states that:
Bulky goods retailing (including activities requiring large display areas associated with household goods, home improvement stores, automotive products, specialised good and the like) should be located within Regional and District Centres or in designated mixed business areas.
•Network City is a strategy for the long term management of Perth and Peel regions adopted in September 2004. The emphasis is on 'activity centres' rather than 'retail centres'. The underlying theme of Network City is to integrate transport and land use in a network of activity centres connected by activity corridors that allow for movement of people and freight. A key action to support the Network City Strategy is to:
Determine the location of, and classification criteria for, activity centres by reviewing the Western Australian Planning Commission's Statement of Planning Policy 4.2 Metropolitan Centre Plan, to reflect the intent of this strategy and recognise a connected network of centres of differing scale and types.
The Network City Framework indicates how the essential principles of Network City might be applied. It identifies activity centres, which are locations where a range of activities are encouraged. There is a centre identified in the general vicinity of the subject land by a dot on a plan, but it is unclear as to whether it applies to the subject land or some other land.
ii)Draft State Planning Policy: Activity Centres for Perth and Peel (Draft Activity Centre SPP) This policy has been advertised for public comment but the submissions have not been considered, as yet, by the respondent. The main purpose of this policy is 'to specify broad planning requirements for the planning and development of new, and the redevelopment and renewal of existing, activity centres in urban areas of Perth and Peel'. Activity centres, broadly defined, are 'community focal points for people, services, employment and leisure that are highly accessible. Key characteristics include their levels of diversity, accumulation of activities and access to public transport. Commercial, retail, higherdensity living, entertainment, tourism, civic/community, higher education, and major or specialised medical services are just a few such activities'. The activity centres hierarchy for district town centre level and above is set out in Table 1 of the policy. The hierarchy identifies Joondalup as a 'Primary Activity Centre', Wanneroo as a 'Regional Town Centre' and Neerabup (Banksia Grove) as a 'District Town Centre', all centres within close proximity to the subject land. One of the policy's aims is to apply the activity centre hierarchy as part of a longterm and integrated approach. Clause 5.1 of the policy advocates that responsible authorities should not support development proposals which are likely to undermine the established and/or planned activity centre hierarchy. Clause 5.9 of the policy relates to bulky goods retailing and states:
The responsible authority should manage the location of quasiretailing such as bulky goods (showrooms) retail outlets to ensure that pedestrian-based shopping is located in a pedestrianfriendly urban environment.
Mixed business zones and similar zones accommodating bulky goods retail (showrooms) should be:
•located in designated activity centres in order to promote the centres and discourage the encroachment of commercial activities into residential and industrial areas, and
•integrated as peripheral precincts, generally adjacent to other commercial-zoned land in primary centres, strategic city centres, regional town centres and district town centres, accessible to the regional road network and public transport.
iii)City of Wanneroo Centres Local Planning Policy (2000) (Wanneroo Centres Policy) The policy was adopted by the City in 2000 but has not been endorsed by the respondent. This policy identifies a hierarchy of centres in the municipality. Identified centres that are within close proximity to the subject land include two district centres, being the Wanneroo Town Centre and Banksia Grove District Centre, a neighbourhood centre in Carramar and local shops in Tapping, Banksia Grove and Carramar. The subject land is not identified in this policy, although clause NM5 states that '[t]he proposal to relocate the neighbourhood centre in Carramar to the intersection of Joondalup Drive and Wanneroo Road shall not be supported'.
iv)Draft City of Wanneroo Activity Centres Strategy (August 2008 version 3) (Wanneroo Draft Activity Centres Strategy) This policy was adopted by the respondent and advertised for public comment until 14 November 2008. The submissions are yet to be considered by the City. This Local Planning Policy is intended to supersede the Wanneroo Centres Policy. The policy identifies six types of activity centres. The roles of the different types of centres are considered in terms of their total mix of uses. The hierarchy of activity centres, therefore, is not the same as a hierarchy of retail centres, which formed the basis of the Wanneroo Centres Policy. The Policy identifies a number of existing and future activity centres in close proximity to the subject land, including Wanneroo Town Centre (regional centre), Banksia Grove (district centre), Carramar (neighbourhood centre) and several local centres in Banksia Grove. The Policy refers to the growers market and nursery at Drovers Place as 'outofcentre' development. The Policy does not support 'outofcentre' development as they undermine the sustainability of established and proposed activity centres, encourage greater car use, are usually not well serviced by public transport and do not contribute to a local sense of place in the way traditional centres can. The Policy advocates the location of bulky goods and other large format retailing within or on the edge of Strategic Regional, Regional and District Centres, but integrated effectively with the rest of the centres.

Issues for determination

The principal issue for determination in this review is whether Amendment 1 to LSP 47 should be adopted, having regard to whether the proposed amendment will:
i)potentially result in an increase in retail development on the subject land, or otherwise result in the existing development being converted to showroom use;
ii)be consistent with the zoning of the subject land under the MRS and the DPS 2 and meets the requirements for a structure plan under DPS 2;
iii)be consistent with the existing hierarchy of activity centres provided for in the planning framework and strategies for position of retailing activities.
iv)adversely affect neighbouring activity centres; and
v)create an undesirable precedent for further amendment to LSP 47.
In relation to above matters, the Tribunal received expert evidence from the following planning witnesses:
•Mr Neil Leslie Foley, a consultant town planner, who gave evidence on behalf of the respondent;
•Mr Stephen James Ryan, Team Leader Metropolitan Policy of the Department of Planning, who gave evidence on behalf of the respondent;
•Mr Edward Robert Turner, a consultant town planner, who gave evidence on behalf of the applicants;
•Mr Leonard Kosova, Director, Planning and Sustainability of the City of Wanneroo, who gave evidence on behalf of the applicants; and
•Mr Angus Wakefield Witherby, a consultant town planner, who gave evidence on behalf of the applicants.
The Tribunal also had the benefit of expert evidence from Ms Janet Iverach, a geographer and urban and regional planner specialising in retail research and planning called on behalf of the respondent, and Mr Brian Haratsis, an economist and strategic planner with considerable experience in retail planning, called on behalf of the applicants.

Whether Amendment 1 to LSP 47 will potentially result in an increase in retail development on the subject land, or otherwise result in the existing development being converted to showroom use.

The respondent argued that the definition of showroom, as contained in DPS 2, provided for a wide range of retail activities that would usually be located in a shop either separate from or in a shopping centre and that the inclusion of the showroom use in the 'Restricted Use' Precinct of LSP 47 would result in a significant increase in retail development on the subject land, which would have a detrimental impact on planned and existing activity centres in the area.
Mr Foley told the Tribunal that the showroom definition contained in DPS 2 provided for the sale of a significantly wider range of goods than is provided for in the Model Scheme Text's definition of 'showroom'. Ms Iverach referred to the Planning Land Use Category (PLUC) of the WA Standard Land Use Classification, in particular categories PLUC 5 Shop/Retail, to identify the following list of PLUC 5 uses that could potentially operate under the 'showroom' definition as contained in DPS 2:
Duty free store (not liquor); fabric shop and dressmaking accessories retail; knitting wool and accessories retail; manchester goods and soft furnishings; kitchenware; furniture and home furnishings and equipment retail (Nec); household appliances; music and musical instruments; electronic equipment and parts; antiques; secondhand merchandise (including clothing if approved by Council); craft and art supplies (not paper products) gifts novelties and souvenirs; sporting goods and trophies; bicycles; toys and hobbies; firearms; business and computing equipment; watchmakers and jewellers; florists; cameras and photographic supplies; sheepskins; pet and pet supplies; leather goods and saddlery; other retail (Nec); motion picture distribution and services (including video hire).
According to Ms Iverach, the existing development on the subject land contains 8,863 square metres of net lettable area (nla) (excluding the outdoor display area), of which comprises:
•2,206 square metre nla (25%) of PLUC 5 activities,
•2,147 square metres nla (24%) of PLUC 6 activities; and
•4,510 square metres nla (51%) of non-retail activities.
A further 2,935 square metres of building has been approved on Lot 810, of which Ms Iverach asserted that 2,032 square metres nla could potentially be used for showroom purposes. The indicative proposed development for Lot 811 (which does not form part of the structure plan) contains a nla of 7,350 square metres, including a showroom component of 3,265 square metres nla.
The parties agreed that the total showroom component of the approved but not constructed and the planned development (Lot 810 and Lot 811) is 5,288 square metres nla, being 51% of the 10,285 square metres nla total.
The respondent was concerned that, given the definition of showroom under DPS 2, there was, at least, the potential for an additional 5,288 square metres of floorspace that could be utilised by PLUC 5 uses in a location that was not designated as an activity centre. Ms Iverach explained to the Tribunal that the nature of retailing is changing with the introduction of large format retailing, such as Spotlight, (large floorspace retailing lots of small items) and themed centres/stores, such as Freedom Furniture (outlets offering bulky goods and smaller accessory items for sale). She considered that it was becoming more difficult to divorce shops from showrooms as bulky and nonbulky goods were mixed together, and that this change has led to a proliferation of retail uses along major roads in buildings that purport to be showrooms. Ms Iverach held that it was better to accommodate all of these types of retailing in a planned centre.
Mr Haratsis considered that this was not possible, nor would it be preferable, as he asserted that there is a need in the retail network to provide for a range of showroom type uses that are car based, and these centres are more appropriately located on main roads. He also argued that in order to have a competitive retail network there was the need to provide for different price points.
Mr Foley and Mr Ryan were of the view that the inclusion of showroom use within the 'Restricted Use' Precinct without any restrictions on the amount, types of showroom uses or the range of goods that could be permitted, could radically change the nature of the operations of the site as the entirety of the available floorspace could be converted to showroom use. Both Mr Foley and Mr Ryan considered that if the showroom use was a permitted use, then land economics would result in redevelopment of Precinct to the 'highest and best' economic use, which would be showroom/retail. If this should occur, they say that there could be up to 20,000 square metres of commercial floorspace, which is larger than most of Perth's district activity centres. Mr Foley also expressed concern that a conversion of this nature would have significant traffic implications for the LSP area and the surrounding road network.
In the conferral of witnesses process, Mr Kosova suggested the possibility of modifying Amendment 1 to address the concerns raised by Messrs Foley and Ryan. Further, counsel for the applicants informed the Tribunal that the applicants had absolutely no intention of converting the existing growers mart to showroom use.
The Tribunal accepts the respondent's contentions that the amendment, as currently constructed, could potentially result in the conversion of all of the existing floorspace on the subject land to showroom use and that this could result in a wider range of retail activities other than the sale of bulky goods.
In the course of the proceedings, the Tribunal requested the planning witnesses jointly to consider and provide advice on how Amendment No 1 could be modified to:
(i)confine the retail activities that could be permitted under the 'Showroom' definition of DPS 2; and
(ii)restrict the size and/or location of showroom floorspace on the subject site.
With the limited time available, the planning experts considered various ways of addressing the identified aims but were unable to agree on the most appropriate way of modifying the amendment. The Tribunal is not discouraged by this failure because the conferral process highlighted the complexities involved in addressing these concerns and accepts that the limited time available to the experts was insufficient to come to any conclusive view.
Pursuant to cl 9.6.3(a) of DPS 2, the Commission, and the Tribunal on review, may adopt the Structure Plan with or without requiring any modifications or it may refuse to adopt the Structure Plan. The Tribunal accepts the concerns raised by the respondent in relation to the construction of the amendment in respect to the potential for the conversion of the entirety of the floorspace to showroom development and possibility for a range of retailing activities other than the sale of bulk goods, but is of the view that the amendment can be modified to overcome these concerns.

Whether the proposed amendment is consistent with the Metropolitan Region Scheme and DPS 2 and meets the requirements for a structure plan under DPS 2

MRS amendment 1155/57 was initiated by the respondent to rezone the LSP 47 land from 'Rural' zone to 'Urban' zone. The amendment was modified to 'Urban Deferred' zone prior to finalisation in February 2009, on the basis that a new structure plan should be formulated, addressing access and drainage, interface issues with Yellagonga Regional Park, developer contribution arrangements and ultimate development potential having regard to existing land uses, prior to the transfer of the land to the 'Urban' zone. The respondent asserted that until the issues identified in the MRS amendment report are appropriately resolved, it cannot be said that the proposed additional uses contemplated by Amendment 1 are consistent with the zoning under MRS.
In essence, a new structure plan for the LSP 47 area is required prior to the land being designated 'Urban' in the MRS. Draft Structure Plan No 80 Drovers Precinct (SP 80) has been formulated to address the concerns raised in the consideration of the amendment to the MRS and that SP 80 is currently being advertised for comment. The proposed amendment is not at odds with the future direction envisaged for the structure plan area. Given the nature of the existing centre and the development that has occurred within the structure plan area, the Tribunal considers Amendment 1 to be of a minor nature and consistent with the planning intent for the area.
The respondent also pointed out that the additional uses are currently not permissible in the 'General Rural' zone and argued that the additional uses would be a significant divergence from the types of uses one would expect in a 'General Rural' zone. The respondent considered the physical character, use and access requirement of the additional uses to be inconsistent with the objectives of the 'General Rural' zone and submitted that the structure plans process should not be used to amend the permissibility of uses in zones that have uses listed in the use class table. The respondent asserted that the proposed amendment is deficient and fails to consider or address all of the relevant matters that should be considered and addressed in the preparation of a structure plan, including those listed in Sch 7 of DPS 2. The respondent was particularly concerned that the amendment failed to consider the planning impacts of the proposed amendment on other matters in LSP 47, as well as planning issues external to LSP 47, identifying, apart from retail impact, the potential impacts on Yellagonga Regional Park and on the traffic and access arrangements. Mr Foley considered that there should have been a more comprehensive approach taken with the formulation of this amendment and that it should have at least included detailed provisions relating to the size, location, orientation and design of buildings and open space, a review of developer contributions for common infrastructure, staging of development and subdivision.
The intent of LSP 47 is to provide broad development principles so as to guide and facilitate a coordinated and integrated approach to development within the study area. LSP 47 expresses the desired outcome rather than establishing a detailed layout for subdivision and development. It was purposefully constructed in this manner so as to provide a flexible planning framework that is responsive to a range of suitable development and land use options. LSP 47 also identifies, as an objective, the need '[t]o protect and enhance the environmental, heritage and landscape values of the structure plan area and adjacent regional parks and provides special provision as to how this is to be achieved. Amendment 1 does not hinder this objective and any interface issues with Yellagonga Regional Park arising from any proposed development is able to be further considered at the development application stage.
LSP 47 does not attempt to protect land uses that are generally associated with the 'General Rural' zone and expressly states that rural land uses are considered to be inappropriate within the structure plan area. Although 'Commercial' land uses were initially considered not suitable, there is now an obvious desire by the City to facilitate limited commercial activity in the form of showroom uses within the 'Restricted Use' Precinct, which is reflected in Amendment 1. The respondent did not raise traffic impact as an issue in respect of the 5,288 square metres of additional showroom floorspace, but did assert, and the Tribunal agrees, that if the entire centre was converted to showroom use, the potential traffic impact would require further analysis to assess the impact on the structure plan area and the surrounding road network.
The Tribunal considers the proposed amendment to be is in keeping with the intent of LSP 47 and is satisfied that it meets the requirements for a structure plan under DPS 2, however, for consistency within the structure plan it may be appropriate to clarify in cl 7.1, 'Objectives', the appropriateness of commercial land use within the Restricted Use Precinct.

Whether Amendment 1 to LSP 47 is consistent with the existing hierarchy of activity centres provided for in the planning framework and strategies for positions of retailing activities

The respondent submitted that the planning framework establishes a well planned hierarchy of centres where the community need and demand for showroom floorspace in the area can be met and that approval to Amendment 1 would undermine the established and planned hierarchy of centres in the area. It argued that the amendment was inconsistent with the planning framework as the policies advocated that showroom uses should be located and integrated in designated activity centres or in peripheral precincts adjacent to primary and strategic city centres and regional and district town centres, and that 'outofcentre' development containing showrooms, such as Drovers Place, should be curtailed. The respondent identified a number of planned activity centres in close proximity to the subject land that would support the integration of showroom uses; these included Joondalup City Centre (4 kilometres' distance from Drovers Place), Currambine District Centre (6 kilometres' distance), Neerabup (Banksia Grove) District Centre (2 kilometres' distance), and Wanneroo Town Centre (4 kilometres' distance). The respondent was concerned that the additional uses would result in the precinct becoming a carbased bulky goods retailing area, in direct competition with existing and planned activity centres.
The planning experts agreed that Drovers Place is operating as an 'existing type of centre', although it was not an activity centre and had not formally been identified as a centre in the policy framework. Drovers Place was considered to have high visibility and was mainly patronised by customers accessing the centre by car. It was recognised that this type of centre was not contemplated by the planning framework as the hierarchy provided for two tiers, that being 'in centre' and 'edge of centre', and that perhaps an additional third tier, 'out-of-centre', should be considered. Mr Ryan held the view that there was a strong presumption against 'out-of-centre' development and that ad hoc centres were undesirable, but acknowledged that there may be potential for the policies to address circumstances where 'out-of-centre' development may be acceptable. He considered that principles should be established in the State planning policies with implementation occurring at the local level through town planning schemes and local commercial strategies, where sitespecific analysis and a comparative assessment of other centres can be undertaken. Mr Ryan was not able to indicate whether Drovers Place was an acceptable location for 'outofcentre' development as he considered that the level of the strategictype work necessary for him to be able to determine the suitability of Drovers Place had not been undertaken.
Mr Foley also considered that there may be scope for the provision of 'out-of-centre' development as long as it was well planned and properly located with defined uses to ensure that it did not detract from the established and planned activity centres. He referred to the Wanneroo Draft Activity Centres Strategy, acknowledging that it was draft and subject to advertising, and considered this document to be the appropriate mechanism to address 'outofcentre' development within the City. He did not consider Drovers Place to be the best site for such as centre, particularly given the constraints of the site relating to poor accessibility by road, bicycle, public transport and foot and its interface with Yellagonga Regional Park.
Mr Witherby, Mr Turner and Mr Kosova considered Drovers Place to be an established centre that needed to be recognised in the policy framework as providing for the third tier in the hierarchy of centres. They argued that the addition of showroom uses to the existing development would provide additional services to the community but not detrimentally affect, in any significant way, development of other existing and planned centres in the area.
The Wanneroo Draft Activity Centres Strategy recognises that developments in Drovers Place primarily have been a response of larger format retailers requiring bigger floor areas and lower rents than is achievable in defined activity centres, where rents and competition for floorspace are higher. The evidence suggests that current policy is perhaps deficient as there is a failure to recognise the need for locations that support 'outofcentre' development. As a consequence, ad hoc development has resulted and encroachment of showroom uses into industrial areas, such as Wangara, has occurred. There is no denying that Drovers Place currently operates as a centre that is outside of the existing policy framework.
The Tribunal must, of course, have due regard to any State planning policy s 241(1) of the PD Act. Clearly, it must also have regard to other policies applicable to the proposal because they are relevant planning considerations.
The respondent contends that the proposed increase in the area of the subject land, combined with the existing uses, will adversely affect the Wanneroo District Centre and Banksia Grove District Centre. That contention is based in part on the concern as to the range of retail activities permissible within the 'showroom' use under DPS 2. As we have already indicated, we share that concern, but believe that it is possible to reformulate the amendment to eradicate, or at least substantially ameliorate, that concern. The question of whether, having regard to an economic impact assessment, the centre will adversely affect neighbouring centres is discussed below and leads to the conclusion that any impact of the proposed amendment to LSP 47 will be acceptable. Accordingly, we do not accept that cl 4.1.2 of SPP 4.2 provides a basis not to support the proposed amendment.

We accept that cl 4.1.11 of SPP 4.2 suggests that, as a general policy measure, support will not be given to developments not located in centres. The difficulty with the application of that measure, without qualification or exception, is that the potential for any development of existing, but unrecognised, centres like Drovers Place is left uncatered for. In our view, the proper approach to development at Drovers Place is to access the general planning merits of any proposal having regard to the existing and approved uses on the site, and bearing in mind the important policy of focussing retail development in planned centres. The focus on planned centres does not absolutely preclude development on existing 'outofcentre' retail sites. It does, however, require consideration of whether the achievement, and viability, of existing and planned incentre retail activities is threatened. For reasons we have explained, we do not consider that the proposal, if the range of activities within the showroom definition under DPS 2 is limited, will adversely impact on existing or planned centres to an unacceptable degree.
Reliance was also placed by the respondent on Draft Activity Centre SPP. Views of the experts differed on the weight to be accorded that document, given that it is only at the public comment stage. In our view, however, the Draft Activity Centre SPP does not provide a basis to refuse the proposed amendment. Clause 5.1 suggests that rezoning or development proposals which are 'deemed likely to undermine the established or planned activity centre hierarchy' should not be supported. For reasons already explained, we do not consider that the current proposal would have that effect. Clause 6.1 provides for local planning strategies to complement any Draft Activity Centres SPP by:
•providing sufficient development opportunities to enable a diverse supply of commercial floorspace to meet the projected needs of the wider community;
•catering for a full range of needs for shopping; and
•mitigating the potential for an over concentration of shopping floorspace in large centres to occur at the expense of a more equitable level of service to communities.
Several of the experts expressed the view that the amendment to LSP 47 would have that effect. The support for the present proposal by the local authority, and Mr Kosova's evidence concerning the local government's approach to planning for the site, appear consistent with that approach.
The broad framework of the Network City Strategy, with the uncertainty as to its treatment of the subject site, provides little guidance to the proper outcome of this application.
As to the local policies, we do not consider them of great assistance. The Wanneroo Centres Policy, which has not been endorsed by the respondent, virtually ignores the Drovers Place site. In any event, it is proposed to be replaced by the Wanneroo Draft Activity Centres Strategy. That strategy is still in the process of adoption. Views differed as to the weight which should be accorded to it. Mr Kosova, the director of planning and sustainability at the City of Wanneroo said in relation to the Wanneroo Draft Activity Centres Strategy:
10.1As stated above, the review of the structure planning for Drovers Place and relative lack of available areas within established or identified centres for bulky goods and other showroom uses has underlined the need for the new Centres Strategy to be revised to be more flexible in terms of identifying areas for suitable out-of-centre development. The City Administration will therefore be pursuing a more flexible and pragmatic approach to outofcentre development when finalising the Draft Activity Centres Strategy and intends to modify the draft Policy provisions in relation to out-of-centre development
10.2I consider that the location of the Restricted Use area and easy vehicle accessibility favour the use of the Restricted Use area for bulky goods and similar showroom uses where pedestrian and cycle access is unnecessary, particularly as the area will not function as a centre in terms of the City's Centres Strategy. The criteria concerning pedestrian and cyclist accessibility is simply not applicable in terms of the Draft Centres Strategy.
Drovers Place is not a regional or district level centre and does not undermine the planned and existing activity centres hierarchy as identified in the planning framework. However, the additional uses will further reinforce the centre as an 'outofcentre' development which will need to be reflected in local planning strategies.
In our view, the proposed amendment is not inconsistent with the existing and planned hierarchy of activity centres provided for in planning policies or strategies, provided our concerns as to conversion of the whole site to showroom use is dealt with.

Whether Amendment No 1 to LSP 47 will adversely affect neighbouring activity centres

The respondent contended that a significant increase in the area of the subject land being used for showroom purposes, together with the existing growers mart and café uses, will adversely affect Wanneroo Town Centre and Banksia Grove District Centre. The respondent considered that the range of uses permissible within the 'showroom' use has the potential to impact on the expansion and development of these centres.
Ms Iverach considered the current operations at Drovers Place to be in competition with supermarkets and specialty shops within the district as it captures expenditure that would otherwise be available to those centres if Drovers Place fresh foods retailers did not exist. She was of the view that the combination of food retailing and showrooms capable of being occupied by other shop/retail uses will transform Drovers Place into a centre that will provide strong competition with Banksia Grove and Wanneroo Town Centre. Ms Iverach contended that the existing and proposed developments in the planned Currambine and Banksia Grove District Centres will satisfy demand in the locality until after 2016 and was concerned that the showroom use at Banksia Grove may never eventuate because the potential would be taken up by Drovers Place.
Mr Haratsis considered the current activities at Drovers Place to be complementary to supermarket and conveniencebased retailing and did not expect the inclusion of showroom uses to increase the competitiveness of the growers mart. He prepared an Economic Impact Assessment (EIA) to show the impacts of the of the proposed expansion at Drovers Place, that being the 5,288 square metres of showroom floorspace, on existing and proposed activity centres in the locality. Mr Haratsis, in his witness statement, identified key points emerging from the analysis, which included:
•… The Dovers Place centre exists in one of the fastest growing regions of WA and operates in a broad trade catchment. The population with the Primary Trade Area (PTA) is expected to grow at about 3.0% per annum through to 2031, while the Secondary Trade Area (STA) is expected to grow at 3.5% per annum over the same period. This is well in excess of the 1.8% projected for WA and demonstrates the significant growth expected within the trade area.
•By 2012 (the estimated first full year of the development) the population in the Main Trade Area (MTA) will have increased by about 11,000 persons, 51,000 persons by 2021 and 112,000 persons by 2031 to reach about 216,000.
•…
•The likely trading impacts upon the competitive bulky goods retail network are summarised as follows, with turnover impacts measured as a proportion of the total bulky goods component at each centres.
•Joondalup (Primary Centre) = - 7%
•Wanneroo (Regional Centre) = - 6%
•Clarkson Precinct = -3%
•Joondalup (Joondalup Gate) = -3%
•Joondalup (Gateway Centre) = -2%
He submitted that the impacts were insignificant, with the highest individual impact at 7%, which he stated as being well below general industry accepted rule that an impact of less than levels of 15% of turnover is acceptable before viability of the affected centres is threatened.
There was a fundamentally different approach between Ms Iverach and Mr Haratsis as to the treatment of the existing establishment at Drovers Place for the purposes of an economic impact assessment.
Mr Haratsis undertook his assessment on the basis that Drovers Place, in its current form, was in existence, and already draws expenditure within the catchment area. He, therefore, examined the likely effect of the additional uses and floorspace at Drovers Place on the existing and planned retail developments within the relevant catchment areas.
Ms Iverach considered that the proper assessment to be made is as to the whole of the existing and proposed floorspace and usage on the other existing and planned retail development in the relevant catchment areas. She considered that Mr Haratsis' approach was appropriate for commercial retail analysis purposes, but not for planning purposes. She considered that the existing expenditure in Drovers Place should be assumed not to exist because it is not a planned centre.
We prefer the approach taken by Mr Haratsis. It takes account of reality. SPP 4.2 suggests that support will not be given to proposals which undermine the established or planned hierarchy of centres or might adversely affect existing and planned centres. Drovers Place is an existing centre, albeit not recognised in most of the planning policies. The existing operation of Drovers Place will continue regardless of the outcome of these proceedings. To simply pretend that it does not exist, simply because planning policies ignore it, is to proceed on the basis of a flawed assumption. To the extent that planning proceeds on a basis that it ignores the reality of Drovers Place is likely to result in inaccurate and flawed conclusions.
In relation to the Banksia Grove centre, Mr Haratsis asserted that as the first stage of the centre was not expected to yield any showroom floorspace, Drovers Place would not have any impact. Ms Iverach agreed that Banksia Grove first stage involved no proposed showroom space. As to the subsequent stages, which entails 5,300 square metres of showroom floorspace by the end of 2016 and 3,600 square metres to be delivered by 2021, Mr Haratsis submitted that the analysis shows that there was more than enough growth in the catchment to support both developments proceeding (refer to Figure 12 Retail Floor Space Demand of Main Trade Area of EIA). It was his estimation that any impacts arising from the proposed development would be dissipated in 18 to 24 months.
Ms Iverach did not accept the figures generated from the analysis, as she considered there to be a number of errors with the data used to generate the trade impact figures. Firstly, she contended that the population forecast used to calculate the retail expenditure pool was about 8% too high, secondly, that the retail turnover density figure should have been around $2,000 $2,500 square metres rather than $4,500 square metres resulting in a higher floorspace and thirdly, that the floorspace supply data was significantly lower than the respondent's survey data. In her estimation, the trade impact figures would be higher if the data were adjusted to reflect her concerns, possibly above 10%.
The Tribunal struggled with some of the criticisms advanced by Ms Iverach, particularly in relation to retail turnover densities. In order to work out future retail demand, Mr Haratsis reviewed population projections and Australian Bureau of Statistics data as to expected retail expenditure per head of population. Ms Iverach accepted that approach. Mr Haratsis then applied an assessed retail turnover figure of $4,500 per square metre of floorspace, and divided that figure into the figure assessed as future retail demand, to calculate future requirements for floorspace.
Ms Iverach contended that the retail turnover figure should be closer to $2,500 per square metre. If that figure is applied to Mr Haratsis' calculation, then necessarily the future floorspace demands must be greater, because the same figure for future retail demand is being divided by a smaller number. As a result, the argument that the proposed floorspace at Drovers Place would contribute towards satisfaction of that demand is strengthened.
Ms Iverach refused to accept the logic of that proposition, contending that there was confusion between supply and demand for floorspace. We do not agree. In our view, if Mr Haratsis has overestimated the turnover generated by a square metre of floorspace, his conclusion that existing and planned centres will not meet that demand is reinforced.
However, even if the Tribunal accepted Ms Iverach's position, her best guess estimation puts the trade impact figures at 'possibly above 10%', which would still be within general industry acceptable levels of 15% referred to by Mr Haratsis. Ms Iverach was aware of the '15% level' but held the view that a more cautious approach should be adopted when considering impact levels and considered that a lesser figure of between 10 to 15% should be applied and, depending on the type of centre, the figure may even be less. She was particularly concerned about the percentage impact on the Wanneroo Town Centre as she considered this centre to be more fragile, given its historical and physical context. Ms Iverach readily acknowledged that she has not undertaken her own economic impact assessment. Given the reservations we have as to her criticisms of Mr Haratsis' methodology, and given that she has had no opportunity to undertake her own assessment, we are not inclined to rely on Ms Iverach's estimates of possible economic impact, nor to accept her criticisms of Mr Haratsis' analysis.
Mr Witherby concurred with the material contained in the EIA relating to percentage impacts and told the Tribunal that in his experience less than 10% is generally unproblematic, between 10 and 15% caution should be taken and above 15% requires a strong case to be made. He emphasised that these figure were average figures and in some cases the nature of the centre would need to be considered and a lower figure applied. However, in areas where there is strong growth, such as the catchment for Drovers Place, a higher than 10% level would not be problematic because the growth and demand for floorspace is such that any deficit in terms of economic impact on turnover is made up very rapidly.
The Tribunal preferred the evidence of Mr Haratsis and Mr Witherby for the above reasons, and was satisfied that the proposed expansion of Drovers Place would not have any substantial impact on the Wanneroo Town Centre and Banksia Grove District Centre, given likely trade impacts and the anticipated growth in demand in the catchment area as predicted in Figure 12 of the EIA.
The respondent's case rested heavily on the proposition that showroom development should be contained to designated centres. The applicants' experts argued that there is a necessity to provide different price points to satisfy public need, and therefore to have space available for showroom uses in both high and low rental areas. Ms Iverach accepted that there is a place for both high rent and low rent locations, but considered that both could be accommodated in planned centres. Mr Witherby summed up his opinion on the question in the following way:
I think the question is whether a location such as Drovers Place would offer a rental advantage over a large planned activity centre, and in my view even if a large planned activity centre did make provision, even substantial provision, for showroom uses, it would still nevertheless attract a higher rental than an area such as Drovers Place, such as to exclude a number of I think the term was used, you know, shed/factory type retail operations. … but what I’m seeing in the case of Drovers Place is it is a centre; it’s not an activity centre; it’s a limited centre that serves a distinctly identifiable market niche that is not being met by planned centres elsewhere within the corridor, and to my mind that really goes to the heart of saying, well, at the end of the day, will this be improving a level of service to the community or will it be to the detriment to the level of service to the community? And, you know, I would need to form a view, which I don’t form, that Drovers Place had an impact sufficient to genuinely threaten the viability of alternative centres before I could form a view that there was community detriment associated with this development. So to my mind the question is not whether it has any impact and there has been a lot of discussion about that but whether that impact would be sufficient as to result in an overall diminution of the level of services available to the community at large; that any loss was not more than made good by the new development. Now, certainly from the economic evidence that I have seen and my own experience in this area, I would conclude that the impacts are modest, that they would not threaten the viability of any alternative centre, whilst at the same time providing the opportunity for a type of consumer need that is not currently being met within the corridor. I’d like to see it included in policy and this type of centre specifically dealt with by policy because it's a real community need.
We agree with Mr Witherby's observations.

Whether the Amendment No 1 to LSP 47 will create a precedent for further amendments to LSP 47

The respondent argued that if this amendment was approved, there would arguably be pressure for other amendments to be contemplated in LSP 47 area, in particular Lot 1 and Lot 132 immediately south of the subject land.
The City is currently advertising SP 80, which essentially involves a review of LSP 47, and the advancement of this structure plan will provide guidance for the coordinated development of the area. It is the Tribunal's understanding that SP 80 entertains the expansion of the 'Restricted Business' Precinct to incorporate Lot 1 and Lot 132, and as such, will be subject to consideration in accordance with Pt 9 of DPS 2. Clearly, Amendment No 1 does not establish a precedent in the determination of whether the 'Special Residential' Precinct should be reduced in size to provide for an expansion of business uses in this area as Amendment 1 is only considering the permissibility of land uses within the existing 'Restricted Use' Precinct.

Conclusion

In having regard to the above matters, the Tribunal is prepared to adopt a modified Amendment 1 that restricts the size and/or location of showroom floorspace on the subject land and provides some limits on the retail activities that would be permitted under the showroom use. Given this finding, the Tribunal considers it appropriate that the parties have the opportunity to discuss how this can best be achieved and, if possible, agree an outcome. If this is not possible, the Tribunal will require submissions on the matter to determine the form of the amendment.

Orders

The matter is listed for directions at 11 am on 30 April 2010 in order to make directions as to the process of conferral in relation to an amendment to the wording of Amendment 1.

I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT