GPA Pty Ltd and Town Of Cambridge
[2015] WASAT 61
•3 JUNE 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: GPA PTY LTD and TOWN OF CAMBRIDGE [2015] WASAT 61
MEMBER: MR J JORDAN (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 3 JUNE 2015
FILE NO/S: DR 26 of 2015
BETWEEN: GPA PTY LTD
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning Development Alterations and additions to existing shopping centre Approval condition imposed requiring owner to provide a total of 76 car parking bays for use for purposes of shopping centre Shopping centre on one of four lots Lot adjoining to south owned by another developed as shops Lots adjoining to east and west owned by local government and developed for parking and open space Limited number of parking bays on development site Further parking bays developed on road reserve adjacent to shops Alteration and additions within shopping centre building proposed following a fire Reduction in retail floor area Additional building for toilets and storage Parking plan condition imposed on earlier planning approval Whether car parking condition is valid condition of approval Tests for validity of planning condition
Legislation:
Planning and Development Act 2005 (WA), s 4, s 214, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 27, s 31(1)
Town of Cambridge Town Planning Scheme No 1, cl 18
Result:
Application for review is allowed
Condition 5 is deleted from the approval
Summary of Tribunal's decision:
This matter was concerned with the review of a condition imposed on a planning approval granted for alterations and additions to a section of an existing shopping centre. The condition required that the owner 'provide a total of 76 car parking bays for use of the purpose of the shopping centre'.
The applicant said no parking condition was required because the development would result in a reduction in the floor area of the shopping centre. The Tribunal was invited to infer that the condition had been imposed for the collateral purpose of applying commercial pressure on the applicant over a dispute between the parties to be determined in the Supreme Court.
The Tribunal found from the evidence that the shopping centre has limited onsite parking, but a condition of planning approval in 1989 showed that there was available to shopping centre customers sufficient parking on abutting local government owned land and the verge. A series of development approvals over at least 25 years has been based on the availability of that parking.
The Tribunal has found that there is a planning purpose to a condition of approval that requires the provision of adequate parking for the use. The shopping centre now on the site, however, was approved on the basis of sufficient parking spaces being available and the development approval does not in itself, generate the need for parking.
The Tribunal determined this matter as a merits review of the planning approval that was issued and not on the basis that there was in the Supreme Court a commercial dispute between the parties on how and if use of the Council owned carpark might be secured in some way by the applicant.
The Tribunal has found on the evidence before it that the alterations and additions approved for the shopping centre use of the site do not generate any additional parking requirements and therefore it is not appropriate to impose a parking condition.
The Tribunal concluded that condition 5 is not a valid condition of the planning approval and determined that the condition be deleted from the planning approval issued for the proposed alterations and additions.
Category: B
Representation:
Counsel:
Applicant: Mr J Robertson
Respondent: Mr J Skinner
Solicitors:
Applicant: Williams + Hughes
Respondent: Jackson McDonald
Case(s) referred to in decision(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Davies v Kuringgai Municipal Council (2003) 58 NSWLR 535
Kellett and Town of Vincent [2007] WASAT 155
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Randall and Town of Vincent [2005] WASAT 147
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve an application brought by GPA Pty Ltd (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). The application filed was for review of a deemed refusal by the Town of Cambridge (respondent or Council) of proposed alterations and additions to the Gayton Road Shopping Centre (shopping centre) on No 31, (Lot 100), Gayton Road, City Beach (site).
On the orders of the Tribunal, the respondent reconsidered its decision pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA). The respondent issued a conditional planning approval and the proceeding now is a review of condition 5 of the approval. Condition 5 states:
The owner to provide a total of seventy six (76) carparking bays for use for the purposes of the shopping centre.
The issue
The issue in this matter is:
Whether condition 5 is a valid condition of the planning approval.
Background
The parties, particularly the respondent, filed evidence of past approvals for the development of the site and of the use of abutting lots.
The site is one of four lots surrounded to the west by Oban Road, to the north by Gayton Road, which is in a 25 metre wide road reserve, to the east by Landra Gardens and to the south by a 70 metre wide road reserve which contains The Boulevard carriageway and, abutting the lots, an extension of the Chipping Road carriageway.
The site has an area of 3,202m² and is mostly occupied by the shopping centre building. The site has minimal provision for vehicle accessways and parking at the margins of the building. Abutting the site to the south is Lot 3 of 1,518m² which is developed with the Boulevard shopping centre owned by another (Boulevard shopping centre). To the west, abutting these two back to back shopping centres, is Lot 10 of 4,008m² developed with vehicle accessways, car parking and open space. Abutting the two shopping centre sites to the east is Lot 12 of 2,503m² which is similarly developed with vehicle accessways and parking together with some open space. Lot 10 and Lot 12 are owned by the respondent.
In addition to car parking bays and accessways developed on these four lots, the wide road verges of Gayton Road and Chipping Road are both developed with parking bays and vehicle accessways to serve respectively the two shopping centre lots.
Under Town of Cambridge Town Planning Scheme No 1 (TPS 1) all four lots, including the site, are zoned 'local centre' and the proposed alterations and additions on the site are consistent with this zoning.
The applicant reports that in May 2014 there was a fire in the northwest corner of the shopping centre. An application for planning approval for proposed alterations and additions was made in November 2014.
The approved development is described as:
•demolition of some existing structures, including shopfront walls, male toilets, internal damaged walls/partitions and flooring;
•an extension to the south-western portion of the building of 46.35m² for toilet facilities;
•removal of existing male toilets and replacement with a shopfront;
•conversion of former female toilets into storage; and
•internal reconfiguration to widen the mall and create a new entry.
The applicant said the net floor area would be less than already approved for the site. This was because of the widened corridors and the toilets being excluded from the definition of floor area for the purpose of calculating car parking requirements.
The shopping centre on the site was first constructed in 1964 with a retail floor area of 664m² (and gross area of 745.5m²). A comment made in the July 1988 minutes of the then local government, the City of Perth (City), was that the car parking for the existing centre was accommodated on land designated as road reserve (Gayton Road) and a 'parks and recreation reserve' to a total of 150 bays'. A plan dated 1987 showed 118 car parking bays spread over Gayton Road, at the front of the shopping centre, on the site at the eastern and western boundaries and on part of the neighbouring Council owned lots abutting the site.
The evidence reveals that between 1964 and 1988 various approvals resulted in the creation of the site as it now exists by the closure and the purchase of the portion of Gayton Road, purchase of part of the Council owned land and the amalgamation by the then owner into a single lot. The resolution of the City to approve the sale of land to the shopping centre required, as a condition, the owner agreeing to enter into a lease for the existing parking bays on Council owned land. This was satisfied by the then shopping centre entering into an agreement for a licence in respect of parking bays on Council land in February 1989.
A 1987 application which was approved included a plan showing 118 bays over the site, the verge and the neighbouring Council lots. A 1988 planning approval is said to have been based on the same parking plan.
A 1989 conditional planning approval resulted in the shopping centre having a total gross floor area of approximately 1,410m². The 1989 approval included the following condition:
(2)The submission of a plan showing the layout of all car parking bays associated with the shopping centre to the Council's satisfaction.
The plan produced for the 1989 application has not been located, but the Tribunal has assumed the condition was cleared because the shopping centre continued to operate.
In 1990 planning approval was granted for change of use of one tenancy from shop to takeaway food outlet. A plan dated 1990 (1990 plan), shows a total of 111 parking bays on and adjacent to the site, consistent with the parking plans produced to support previous applications. A comment made in the officer's report in 1990 was that the new use would require eight parking bays but that the Council owned carpark was adjacent to the shopping centre and provided adequate parking.
In 1992 there was an application for a change of use of another tenancy to takeaway food outlet. The officer's report commented that the new use would require some nine car parking bays, but that the car park owned by the Council was located adjacent to the shopping centre and provided adequate parking. Reliance on the adjacent Council carpark to overcome a lack of onsite parking required approval by an absolute majority of Council, and this was granted.
In 1994 an extension to the floor area of the real estate agent tenancy was approved. The officer comment in the minutes was that two bays would be required by the addition, but that the extension was minor and that sufficient parking was available, including on the adjoining Council owned carpark. In 1995 an application was made to increase the floor area by a further 10m². The officer's comment again was that this was minor and would not significantly increase the parking requirements. In February 1996 there was a further application to reorganise the internal floor area to create an extra 75m² selling area. The gross floor area of the shopping centre was said to be approximately 1,488m² and required 99 car bays. The minutes said the proposal would require an additional car bay, increasing the current shortfall of parking to 20 bays. The officer's comment was that that existing parking provision was sufficient and the extra bay was not required.
A chronology filed by the applicant states that in 2004 the shopping centre was acquired by the applicant with an existing 'carpark licence' from the respondent for the applicant to use the adjacent Council owned carparks. In 2007 the licence expired and negotiations commenced between the applicant and the respondent to renew the licence for a further term. It was common ground that those talks have broken down and no new agreement has been reached. The applicant advised that the dispute between the parties on rights over and in respect of the car parks is the subject of Supreme Court proceedings initiated by the applicant in December 2014.
Discussion
The Tribunal would comment that, where a planning consent is issued subject to conditions, those conditions must first be complied with for the use to commence and must remain complied with for the life of the use, as approved, if the use is not to be in breach of the relevant planning consent. If there is a breach, it is open to the responsible authority to serve a notice under s 214 of the PD Act to remedy the breach. The Tribunal would add that once a development commences, the applicant having satisfied approval conditions, the planning approval operates in rem, and for the life of the particular use, in respect of a parcel of land.
In that respect the Tribunal considers, and this is supported by the evidence of the earlier Council minutes, that planning applications for alterations and additions to the shopping centre, at least from 1988 onward, included reference to plans of available parking. The Tribunal has concluded that the merit of later planning applications had regard to parking available to the shopping centre, at least as shown on the 1990 plan, if not the earlier plans. The minutes show that the parking available to the shopping centre was sufficient to satisfy the Council's parking requirements and the approvals were issued.
The current planning approval was issued on 24 February 2015 and includes the condition in dispute, condition 5 which states:
The owner to provide a total of seventy six (76) carparking bays for use for the purposes of the shopping centre.
In submissions on the issue in this matter, the parties referred to the tests of the validity of a condition known as the 'Newbury tests' from NewburyDistrict Council v Secretary of State for the Environment[1981] AC 578 which has been endorsed by the High Court of Australia in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57].
These can be summarised as:
1)The condition is for a planning purpose and not for any ulterior purpose.
2)The condition reasonably and fairly relates to the development permitted.
3)The condition is not so unreasonable that no reasonable planning authority could have imposed it.
A fourth test added in assessing whether a condition is valid is well established in administrative law in respect to town planning matters as was enunciated, for example, in Randall and Town of Vincent [2005] WASAT 147, and requires that:
4)The condition is certain and final.
Whether condition 5 is for a planning purpose and not for any ulterior purpose
The Tribunal would commence by stating that car parking being provided as part of a proposed shopping centre development is well established as a planning principle. Clause 18 of TPS 1 refers to policies that set standards and Town Planning Policy 5.1 Parking non-residential uses (Parking Policy 5.1) includes reference to providing parking spaces for non-residential uses, including shopping centres. The Parking Policy assesses parking requirements for a shopping centre as a particular use that includes uses that otherwise individually have their own parking requirement, such as shop, office and fast food outlet.
The applicant focuses on the difference between the net floor area that previously existed on the site and the reduced shopping floor area now proposed and how this reduction does not generate a requirement for a parking condition. The applicant argues that, therefore, the condition is not imposed for a planning purpose. The applicant's submission stated:
GPA invites the Tribunal to infer that the Town has imposed the Condition for the collateral purpose of applying commercial pressure on GPA over the outcome of the Car Park Dispute that is to be determined in the Supreme Court Action. That is not a planning purpose.
The respondent says that the condition arises directly out of what will continue to be the total retail floor area on the site, notwithstanding that, as submitted by the applicant, the retail floor space was the subject of earlier approvals and there is now proposed a reduction in floor area; that is, the respondent submits that a shopping centre of the floor area now proposed would require a certain number of parking spaces and so it has recast the condition to require the minimum number of total car spaces required for a shopping centre of the proposed size.
The respondent argued that the dispute between the parties filed in the Supreme Court has no bearing on the imposition of condition 5, which does no more than require the provision of car parking in accordance with the current Parking Policy, as applied to the reduced floor area of the shopping centre.
The Tribunal considers the wording of the condition is consistent with what might be a standard planning condition if the circumstances of the development warranted the imposition of such a condition. In this regard the Tribunal has had regard to the Council's role as the responsible authority, as defined at s 4 of the PD Act exercising discretion under TPS 1 and is looking at the approval de novo, as provided by s 27of the SAT Act.
How the Council might choose to deal with its land holdings in a commercial dispute is considered by the Tribunal not to be a basis for disregarding whether a condition has a planning purpose. If the condition were allowed to remain, there might be reference to it in proceedings elsewhere, but the Tribunal considers it would be acting beyond its power if it were to attempt to form an opinion on or be influenced by what consequences might be in proceedings elsewhere when determining whether or not a particular condition, which is clearly for a planning purpose, should be imposed.
The Council's action in the separate role as a landowner participating in commercial negotiations does not, in the Tribunal's view, compel the Tribunal to draw the inference suggested by the applicant to the exclusion of planning consideration when weighing condition 5 against the first Newbury test.
In respect of the first test, parking conditions imposed on a shopping centre proposal do have a planning purpose. The further Newbury tests must be considered before a conclusion can be drawn as to whether condition 5 should remain on the approval.
Whether condition 5 fairly and reasonably relates to the development for which the permission is being sought
The applicant argues that there is no nexus whatsoever between the condition 5 requirements and the proposed building refurbishment.
The applicant said that if the condition was to remain, one way to provide the parking on site would be to demolish the shopping centre and create parking, which of course would be nonsense as no parking would then be required. The applicant said that, alternatively, a decked parking station on the site over the shopping centre might be another solution. This latter course was said to not be fair and reasonable given that the development approval does not give rise to the need for condition 5.
In its submissions on this test the applicant returned to its assertions that condition 5 was imposed for the collateral purpose of applying commercial pressure on the applicant in the dispute between the parties being pursued in the Supreme Court.
The respondent submitted that the proposed development did have a planning consequence: there would be a reduction in the floor area of the shopping centre compared to the existing planning approvals. Under the Parking Policy this meant that there would be a corresponding reduction in the number of parking bays required. The respondent said condition 5 gave effect to this reduction in retail floor area and therefore fairly and reasonably relates to the proposed development.
To illustrate its submission, the respondent referred to the history of approvals for the shopping centre starting in 1964, as outlined in the background section above.
The Tribunal notes from the minutes associated with planning applications made to increase floor area or change the use of particular tenancies, at least from 1988 onward, that the respondent was satisfied that 25 onsite parking bays (a shortfall of eight) and the availability of at least 79 car parking bays offsite, on both the road reserve and abutting Council owned land, satisfied the requirement for the shopping centre use and the additions and changes proposed. All applications included an assessment of the currently available bays on the site, verge and abutting lot, and what change in the number of bays would be required as a result of the changes in floor space applied for. In each instance it was noted that there was a shortfall in bays provided but, from an assessment of the use made of existing bays, no additional bays would be required.
The Tribunal accepts that it was appropriate, and in fact necessary for proper planning, for the respondent, when assessing the current application, to give consideration to what number of parking bays would now be required with the refurbishment. There was no dispute that, because of the changes applied for, there would in fact be a reduction in the number of car parking bays required to satisfy the parking standards of Parking Policy. It was apparent to the Tribunal that the parking bays on the site, and adjacent, had not altered from the previous approvals.
The respondent, however, moved beyond such an analysis to impose the condition the subject of the review. It was the submission of the respondent, that the applicant's contention to satisfy condition 5 required construction of a new parking area on the site was in fact a misapprehension of what was required in order to 'provide' car parking in order to satisfy condition 5. The respondent said:
Condition (5) does not specify how the 76 carparking bays are to be 'provided', or set out a time or date by which the carparking bays must be provided.
The respondent accepts that the majority of the car parking bays required by condition 5 will need to be provided off site. The respondent goes on to suggest ways in which the car parking bays be provided, saying the suggestions do not limit the manner in which this may be achieved. The three suggestions listed all require commercial and legal agreements between the applicant and the respondent.
The Tribunal considers imposing a parking condition might satisfy the first of the Newbury tests, but has formed the opinion that condition 5 does not satisfy the second test. There is no argument that what is now proposed is a fresh use of the site, requiring a fresh set of conditions. The previously approved use continues with alterations and additions.
The existing floor area of the shopping centre, beyond that area converted to corridor and entrance, is not part of this planning application, even though some of it might be refurbished. As with the previous applications for changes and additions, the current application brought with it a requirement to address associated parking requirements. In this matter the change does not generate any need for parking, so no condition for parking is required. In Kellett and Town of Vincent [2007] WASAT 155 (Kellett), at [21] [24] the development approved attracted a further condition, but that condition could be applied only to the development applied for, and not retrospectively applied to development previously approved.
In this matter, the circumstances are different from Kellett because no new condition is required. The Tribunal considers, however, the principle remains sound, and condition 5 does not reasonably relate to the development applied for.
The Tribunal has formed the view that the use of the site for the shopping centre purposes remain subject to conditions imposed in 1989, except where applications approved subsequent to 1989 required different conditions particular to the detail of those applications. The 1989 condition that required a plan showing available parking spaces to be prepared was satisfied. For each application for planning approval since then, the 1990 plan produced to show available parking spaces was part of the basis for the assessment of parking changes that might be required.
The Tribunal is aware that there is a commercial dispute between the parties in the Supreme Court about a commercial arrangement to make available for the shopping centre parking bays on the Council's land. The Tribunal notes that the respective submissions of the parties did not explain the basis for the 1989 licence agreement between the City and the shopping centre in this regard.
In this matter the Tribunal would say again, it has the view that the Council has roles both as a landowner seeking commercial arrangements, but also as a responsible authority under the PD Act to consider the planning merit of development applications. The Tribunal is not in a position to consider other than the planning decision of the respondent. The Tribunal notes that the Council has not restricted access to the parking bays on its land while the commercial dispute is being pursued.
The evidence before the Tribunal was that there was available to the shopping centre customers the bays identified in the 1990 plan, which was sufficient to enable the shopping centre changes to proceed. It was not apparent to the Tribunal that the commercial disagreement between the parties in the Supreme Court might be resolved. Whether the outcome of that dispute will affects whether or not the shopping centre can continue to satisfy the conditions of planning approval originally imposed, was considered by the Tribunal to a matter separate from the planning approval currently before the Tribunal. The Council did not refuse this application. The Tribunal accepts that the approved development changes the parking situation only in that fewer bays are now required.
The Tribunal concludes that requiring parking to be available is a planning purpose, but in this circumstance condition 5, as imposed, which might otherwise have been imparted as advice, does not fairly and reasonably relate to the development for which permission was being sought and approval has been granted.
Whether condition 5 is so unreasonable that no reasonable planning authority could have imposed it
The Tribunal came to the conclusion above that the condition as imposed does not reasonably relate to the development applied for; that is, in a review on the merits, condition 5 has been found not to be reasonable in that sense, in the circumstances of this case.
In its submissions on the third Newbury test, the respondent refers to the strict test of unreasonableness as set out in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at [230]. In essence, 'Wednesbury' unreasonableness is as expressed in this test. In its submission, the respondent referred to Wednesbury unreasonableness as being 'extremely confined' and requiring 'overwhelming proof' that the decision in question is 'devoid of any plausible justification' or 'irrational', or a decision for which 'no logical basis can be discerned'. The respondent cited various cases in which this approach has been followed, including Davies v Kuringgai Municipal Council (2003) 58 NSWLR 535.
The Tribunal is of the view that a parking condition is not of itself unreasonable in a Wednesbury sense. It is an established planning principle that a purpose built shopping centre provides parking for customers. A wider scope for an assessment of reasonability then overlaps with the second Newbury test outlined above. In that sense, what is required is to determine whether condition 5 is reasonable and fair as it relates to the development.
The applicant consistently views condition 5 through the prism of the dispute between the parties currently in the Supreme Court. As discussed above, the Tribunal does not accept that action in the Supreme Court should be determinative of whether or not a particular planning condition, as imposed on a planning approval, is reasonable. The Tribunal believes that while imposing the parking condition on the development approval might be unreasonable in a merit assessment, it does not believe that imposing a condition related to car parking on a shopping centre development would be ultra vires on the basis of Wednesbury unreasonableness.
Whether condition 5 is certain and final
Given the Tribunal's conclusion above, a finding on this test is not necessary to determine the matter. The Tribunal would comment, however, that the requirements of condition 5 are certain and final in the context that the 1990 plan, used as a basis for determining parking requirements, is still relevant. This is not an ambulatory condition, as expressed. The evidence was that, when determined, there was available sufficient parking bays for the shopping centre in the configuration now proposed.
Whether the dispute between the parties in the Supreme Court has an impact on how the site might be used at some future time is considered to be a matter between the parties at that time and not part of this deliberation. In this matter, the Tribunal is of the view that the appropriate test is whether the condition reasonably relates to the approved development and, in this respect, the condition fails.
Conclusion
A planning use must satisfy conditions of approval to commence and the conditions of approval must remain satisfied if the use is not to be in breach of the approval.
The Tribunal has found that the provision of adequate parking is a requirement that would be directly applicable to the approval of a purpose built shopping centre. The shopping centre now on the site was approved on the basis of sufficient parking spaces being available. The various approvals to create the shopping centre each included an assessment of the impact of any approval on parking requirements and how any change related to the use made of the parking bays shown to be available in the 1990 plan.
It was appropriate that the current proposal also be assessed against available parking and there was no evidence that the availability of parking had been reduced from that which was the basis of earlier parking assessments. This was despite there being in the Supreme Court a commercial dispute between the parties on how and if use of the Council owned carpark might be secured in some way by the applicant.
The Tribunal has found on the evidence before it that the alterations and additions approved for the shopping centre use of the site do not generate any additional parking requirements and therefore it is not strictly necessary to impose a parking condition.
The Tribunal has therefore concluded that condition 5 is not a valid condition of the planning approval.
Orders
1.The application for review is allowed.
2.Condition 5 is hereby deleted from the approval as set out in the Town of Cambridge decision of 3 March 2015.
I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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