Govardhan and Town of Vincent
[2008] WASAT 196
•26 AUGUST 2008
GOVARDHAN and TOWN OF VINCENT [2008] WASAT 196
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 196 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:12/2008 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 26/08/08 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | GOVINDA GOVARDHAN TOWN OF VINCENT |
Catchwords: | Town planning Application for change of use from recreational facility (pool hall) to tavern Orderly and proper planning Preservation of the amenity of the locality Small bar proposal Car parking shortfall Cash-in-lieu Precedent |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004 (WA), s 31 Town of Vincent Town Planning Scheme No 1, cl 6, cl 10, cl 13, cl 15, cl 37, cl 38, cl 47, Sch 1 |
Case References: | Aspen Pty Ltd v State Planning Commission (unreported; Appeal No 13 of 1988, 21 October 1988) Cipriano v City of Perth (unreported, TPAT, Appeal No 20 of 1979, 21 January 1980) Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR (WA) 65 |
Orders | For the foregoing reasons the Tribunal orders that the application for review is dismissed. |
Summary | The application for review was lodged against a decision of the Town of Vincent to refuse an application for a change of use from "Recreation Facility" (pool hall) to "Tavern" at No 560 Beaufort Street, Mount Lawley.,Following a mediation process, and reconsideration by the Town of a revised "Tavern" proposal to that of a "Small Bar", the matter was again refused.,The State Administrative Tribunal examined the respective positions of the parties, the background to the proposal, the relevant legislative and policy provisions and matters of orderly and proper planning, amenity, precedent and car parking shortfall.,The State Administrative Tribunal determined that, in the particular circumstances of this case, it would be inconsistent with orderly and proper planning for a private development, which is unable to meet any of its parking obligations on the subject land, to monopolise presently available public car parking spaces.,Also, that a cash-in-lieu contribution would do little to alleviate an immediate car parking demand emanating from the development with a consequential effect on the amenity of the adjacent residential locality; particularly during the evening and late night hours.,The application for review was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : GOVARDHAN and TOWN OF VINCENT [2008] WASAT 196 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 26 AUGUST 2008 FILE NO/S : DR 12 of 2008 BETWEEN : GOVINDA GOVARDHAN
- Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Application for change of use from recreational facility (pool hall) to tavern - Orderly and proper planning - Preservation of the amenity of the locality - Small bar proposal - Car parking shortfall - Cash-in-lieu - Precedent
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
Town of Vincent Town Planning Scheme No 1, cl 6, cl 10, cl 13, cl 15, cl 37, cl 38, cl 47, Sch 1
(Page 2)
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (unreported; Appeal No 13 of 1988, 21 October 1988)
Cipriano v City of Perth (unreported, TPAT, Appeal No 20 of 1979, 21 January 1980)
Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR (WA) 65
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Town of Vincent to refuse an application for a change of use from "Recreation Facility" (pool hall) to "Tavern" at No 560 Beaufort Street, Mount Lawley.
2 Following a mediation process, and reconsideration by the Town of a revised "Tavern" proposal to that of a "Small Bar", the matter was again refused.
3 The State Administrative Tribunal examined the respective positions of the parties, the background to the proposal, the relevant legislative and policy provisions and matters of orderly and proper planning, amenity, precedent and car parking shortfall.
4 The State Administrative Tribunal determined that, in the particular circumstances of this case, it would be inconsistent with orderly and proper planning for a private development, which is unable to meet any of its parking obligations on the subject land, to monopolise presently available public car parking spaces.
5 Also, that a cash-in-lieu contribution would do little to alleviate an immediate car parking demand emanating from the development with a consequential effect on the amenity of the adjacent residential locality; particularly during the evening and late night hours.
6 The application for review was dismissed.
Introduction
7 The application for review, dated 15 January 2008, was lodged by Mr Terry Tyzack, a qualified architect, of Terry Tyzack Consultancy on behalf of Mr Govinda Govardhan (applicant) against a decision of the Town of Vincent (Town or respondent) on 18 December 2007 to refuse an application for change of use from "Recreational Facility" (pool hall) to "Tavern" at No 560 Beaufort Street, Mount Lawley.
8 The application for review was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
9 The reasons for refusal by the respondent were:
(Page 4)
- (i) the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality;
(ii) the non-compliance with the requirements of the Town's policies relating to parking and access (Policy No 3.7.1), the Mount Lawley Centre Precinct (Policy No 3.1.11) and Waste Management (Policy No 2.2.18); and
(iii) consideration of the objections received.
10 Following a mediation process under the auspices of the State Administrative Tribunal, and reconsideration of a revised proposal to "Small Bar" by the respondent, the matter was refused on 25 March 2008 for broadly similar reasons to those outlined in [9] above.
Subject land
11 The subject land is located at No 560 (Lot 4 on Plan 692) Beaufort Street, Mount Lawley on Certificate of Title Volume 1915, Folio 813.
12 The property, which is located on the east side of Beaufort Street between Clarence Street to the north and Harold Street to the south, has an area of 458.54 square metres. It is rectangular in shape with a frontage to Beaufort Street and the rear boundary of 12.280 metres and side boundaries of 37.340 metres.
13 The subject land, which currently contains an unoccupied building constructed to all four site boundaries, is accessed by a public right of way at the rear. It forms part of a commercial strip of properties within the Town between Walcott Street to the north and St Albans Avenue to the south.
14 Apart from the commercial strip, the overall surrounding land use is Residential, with a density coding of R50 and R80.
Legislative and policy framework
15 The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Commercial" in the Town of Vincent Town Planning Scheme No 1 (Scheme or TPS 1).
16 Other documents of relevance include:
(Page 5)
- (a) Town of Vincent Planning and Building Policy Manual - Mount Lawley Centre Precinct - Scheme Map 11 (Policy 3.1.11); and
(b) Town of Vincent Planning and Building Policy Manual - Parking and Access (Policy 3.7.1).
Respondent's position
17 The position of the respondent is outlined in its Statement of Issues, Facts and Contentions. The respondent contends:
(a) Beaufort Street is a busy commuter route for both public and private vehicles with parking restrictions during certain hours of the day. As the area has one of the highest rates of infringement notices issued in relation to car parking it is important that the Town manage future land uses in the locality to ensure that the amenity of nearby residential areas is not unduly impacted by parking spillover, and that visitors are catered for by acceptable levels of available parking.
(b) The proposed "Small Bar" development gives rise to a parking shortfall and this, in addition to the generous previously approved on-site shortfall (14.45 car bays after adjustment factors), is counterproductive to the overall intent of Policy 3.7.1 relating to parking and access, and will have an undue impact on the amenity of the immediate and surrounding area.
(c) The respondent contests the applicant's argument that the Town has been inconsistent in its approach to other proposals of a similar scale and nature along Beaufort Street. It is not appropriate to justify an approval (as the applicant has done) based on previous decisions, but rather to consider existing land uses along Beaufort Street and how the subject application will contribute to the overall situation.
(d) The addition of another "Small Bar" and/or "Tavern" with no car parking provided onsite will increase the demand for parking in the immediate area and, at this time, an approval would compromise the Town's pursuit of orderly and proper planning and the preservation of the amenities of the locality.
Applicant's position
18 The position of the applicant is outlined in its Statement of Issues, Facts and Contentions in reply. The applicant contends:
(a) The high rates of parking infringements issued in the section of Beaufort Street near the subject land are more a reflection of the high level of enforcement during the peak periods than to a lack of adequate parking in the area. Also, parking restrictions do not apply after 5.30 pm.
(b) The unrestricted availability of parallel parking in Beaufort Street during evening hours, coupled with the high level of bus services, will not cause the amenity of nearby residential areas to be unduly impacted.
(c) As the whole of the site is occupied by an existing building the provision of on-site parking is not a practical or viable option.
(d) In assessing the impact of the car parking shortfall (10.11 car bays) the Town should have given more weight to the following:
(i) The residents in streets surrounding the subject land have the protection of "resident exempt" parking permit zones which generally operate between 2 pm and 11 pm.
(ii) A generous kerbside public parking area is located on the north side of Harold Street directly adjacent to the Forrest Park Reserve which is only 400 metres from the subject land. At 9 pm on Saturday 17 May 2008, over 30 bays were vacant.
(e) The provisions of cl 11 in Policy 3.7.1 allow the Town a discretion to seek a cash-in-lieu contribution for a car parking shortfall. In this particular case, it would provide a practical and equitable outcome.
(Page 7)
- (f) The respondent's argument that the development is not consistent with orderly and proper planning or the preservation of the amenity of the locality cannot be justified because:
(i) In exercising its discretion to approve extensions to the nearby Must Winebar, it was argued:
the proposal will complement the existing uses along Beaufort Street and add vibrancy to the area.
(ii) The modified proposal to a "Small Bar" is consistent with the Department of Racing, Gaming and Liquor's philosophy underpinning the introduction of a "Small Bar" licence:
Regardless of the style or theme, these small bars are intended to provide an intimate setting that people can visit for tapas, a pre-dinner drink, or a late night supper.
(iii) The modified proposal from a "Tavern" to a "Small Bar" will mitigate any potential adverse impact on the amenity of nearby residents; particularly those who lodged objections to the original "Tavern" proposal.
19 The principal planning issues are:
(a) Would the proposed change of use from Recreational Facility (pool hall) to "Small Bar" be contrary to orderly and proper planning?
(b) Would the proposed change of use from Recreational Facility (pool hall) to "Small Bar" be likely to lead to a reduction in the current level of amenity in the locality?
Assessment of proposal
20 The background to this matter was outlined in a report to an Ordinary Meeting of Council on 25 March 2008. The report advised:
(a) On 16 November 1992, the City of Perth (the then responsible local government) approved a change of use from "retail (furniture store)" to "amusement centre".
- A total of 34 car parking bays were required (subsequently reduced to 20 bays) even though it was not possible to provide any on-site car parking due to the building occupying the total site area.
- (b) On 3 December 1993, there was a request to the City to increase the maximum number of occupants of the place to 150 persons. The applicant was advised that the maximum number of occupants of the place should be 50 persons due to insufficient parking on the site.
(c) An application for approval to commence development for a "Tavern", dated 18 July 2007, was submitted to the Town on 28 August 2007 by Hospitality Total Services Pty Ltd on behalf of the owners Emilio and Maria Daurizo and Guiseppe and Manuela Gimondo. The estimated cost of the development was $100,000.
(d) At an Ordinary Meeting of Council on 20 November 2007, it was resolved that the item be deferred for further investigation.
(e) At an Ordinary Meeting of Council on 18 December 2007, the application was refused.
(f) On 15 January 2008, an application for review was lodged with the State Administrative Tribunal.
(g) At a directions hearing on 30 January 2008, orders were made requiring the parties to:
Further discuss with each other on a without prejudice basis the modified proposal (dealing with reduced patronage, a change of description of bar use, and possible dual use of the premises) outlined in discussion in the Tribunal on 30 January 2008.
(h) On 7 February 2008, a meeting was held between the Town's planning officers and the applicant and his consultant architect regarding the Tribunal's Order of 30 January 2008.
(i) A mediation was conducted at the Tribunal on 13 February with the parties.
(Page 9)
- (j) On 19 February 2008, the Town received Orders from the Tribunal inviting it to reconsider its decision of 18 December 2007 under the provisions of s 31 of the State Administrative Tribunal Act 2004 (WA).
(k) The modified proposal was refused by the Acting Chief Executive Officer on 13 March 2008.
(l) At a directions hearing at the Tribunal on 17 March 2008, the Town was advised that, as the original refusal was made by Council, the modified proposal should not be determined under delegated authority.
(m) The matter was referred to the Ordinary Meeting of Council on 25 March 2008 and refused.
(n) At a directions hearing on 9 April 2008, it was ordered that the matter be determined wholly on the documents.
21 In an attachment to the application for review, it was explained that on 3 December 2007, the applicant met with planning officers from the Town and indicated a willingness to reduce the public floor area of the tavern from 262 square metres to 200 square metres and to reduce the maximum number of people from 200 to 172. These figures were further reduced under the "Small Bar" proposal to 128 square metres of public floor area with a maximum number of 120 patrons.
Legislative and policy requirements
Town of Vincent Town Planning Scheme No 1
22 Under cl 6, the objectives and intentions include:
(3) The general objectives of this Scheme are:-
…
(d) to promote the development of a sense of local community and recognise the right of the community to participate in the evolution of localities;
(e) to promote and safeguard the economic well-being and functions of the Town;
…
(Page 10)
23 The concept of planning precincts is outlined under cl 10 and for each precinct there is a precinct planning policy. The subject land falls within the Mount Lawley Centre Precinct under Policy 11.
24 Under cl 13, there is a zone table which contains a list of uses and their permissibility within the various zones. A "Tavern" is shown with the "SA" symbol in the commercial zone. The "SA" symbol means:
… that the use is not permitted unless the Council has exercised its discretion and has granted planning approval after giving special notice in accordance with Clause 37.
25 Although there is no "Small Bar" use class in the zoning table, it appears that Council determined that the proposed use may be consistent with the objectives and purpose of the zone and followed the "SA" procedure as provided for in cl 15 (unlisted uses).
26 Under cl 37 (advertising procedures), it advises:
(1) Where an application involves an unlisted use or a use which is designated with the symbol "SA" in the cross reference to that zone, the Council is to direct the applicant to advertise the application in any manner that it considers to be appropriate.
27 This process was followed in the matter under review.
28 Under cl 38 (determination of application – general provisions), it advises:
(5) Without limiting the scope of the Council's discretion to determine an application … the Council is to have regard to -
…
(b) any relevant planning policy;
…
(f) any submission accompanying or related to the application;
(g) the orderly and proper planning of the locality;
(h) the conservation of the amenities of the locality;
…
(Page 11)
- …
(2) In preparing a draft planning policy, the Council is to have regard to -
…
(b) the orderly and proper planning of the locality;
(c) the conservation of the amenities of the locality;
…
Mount Lawley Centre Precinct Policy No 3.1.11
31 The subject land falls within a precinct which is essentially focussed on those lots fronting Beaufort Street south from Walcott Street to St Albans Avenue.
32 Under cl 1 (General), the Policy states:
… The compatibility of all non-residential uses with any adjacent residential uses is to be ensured.
…
The re-use of buildings contributing to the character of the locality is to be encouraged and new development is to be complementary.
…
In all cases, minimising the impact of development on adjacent residential properties through appropriate site layout and design is to be a priority …
33 Under cl 3 (Commercial Area), the Policy states:
…
Careful control is to be exercised over the nature of commercial uses and the design and site layout of development to ensure levels of noise, visual amenity and privacy are appropriate to any adjacent residences.
Adequate car parking is to be provided on-site to ensure that unreasonable commercial parking does not spill into adjacent residential streets.
(Page 12)
- …
Where it is considered that a particular development could have an impact on the amenity of the surrounding area (mainly adjacent residential development), it is to be subject to the advertising procedure set down in Town of Vincent Town Planning Scheme No 1 and Town of Vincent Policy Manual.
34 It is clear from the wording of the Policy that although new development is to be encouraged within the Precinct, it is to be compatible with adjacent residential development. Also, that adequate car parking should be provided on-site.
Parking and Access Policy No 3.7.1
35 The Policy Statement advises:
1) On-site parking is to be provided at a rate that adequately meets the demand generated by a particular use or activity as determined by the Town of Vincent.
…
Public parking facilities should be provided where there is a demonstrated need or where on-site parking cannot be provided.
1 space per 3.8 metres of public floor area or 1 space per 4.5 persons of maximum number of persons approved for the site, whichever is the greater.
37 In the Notes to cl 7, it explains:
…
iii) Where the number of bays proposed for a development is less than the number required, the Town of Vincent may approve this parking situation in terms of the provisions in this Policy relating to Reciprocal Parking, Combined Parking, Shortfall Parking and/or Cash-in-Lieu.
…
vi) 'Public Floor Area' is the area at the premises used as bars, lounges, dining areas, function areas, beer gardens and areas predominantly
- used for games, and the like, and excludes areas occupied by lifts, stairways, ramps, escalators, passages, hallways, corridors, lobbies, fixtures, kitchens, stages, sanitary areas, and staff areas including those staff areas behind counters.
- …
38 The matter of "Shortfall Parking" is addressed under cl 10 in this way:
The car parking requirement may be partly or wholly reduced by the Town of Vincent through the application of adjustment factors … reflecting particular site and design factors. Such factors are to be justified by the Applicant.
39 In the case of a proposed development that is within 400 metres of a bus stop/station (as applies in this case), the adjustment factor is 0.85, and, if within 400 metres of one or more existing public car parking place(s) within excess of a total of 75 car parking spaces (as apparently applies in this case), the adjustment factor is again 0.85. The overall adjustment factor was then calculated as 0.7225 (0.85 x 0.85).
40 Again, under cl 10, the Policy states:
Alternative Transport Use:
A reduction in the number of parking bays required may be considered by the Council where the applicant/developer provides evidence that alternative transport modes will be encouraged and used by employees, clients and/or customers of the subject development. This evidence should be presented in the form of a detached substantiated report, and include the implementation of initiatives such as discounted public transport tickets, high occupancy vehicle car bays (to encourage car pooling), a shuttle or similar service, free/hire bicycles, or similar schemes. The number of car bays discounted will be at the discretion of the Council.
41 The cash-in-lieu provisions are covered in cl 11:
Cash-in-lieu of parking is to be considered where non-residential developments have a shortfall of parking according to the requirements outlined in the Land Use Parking Requirement Table, [(]as modified according to Clause 10). The Town may accept money for this shortfall to provide and/or upgrade parking bays in a nearby existing or proposed public parking facility, including on-street parking where appropriate.
This policy provision is not to be seen to be replacing the developer's responsibility to provide on-site parking, but rather as a mechanism to enable otherwise desirable developments, for which the full amount of parking cannot be provided on site, to proceed. The provision of an adequate supply of parking is the intent of this provision and, as such, the following matters apply:
(Page 14)
- i) cash-in-lieu provisions are only to be permitted in localities where the Town already provides off-street public car parking which has spare capacity, or the Town is proposing to provide or is able to provide a public car park (including enhanced or additional on-street car parking where appropriate) in the near future, within 400 metres of the subject development;
ii) cash-in-lieu contributions may comprise all or part of the shortfall in on-site parking proposed for a development;
iii) the contribution rate per bay is to be based on the estimated cost of the construction of the bay and any other related costs such as for access ways, manoeuvring areas, landscape areas, landscaping, lighting etc;
iv) in the case of any other development (including a change of use), the shortfall is to be calculated as the difference between the number of bays proposed and the number of bays required by the Land Use Parking Requirement Table, [(]as modified according to Clause 10), and reduced by an amount equal to any existing shortfall similarly calculated;
…
viii) any parking facilities for which a contribution has been provided are to be constructed in the area where the development will generate the need for additional parking;
…
xi) in the event that the Town does not utilise the cash[-]in[-]lieu funds for additional parking within ten (10) years of receipt of the full amount, the Town shall refund the moneys to the applicant; and
xii) at the discretion of the Town, any applicant that has contributed to the cash[-]in[-]lieu Trust Fund may apply for parking passes for the free and unlimited use of car spaces within the car park in which the contribution has been used for. The passes are to be allocated to employees only, and the number issued will be dependent on the amount of moneys contributed. As a general guide, a shortfall of three (3) car bays equals the provision of one (1) pass.
42 The minimum parking requirements are covered in cl 22:
The Council may, in the pursuit or orderly and proper planning and the preservation of the amenities of the locality, refuse a proposed development where inadequate on-site parking has been provided.
(Page 15)
- This provision is to ensure consistency when determining whether to approve an application with a parking shortfall. The additional shortfall will be required to be met using the cash[-]in[-]lieu contribution provision.
43 In determining whether the proposed development should be refused on car parking grounds, the following percentages should be used as a guide:
i) If the total parking requirement for a development (after adjustment factors have been taken into account) is 10 bays or less, cash[-]in[-]lieu may be provided for any shortfall.
ii) If the total requirement (after adjustment factors have been taken into account) is [sic] between 11 – 40 bays, a minimum of 15 per cent of the required bays is to be provided.
…
It should be noted that a proposed development may still be refused on the basis of non-compliance with car parking requirements, regardless of whether these provisions have been met.
The matter of orderly and proper planning
44 This matter is best addressed by assessing the proposal against the relevant provisions of both the statutory and policy documents.
45 In this particular case, that requires an assessment of the "Small Bar" proposal against the relevant provisions of TPS 1, Policy 3.1.11 and Policy 3.7.1.
46 As noted elsewhere in this review, at [28], there is flexibility available to the respondent to use its discretion under TPS 1 to determine a development application having regard to relevant planning considerations. However, the respondent is not necessarily constrained by these considerations, and neither is the Tribunal.
47 Again, in the case of the policy documents, there is a degree of flexibility built into them. For instance, cash-in-lieu contributions can be required for part or all of an on-site parking shortfall.
The matter of amenity
48 Under TPS 1, "amenity" is defined in Sch 1 as:
[meaning] all those factors which combine to form the character of the area to residents and passers by and shall include the present and likely future amenity.
(Page 16)
49 However, in Cipriano v City of Perth (unreported, TPAT, Appeal No 20 of 1979, 21 January 1980) amenity is defined at page 5 as being:
The sum of the expectations of the residents concerning the quality of their residential environment as determined by the character of an area, its appearance and land uses.
50 The definition relies on the views of residents as to the quality of their environment and their individual expectations into the future.
51 In Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR (WA) 65, Mr Malcolm QC (as he was then) defined "amenity" from a different perspective:
In my opinion the likelihood of a proposed activity causing a nuisance is one way of testing whether or not a given activity will have a detrimental effect on the amenity of the locality.
52 This definition accepts the existing amenity as given, good or bad, and the likely consequences of a proposed development on that amenity as seen by individuals within the locality.
53 In this particular case, submissions were lodged with the respondent from the public in connection with the original "Tavern" proposal. Of the seven submissions, one supported the proposal in principle and six objected to it.
54 The reasons for objection ranged from a concern that the development would give rise to further car parking demand in an already congested area and an increase in noise, antisocial behaviour and loitering. There was also the view that there were already enough "pub" type venues in the area.
55 The difficulty the Tribunal has with the submissions is that, although they may remain valid, they were not lodged in relation to the modified "Small Bar" proposal.
The matter of precedent
56 In the applicant's Statement of Issues, Facts and Contentions in reply, the following examples of precedent are cited:
(a) An existing approved tavern (The Flying Scotsman) at Nos 639 - 643 (Lot 1) Beaufort Street (corner Grosvenor Road), Mount Lawley, received an approval on 12 April 2005 for alterations and the addition of an upper level balcony alfresco area of 70 square metres. No additional on-site
- parking or cash-in-lieu was required of the applicant despite the fact that the existing tavern use had a previously approved on-site parking shortfall of 68 car parking bays.
- (b) An existing approved tavern (Must Winebar) at No 519 (Lot 23) Beaufort Street, Mount Lawley, received an approval on 26 September 2006 for an additional 32 patrons and 27 square metres of public floor space. The net resultant parking shortfall was 5.06 car bays after all adjustment factors and, in accordance with Policy 3.7.1, 2.4 car parking bays should have been provided on-site.
57 In this particular case, the Town accepted a cash-in-lieu contribution for the on-site parking requirement.
58 In relation to the nearby Must Winebar, it is clear from the Minutes of the Ordinary Council Meeting of 26 September 2006 that the recommendation from the officers for the proposed alterations and additions was for refusal on broadly similar grounds to the recent refusal for the "Small Bar" on the subject land.
59 However, the decision of Council in that instance was to approve the proposal subject to a number of conditions, including a cash-in-lieu contribution of $13,156 for the parking shortfall of 5.06 car bays ($2,600 per bay).
60 In the respondent's Statement of Issues, Facts and Contentions, it is argued in relation to the matter under review:
It is not considered appropriate to justify an approval of the subject application on the basis that the Town has approved other similar developments in the same area in the past. The Town must consider the existing land uses along Beaufort Street and how the subject application will contribute to the situation …
61 In the view of the Tribunal, the matter of precedent was correctly addressed in Aspen Pty Ltd v State Planning Commission (unreported; Appeal No 13 of 1988, 21 October 1988) (Aspen) wherein it was expressed that precedent is not to be treated as a "stand alone" argument and is but one factor to be taken into account in reaching a decision.
62 The approach adopted in Aspen will be continued in this review.
(Page 18)
The matter of the car parking shortfall
63 The method of calculating a car parking shortfall is outlined in Policy 3.7.1. It is shown as:
Shortfall Car Parking Calculation – Table 1 |
|
|
|
|
|
64 The calculations for the "Small Bar" proposal are outlined in the Minutes of the Ordinary Meeting of Council dated 25 March 2008. They show:
Shortfall Car Parking Calculation - Table 2 |
One (1) space per 3.8 square metres of public floor area (128 square metres ÷ 3.8 = 33.68 car bays) 34 car bays |
• 0.85 (within 400 metres of one or more public car parking place(s) with in excess of a total 75 car parking spaces) • Calculation (0.85 x 0.85 = 0.7225) (34 car bays x 0.7225 = 24.56) 24.56 car bays |
|
|
10.11 car bays |
65 The overall shortfall, taking into account the above calculations is 10.11 car bays.
(Page 19)
66 A further factor to be taken into account is the "Minimum Parking Requirements" outlined in cl 22 of Policy 3.7.1 which states that, as a guide, a minimum of 15% of the required car bays should be provided on-site where the total requirement is between 11 and 40 car bays (after the initial adjustment factors).
67 In the case under review, this would require 3.68 bays (25.56 car bays x 15%) to be provided on-site.
68 A relevant point made in the report to the Ordinary Meeting of Council on 25 March 2008 is that Policy 3.7.1 does not have provisions for a "Small Bar" and that:
The Town's Officers consider that as the Liquor Control Act 1988 has provisions to limit the number of persons who may be on the licensed premises for small bars and, as the limit could be stated as a condition of Planning Approval, the car parking calculations may be derived from the maximum number of persons approved for the site.
69 If this line of reasoning is to be followed, then the relevant calculation would be:
Shortfall Car Parking Calculation – Table 3 |
One space per 4.5 persons (120 persons ÷ 4.5 = 26.67 car bays) 26.67 car bays |
• 0.85 (within 400 metres of one or more public car parking place(s) with in excess of a total 75 car parking spaces) • Calculation (0.85 x 0.85 = 0.7225) (26.67 x 0.7225 = 19.27) 19.27 car bays |
|
|
|
(Page 20)
70 If the provisions of cl 22 of Policy 3.7.1 are then applied to the car parking shortfall, as outlined in [66], then 2.89 car bays (19.27 x 15%) would need to be provided on-site.
71 However, of further relevance is the calculation and rationale behind "the most recently approved on-site parking shortfall", which was originally made on 16 November 1992 under the control of the City of Perth.
72 At that time, the City of Perth approved a change of use from retail (furniture store) to amusement centre and required 34 car bays. Following a complaint from the applicant, the number of car bays was reduced to 20 and, when the adjustment factors are applied, this number further reduces to 14.45 as shown at (d) in Table 2 and Table 3 above.
73 However, under Policy 3.7.1, an amusement centre today would require "3 spaces plus one space per 50 square metres of gross floor area". This means that, for the 459 square metre building, 12 car bays would be required (three spaces plus nine spaces (459 square metres ÷ 50)).
74 When the adjustment factors are applied, the number of car bays required would be 8.67 (12 x 0.7225).
75 Based on a set of revised figures, as outlined in [72] and [73] above, a new car parking shortfall calculation can be made:
Shortfall Car Parking Calculation – Table 4 |
One space per 4.5 persons (120 persons ÷ 4.5 = 26.67 car bays) 26.67 car bays |
• 0.85 (within 400 metres of one or more public car parking place(s) with in excess of a total 75 car parking spaces) • Calculation (0.85 x 0.85 = 0.7225) (26.67 x 0.7225 = 19.27) 19.27 car bays |
|
|
|
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76 If the provisions of cl 22 of Policy 3.7.1 are again applied to the car parking shortfall, as outlined in [66] above, then 2.89 car bays would need to be provided on-site.
77 What is clear from the calculations is that the resultant car parking shortfall in Table 2 (respondent's calculations) and Table 4 (Tribunal's calculations based on revised criteria) is approximately the same at 10.11 car bays (Table 2) and 10.60 car bays (Table 4).
Conclusions
78 The application for review was lodged against a decision of the Town of Vincent to refuse an application for a change of use from "Recreation Facility" (pool hall) to "Tavern" at No 560 Beaufort Street, Mount Lawley.
79 Following a mediation process, and reconsideration by the Town of the "Tavern" proposal to that of a "Small Bar", the matter was again refused on the grounds that the development was not consistent with orderly and proper planning and the preservation of the amenity of the locality. Also, it did not comply with the Town's relevant policies and objections received were valid.
80 In undertaking this review, the Tribunal has examined the respective positions of the parties, the background to the proposal, the relevant legislative and policy provisions and matters of orderly and proper planning, amenity, precedent and car parking shortfall.
81 The position taken by the applicant is that, by modifying the "Tavern" proposal (200 square metres of public floor space and a maximum 172 patrons) to a "Small Bar" (128 square metres of public floor space and a maximum 120 patrons), that this will mitigate any adverse impact on the amenity of nearby residents. Also, that there is a discretionary provision in Policy 3.7.1 for the Town to seek a cash-in-lieu contribution (as it did in the case of the nearby Must Winebar) for a car parking shortfall and that, in any event, there are car parking opportunities elsewhere in the immediate locality, particularly in the evening.
82 An economic argument is also put that alternative land uses such as offices and showrooms, which require less car parking, would not sustain current rental levels and that the building on the subject land has remained vacant for 11 months and has been the subject of vandalism. It is argued that this has resulted in an adverse impact on the amenity of the locality.
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83 The position of the respondent is that the provision of another small bar/tavern in the locality; particularly with no on-site car parking, will increase the demand for parking in the immediate area and that this would compromise the Town's pursuit of orderly and proper planning and the preservation of the amenity of the locality. Also, that with the high number of infringement notices being issued to drivers in Beaufort Street and nearby, this will give rise to parking spill-over into residential streets with a consequential loss of amenity.
84 The view is also put that, just because other similar developments have been approved in the same area in the past, that this is no reason to support the current application. Also, that the Town must consider the existing land uses along Beaufort Street and how the subject application will contribute to the overall planning situation.
85 In examining the background to the current proposal, the City of Perth (the then responsible authority) approved a change of use from retail (furniture store) to "Amusement Centre" in November 1992. The approval was for a 12month period only, as it was considered undesirable for the premises to remain unoccupied. That same argument of the unoccupied premises is put by the applicant today.
86 In December 1993, a request to increase the maximum number of occupants of the premises to 150 persons was refused by the City of Perth on the grounds of insufficient parking. A maximum of 50 persons was allowed and, as advised in the written submission of Ms Susannah Kendall, a Heritage/Planning Officer at the Town:
At this point it is important to highlight the site currently has a Maximum Accommodation certificate for 50 persons as per the Health (Public Building) Regulations 1992.
87 There was, and continues to be, a concern at local government level that, with the building occupying the whole of the site, it has the potential to accommodate a large number of patrons with a subsequent car parking shortfall and flow-on negative effects on the amenity of nearby residents.
88 On statutory matters, there are wide discretionary powers given to the Town under cl 38 of TPS 1 to determine an application for planning approval but it must have regard to a number of matters including any relevant planning policy, orderly and proper planning, and the conservation of the amenity of the locality. It is these provisions upon which the respondent chooses to rely in arguing its case.
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89 On policy matters, the emphasis in Policy 3.1.11 (Mount Lawley Centre Precinct) is on encouraging development within the commercial zone but not at the expense of the nearby residential areas. Attention is given to noise, site layout and adequate car parking provision and, where it is considered that a development would have an adverse impact on the amenity of the surrounding area, then the proposal should be advertised for public comment.
90 On the matter of noise, a report by Herring Storer Acoustics, dated 6 August 2007, concluded in relation to the original "Tavern" proposal that:
Based on the preliminary layout provided, we believe that noise emissions could be controlled to achieve compliance with the requirements of the Environmental Protection (Noise) Regulations 1997 at all time[s]. However, some noise control would need to be included in the design of the facility. This noise control could, depending on the internal noise level of the DJ, include:
- Barrier ceiling comprising 2 layers of 13 mm plasterboard to underside of purlins.
- Acoustically attenuated path for the supply air of the evaporative coolers[.]
…
91 The Tribunal is prepared to accept that a similar conclusion would be reached in regard to the less intrusive "Small Bar" proposal.
92 On the public advertisement process, there were objections to the original "Tavern" proposal on the basis of parking problems in an already congested area and an increase in noise, antisocial behaviour and loitering. There was also the view that the area has enough "pub type" venues.
93 Unfortunately, there was no public advertisement process in relation to the "Small Bar" proposal, and it is not possible for the Tribunal to conclude whether the same range of objections would have remained. The respondent has concluded that they would.
94 Under Policy 3.7.1 (Parking and Access), the basic rationale is that on-site parking is to be provided at a rate that adequately meets the demand generated by a particular activity. However, the Policy also introduces the concept of "adjustment factors" which attempt to recognise the proximity of public transport as a means of lessening travel by
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- car, and public parking areas as an alternative to street parking.
95 The overall effect of the "adjustment factors" is to reduce the parking requirement, but just why further adjustment factors ("the most recently approved car parking shortfall") should be built into the final calculations is far from clear to the Tribunal. Quite clearly, its effect is to significantly reduce the car parking obligations on a developer.
96 In this case, there is a bus stop close by and a public parking area at the corner of Barlee Street and Beaufort Street to the north which is relied upon by the applicant to argue that patrons would have transport options and places to park without necessarily impinging on nearby residential areas.
97 However, as argued by Ms Kendall:
It is also to be noted that the close proximity of the Barlee Street public car park has been taken into account in the overall car parking requirements for the proposal as an adjustment factor.
98 The Tribunal acknowledges Ms Kendall's argument and, even if some patrons attending a "Small Bar" development on the subject land were to use the Barlee Street car park, the facility would not be guaranteed to fulfil this demand over time. That is to say that if this development, and further developments with high parking demand were approved in future in the Commercial Zone, it may well be that the supply of parking spaces in the Barlee Street car park would be totally inadequate for the long-term parking demand.
99 However, it is the case that Policy 3.7.1 does contain a cash-in-lieu provision where non-residential developments have a shortfall in parking. In these circumstances, the Council may accept a cash-in-lieu contribution for all or part of the shortfall but is not obliged to do so.
100 Where monies are collected, they are to be used on nearby existing public parking facilities or for future facilities or for on-street parking where appropriate.
101 The Tribunal is unaware of the extent of funds (if any) collected by Council for this locality to be used for public car parking purposes.
102 In making a determination on this matter, it is clear that the applicant has made a concerted effort to reduce the amount of public floor area in order to minimise any adverse planning effects.
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103 The public floor area has been reduced by the applicant from an original 262 square metres ("Tavern") to 200 square metres ("Tavern") and then down to 128 square metres ("Small Bar"). The maximum number of patrons has been reduced from an associated 200 persons ("Tavern") to 172 persons ("Tavern") down to 120 persons ("Small Bar").
104 As advised by Mr Tyzack in his submissions of 27 May 2008, the public floor area (at 128 square metres) would amount to "just 28% of the gross building area".
105 However, it is the view of the Tribunal that if an approval were to be granted, and the business was to grow, there would be pressure over time to increase the public floor area (as was the case with the nearby Must Winebar) or to seek to maximise the under-utilised space for other purposes. Either of these outcomes would give rise to additional car parking demand.
106 What the Tribunal is dealing with here is a relatively large building that was, unfortunately, approved by local government to occupy the whole of the site (unlike adjacent commercial developments) and without any provision for on-site car parking. The effect of this has been to shift all of the responsibility for on-site private car parking onto the public arena by way of the Barlee Street Car Park and/or the public road system.
107 The only way the car parking shortfall could be provided on-site in part or whole would be to demolish part of the rear of the existing building or, if possible, to convert part of the rear of the building to covered car parking by way of internal modifications.
108 On the Barlee Street Car Park, it appears from photographic evidence provided by the applicant that, at 12.07 pm on Friday, 8 August 2008 (photo 6), there were only four vehicles in the car park and that this number increased to seven vehicles at 1.12 pm on the same day (photo 7). There was clearly additional car parking capacity available.
109 However, it is also clear that, at 12.27 pm on Friday, 8 August 2008 (photo 9), from Beaufort Street looking east down Harold Street, the number of parked vehicles are evidence of strong parking demand. This is also the case further along Harold Street opposite Forrest Park at 2.24 pm on the same day (photo 10).
110 It is also true that there was strong demand for parking in nearby Clarence Street looking east from Beaufort Street at 1.14 pm on 8 August 2008 (photo 15).
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111 The conclusion that the Tribunal draws from this information is that although there is strong parking demand in the locality during the lunch period on a Friday, there are still some available car parking spaces within a reasonable distance from the subject land.
112 A further factor, as evidenced from photo 13 taken on 7 August 2008, is that there are parking restrictions in Harold Street on certain Saturdays through to 6 September 2008 from 2 pm to 11 pm (residential permit holders excepted). Just why these restrictions are imposed, and whether it is intended that they continue, is not known by the Tribunal, but they would have the effect of forcing patrons of the nearby Beaufort Street commercial area to park even further away from their destination.
113 A relevant point raised by the applicant is that of the high rents being asked for space in the commercial area ($200 to $800 per square metre per annum) and, by implication, the need for a high intensity use to be able to pay the asking price.
114 In the view of the Tribunal, the asking price is a matter for the business owner to consider and if a high intensity use is being sought to function during both daylight and evening hours with consequential effects on the amenity of nearby residents, then some, or all, of the parking shortfall needs to be provided on-site.
115 If this cannot be achieved, then a different business decision would need to be made by the owner with respect to land use and rents being asked.
116 Of specific importance is that the respondent's parking policy is extremely generous in that it reduces an initial car parking requirement of 34 car parking spaces (or 27 spaces if calculated on the basis of one space per 4.5 persons) down to 10 or 11 car parking spaces.
117 What the community is being asked to accept is that with 120 patrons plus staff, the end result, after all adjustment factors, is a parking requirement of 10 or 11 parking spaces. This is a highly questionable result.
118 However, even putting this point to one side, it is the considered view of the Tribunal that, in the particular circumstances of the case, it would be inconsistent with orderly and proper planning for a private development, which is unable to meet any of its parking obligations on-site, to monopolise presently available public car park spaces.
119 It is also the considered view of the Tribunal that a cash-in-lieu contribution of some $26,000 to $28,000 (at $2,600 per bay) would do little to alleviate an immediate car parking demand emanating from the development with its consequential effect on the amenity of nearby residents in the locality; particularly during the evening and late night hours.
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Order
120 For the foregoing reasons the Tribunal makes the following order:
1. The application for review is dismissed.
I certify that this and the preceding [120] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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