GRACE and CITY OF NEDLANDS - [2010] WASAT 53

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: GRACE and CITY OF NEDLANDS [2010] WASAT 53

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 25 MARCH 2010

DELIVERED : 25 MARCH 2010

FILE NO/S: DR 372 of 2009

BETWEEN: MARGOT GRACE
Applicant
AND
CITY OF NEDLANDS
Respondent

Catchwords:

Town planning Development application Cafe (restaurant) Increase in seating capacity from 15 to 48 Commercial precinct comprising two properties surrounded by low density residential area Car parking and traffic congestion in residential area Local amenity afforded by cafe

Legislation:

City of Nedlands Town Planning Scheme No 2, cl 3.5, cl 5.4.1.4, cl 5.5.1, cl 5.7.1, cl 6.3, cl 6.3.3, cl 6.3.4, cl 6.4.2, Sch III
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Development approval granted for cafe (restaurant) with 20 seats or 25 seats so long as two car bays at petrol station are marked and kept available for patrons of the cafe

Category: B

Representation:

Counsel:

Applicant: Mr K Adam (Representative)
Respondent: Mr S Allerding (Representative)

Solicitors:

Applicant: KA Adam & Associates (Architects and Town Planners)
Respondent: Allerding & Associates

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Ms Margot Grace sought development approval to use premises in Nedlands Village, at the corner of Dalkeith Road and Princess Road, Dalkeith, as a café with 48 seats. The premises were previously used as a café with 15 seats. Nedlands Village is an isolated commercial development surrounded by a low density residential area.
There was no on site parking available for patrons of the café. There was an historical shortfall in onstreet parking for Nedlands Village adjoining and adjacent to the commercial precinct. The evidence showed that when the café commenced operating with 30 or more seats in August 2009, parking and traffic congestion resulted in residential streets.
The Tribunal gave an oral decision following the hearing. The Tribunal granted development approval for a café with five additional seats over the 15 currently approved, because the café attracts some local customers who do not drive to it and because it provides a local amenity. The Tribunal also granted approval for a further five seats, so long as two car bays at the adjacent patrol station are marked and kept available for patrons of the café.
Finally, the Tribunal noted that there appears to be capacity to create further onstreet car parking in the form of an embayment to the east of Florence Road. If the Council were willing to carry out this work, it should be paid for by the owners of Nedlands Village. This would enable additional seats to be approved at the café at the rate of five seats for two additional car bays.
The Tribunal's reasons, edited from the transcript, were as follows.

Introduction

Ms Margot Grace is a restaurateur with considerable experience. She and her business partner have established and run restaurants and cafés for many years, including a number of well known and successful restaurants in the City of Nedlands and elsewhere in Perth. Ms Grace lives not far from the intersection of Dalkeith Road and Princess Road, Dalkeith, where there is a commercial development known as Nedlands Village.
Nedlands Village comprises a building with seven tenancies on a typically sized and shaped original quarter acre allotment. The tenancies include a hairdresser, a travel agent, a cake shop/bakery, a dress shop, a gourmet food store, a beautician and now the Feast Café, operated by Ms Grace and her business partner.
The operation of the Feast Café commenced in about August 2009. Ms Grace applied to the City of Nedlands (City or Council) for development approval under the City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme) to operate a café in one of the tenancies of Nedlands Village. Ms Grace nominated a total of 48 seats for the café, of which 32 would be indoors and 16 outside on the footpath. She nominated proposed operating hours of 7 am to 5 pm daily.
Historically, the tenancy, which is the subject of this application, was used as a deli, and then most recently as a café with a total of 15 seats, in accordance with a development approval granted by the City. That development approval is current. It does not restrict the hours of operation of the café. I note that a café, at least of the nature proposed by Ms Grace, is technically a 'restaurant' for the purposes of the Scheme. I will return to the significance of that classification later.
The Council advertised the development application and received 16 submissions from members of the community, of which seven were in support and nine in objection to the proposal. The application was presented to the Council on 1 September 2009, with a recommendation by the Council's assessing officers for the granting of approval subject to conditions, including a condition limiting the number of seats to 30, rather than the 48 sought.
The Council, however, granted approval subject to a condition limiting the number of seats to 15. As I have said during the course of the hearing today, the Council's decision was, in effect, a refusal of the application, given that there is an operative development approval for the use of the site as a restaurant with 15 seats.
Ms Grace subsequently sought review of the Council's decision by the Tribunal in accordance with s 252(1) of the Planning and Development Act 2005 (WA). Following mediation in the Tribunal, the Council was invited to reconsider its decision in accordance with s 31 of the State Administrative Tribunal Act 2004 (WA), which it did at its meeting on 24 November 2009. The City revoked its earlier decision and imposed a decision granting development approval, subject to conditions. In particular, the Council limited the approval to one year, limited the number of seats to 25, limited the hours of operation to 8 am to 5 pm Monday to Saturday, and required Ms Grace to enter into an agreement with the service station, which is located on the northwestern corner of the intersection of Princess Road and Dalkeith Road, Dalkeith, enabling two car bays at the service station to be used for the purposes of the café.
The resolution of the Council also referred to the provision of two onsite car bays for the purposes of the café. It appears that that aspect of the approval arose from a misunderstanding between a councillor and the owner of the Nedlands Village, because the only two car bays that are located on the Nedlands Village property are licensed to the travel agency. In the proceedings, the Council, represented by Mr Steven Allerding, contended that a condition should be imposed requiring the provision of the two car bays on site for the café, and that if that could not be done then, in effect, five seats should be removed from the approval.
Ms Grace has, it appears, obtained an informal approval or agreement from the service station for two bays to be provided for the café, although those bays are not presently provided for the café. Mr Ken Adam, who represented Ms Grace in the hearing, however, expressed concern about imposing a condition to that effect because, understandably, Ms Grace and any subsequent proprietor of the cafe could not ensure that the service station will remain in perpetuity. The City contended in the hearing today that if the two car bays cannot be provided at the service station, then a further five seats should be removed from the café.

Site and locality

Nedlands Village is zoned Retail Shopping under TPS 2. The service station, to which I have referred, is zoned Service Station under TPS 2. These two sites form a discrete and isolated commercial precinct in an otherwise predominantly, if not exclusively, low density residential area zoned Residential and subject to a residential density coding of R10 under the Scheme.

Scope of application for review

As noted earlier, the City has granted a conditional development approval. Ms Grace contests, in effect, all of the conditions subject to which the Council granted approval. However, as was discussed during the course of the hearing, in effect, the range of available outcomes in this review is from approval of the proposal with 48 seats and without any conditions to refusal of the application.
If the Tribunal ultimately arrives at the view that there should not be more than 15 seats in the restaurant at the site, then the application in my view should be refused, rather than approved, subject to additional conditions to those which currently operate.

Consideration of application for review

The proposed development is, as I have said, classified as a 'restaurant' under, and for the purposes of, TPS 2. A restaurant is marked 'AA' under the zoning table in the Retail Shopping zone. An 'AA' use is 'a use that is not permitted unless approval is granted by the Council'. In addition, cl 3.5 of the Scheme states that where an application is made to the Council for a use marked as 'AA' in the zoning table, Council may, if it considers it desirable to do so, require the procedures laid down in cl 6.3 of the Scheme to be followed.
Clause 6.3.3 of the Scheme enables the Council to advertise an application that is for an 'AA' use. As noted earlier, that was done in this case. Importantly, cl 6.4.2 of the Scheme states:
In respect of an application for planning approval made under Clause 6.3, the applicant shall satisfy the Council that the following conditions and standards have been met.
…
There then follows 10 conditions and standards, of which the following are relevant:
(b)… parking provisions are in keeping with the general character of the locality;
…
(d)the vehicular and pedestrian access, including onsite circulation and provision for deliveries will not create any danger;
(e)the vehicle flows to and from the subject land will not be disruptive to existing traffic movements or circulation patterns;
(f)that any traffic generated must be capable of being accommodated within existing streets.
Also relevant is cl 5.7.1 of the Scheme, which contains specific matters for consideration in relation to the Retail Shopping zone. Those considerations include:
…
(f)offstreet parking is laid out to provide for both the convenience and safety of shoppers;
(g)vehicular access from public roads is so sited as to minimise hazards to passing traffic.
Schedule III of the Scheme contains car parking requirements by use class. In relation to 'restaurant' use, the criterion is '1 [car bay] per each 2.6 [square metres] of restaurant seating area, OR 1 [car bay] per 2 persons'. 'Persons' is defined to mean 'the number of persons for which a building has been designed or for whom seating is provided'.
Discretion is conferred on the Council to vary the car parking standard by cl 5.4.1.4 of the Scheme in relation to development other than residential. However, that discretion is to be exercised, taking into account certain specified matters, including:
…
(iv)the effect on the amenity of adjoining premises, including potential effects if spaces should later be roofed or covered and the suitability or adequacy of proposed screening or natural planting;
…
Finally, in terms of relevant Scheme provisions, cl 5.5.1 of the Scheme states:
… the Council may refuse to approve any development if in its opinion the development would adversely affect the amenity of the surrounding area having regard to the likely effect on the locality in terms of the external appearance of the development, traffic congestion and hazard, noise, or any factor inconsistent with the use for which the lot is zoned.
The evidence shows that the other six tenancies in Nedlands Village, and the historic use of the subject tenancy as a café (restaurant) with 15 seats, generate a need for approximately 50 car bays in accordance with Sch III of TPS 2. However, there are only two car bays within Nedlands Village, and 19 marked car bays on streets adjoining or adjacent to Nedlands Village. Of the 19 onstreet car bays, 13 are subject to 15 or 30 minute restrictions.
The car parking bays on Princess Road, in the vicinity of Nedlands Village, are in the form of embayments on both sides of the street that effectively widen the street and enable twoway traffic. The car bays on Dalkeith Road include two marked bays on the kerb and the rest on one side of the street only in marked on-street bays. On the opposite side of Dalkeith Road to the marked bays, there is no parking allowed so as to enable twoway traffic to be maintained. There is no onstreet parking adjoining the service station on either of its street frontages.
In consequence, there is an existing historical shortfall in the provision of car bays for the purposes of Nedlands Village, including the premises comprising the Feast Café.
Clause 5.7.1 of the Scheme requires the Council to have regard to matters, and it may impose conditions to ensure that offstreet car parking is laid out to provide for both the convenience and safety of shoppers. It is accepted by both parties in this case, however, that offstreet car parking cannot be provided for any of the uses in Nedlands Village.
As also noted earlier, one of the matters in respect of which an applicant for development approval is required to satisfy the Council under cl 6.4.2 of the Scheme is that traffic generated must be capable of being accommodated within existing streets. The difficulty in this case is that even the traffic generation of the existing Nedlands Village, according to the traffic generation rates in TPS 2, cannot be accommodated adjoining or adjacent to the commercial precinct, and there is a shortfall in the order of 29 car bays.
The application before the Tribunal would, according to the traffic generation rates in Sch III of the Scheme, result in a further 16 vehicles, assuming 48 seats were occupied. The key issue in this review relates to where the additional vehicles, whether 16 or a lesser number, would be accommodated.
The parties debated whether in fact the traffic generation rates in the Scheme are excessive. It is not for the Tribunal in this review to assess that question. It certainly appears to be common ground that the Council has historically exercised the discretion in relation to the number of onsite car bays required in relation to most, if not all, restaurant developments in the local government area, at least to some degree.
The evidence presented by the Council was from both local residents and Ms Amanda Butterworth, a town planner. The evidence of Mr Robert Stewart and Mr Steve Calderwood was that, with the commencement of operation of the Feast Café with apparently 30 seats in August 2009, there was created for the first time, particularly in Florence Road, a traffic and parking problem.
Mr Stewart, who has been a resident of Florence Road for a number of years, gave evidence that the operation of Feast Café since August 2009 'has caused considerable parking issues in Florence and Dalkeith Roads, both north and south of Princess Road'. He said:
Until August [2009], we had no problem with the Princess Road shops. They had happily coexisted with local residents at least for the 12 years I have lived there.
The current situation has arisen purely as a consequence of the operation of Feast Café for a use that, in our estimation, should never have been allowed.
Under cross-examination, Mr Stewart agreed that congestion does not always occur, although he maintained that when there is congestion it is 'quite congested'. Mr Stewart also agreed that he was not able to say with any certainty that all of the additional traffic that he observed in Princess Road and Dalkeith Road in the period after August 2009 was generated by the Feast Café. However, I find that, based on the fact that Mr Stewart was a resident for 12 years before, and remains a resident, and given that there does not appear to have been any other new significant development or use in the locality, the additional traffic that he referred to, and attached some photographs to his witness statement concerning, was generated by the opening of the Feast Café.
Mr Calderwood is a retired professional, and in consequence is home most days. He gave the following evidence:
… I have witnessed for myself, the problems that the additional traffic and parking problems that have been caused by the café operating with seating in excess of the licensed amount of 15 seats.
During our 15 years of living in Florence Road, we have enjoyed the peaceful ambience that you expect from living in one of the residential streets in Nedlands and have also lived in complete harmony with the small retail development on the corner of Princess and Dalkeith Road.
This however, all changed in August 2009 with the opening of 'Feast's' café at 71 Princess Road.
Immediately the café opened for business, the whole ambience of our environment changes from living in a quiet residential street to effectively 'living in a car park'.
The café was only licensed for 15 seats (as was the case for the previous café that occupied these premises), but despite no Council approval having been given, the café opened with 30+ seats and immediately caused the first 100 plus metres in Florence Road, both north and south of the junction with Princess Road together with Dalkeith Road to become a parking nightmare, affecting both the ambience of the area and safety in our once safe residential street.
Mr Calderwood was also challenged in crossexamination as to whether he could say that the additional traffic that appeared in the locality in August 2009 was due to the use of the site as a restaurant by Ms Grace and her business partner. Mr Calderwood replied that in fact he had seen people parking either illegally or in an inappropriate manner in Florence Road, proceeding to or from the Feast Café.
In any case, again I find that, based on the fact that Mr Calderwood was a longterm resident and that there does not appear to have been any significant other change of use or development in the locality, the change that occurred in August 2009 was due to the operation of the Feast Café. It is to be noted, however, that at that time the Feast Café operated, according to Mr Calderwood's evidence, with 30 plus seats.
Ms Butterworth gave evidence as follows:
It is considered that the a restaurant with a total capacity of 48 seats will exacerbate the parking issue and result in the potential for parking to extend further into the Residential area … It is considered that the a café with 48 seats, together with the other uses that presently exist at Nedlands Village that the traffic and parking will not be satisfactorily able to be accommodated within the existing streets without adversely affecting the amenity of the adjacent residential locality.
Ms Grace gave evidence in which she said that there are in fact quite a number of local people, such as mothers with prams and people riding bicycles, who come to the Feast Café, without driving there, particularly in the morning. She accepted, however, that at lunch time, people tend to drive to the café.
Ms Grace also relied on evidence from Councillor Max Hipkins, who is a town planner by profession and also the Deputy Mayor of the City. Councillor Hipkins expressed the opinion that the number of seats at the Feast Café 'should be in the range of 30 to 50 seats, not necessarily at the lower end of the range', and that the Feast Café 'could operate successfully from its existing premises with 40 seats and no further conditions of approval'.
Councillor Hipkins based his evidence largely on a review of other approvals for restaurants, including cafés, in the local government area and a survey of certain of those. In relation to the review of other approvals, evidence presented on behalf of the City by Councillor Irene Tan indicated that for five of the seven approvals referred to by Councillor Hipkins, there is available offstreet parking in the form of Council car parks as well as onstreet parking. The sixth approval referred to by Councillor Hipkins was granted in 2005 on the basis that, in Council's determination, 'there was adequate onstreet parking available within the immediate locality which would cater for any shortfall of on-site car parking'. The final approval related to a site on Stirling Highway where there is available car parking. As suggested by Mr Allerding, Stirling Highway is an entirely different environment from the Nedlands Village, which is an isolated commercial property in an otherwise residential and indeed low density residential precinct.

Importantly, each of the examples of approvals referred to by Councillor Hipkins are distinguishable. That is not to say, however, that discretion is not available in this case, as it was in each of those cases. However, discretion needs to be exercised having regard to the particular circumstances of the case.
Materially, there is no car park in the locality of Nedlands Village and there is an historical shortfall in the provision of onstreet parking in the area adjoining and adjacent to the commercial precinct.
The survey undertaken by Councillor Hipkins was a single survey on a single day, and cannot form the basis of a considered assessment.
In addition, Ms Grace relied on the evidence of Ms Pamela Kikiros, who is a part owner of Nedlands Village. Ms Kikiros said that she has never seen, or only very rarely seen, illegal parking of vehicles in the vicinity of the site. She also said that the Feast Café is appropriate because of Ms Grace's experience as a restaurateur. The previous café failed, according to Ms Kikiros, because the operators served unsuitable food for the locality and did not have experience in business.
The bulk of Ms Kikiros' written evidence involved a survey of some 11 approvals for restaurants, including cafés and lunch premises, in the local government area. Six of the 11 premises have available offstreet parking nearby, in the form of Council car parks, as well as available onstreet parking. Three of the remaining five are located on Stirling Highway, and another is located on Strickland Street, which is a shopping strip. The 11th premises, known as La Gulette de France, was approved in 2004 with only 11 seats, although it appears from the evidence of Ms Kikiros, and supported by photographs, that there are well in excess of that number of seats now. Nevertheless, that premises is distinguishable in terms of the approval. It is a matter for Council to enforce its development approval conditions.
Ms Kikiros was concerned that the Council has treated Ms Grace's application 'inequitably' because, whereas it was prepared to exercise discretion, in some cases to a considerable extent, in relation to onsite car parking in respect of certain of the other approvals she referred to, it was not prepared to exercise discretion, at least to the extent sought by Ms Grace, in this case.
I do not consider that the Council has treated Ms Grace inequitably. Each case needs to be assessed on its own merits and, as I have said, each of the other approvals is distinguishable in important respects. What is important, in my opinion, in relation to this case is that there is an existing historical shortfall, there is no capacity at all to provide onsite car parking, and the proposed development would, at least according to the traffic generation rates in the planning Scheme, result in some 16 additional cars visiting the site.
Ms Grace also relied on evidence of local residents, Mr and Mrs Ritchie and Ms MacLaurin. Each of these witnesses considered that the Feast Café provides a very valuable local amenity to residents of the locality. Ms MacLaurin described the café as 'a very popular, top class café' and 'an attractive up-market venue which offers great coffee and high quality gourmet food'. Ms MacLaurin also referred to the welcome opportunity to buy good quality takeaway food on the way home.
Mr and Mrs Ritchie, who live diagonally across Princess Road from the Feast Café, to put it colloquially, could not see what the fuss was about in terms of the concerns expressed by certain of their neighbours. They said that they 'found [the additional traffic] to be of no particular consequence, and particularly not an inconvenience or safety issue'.
However, it should be noted that the Ritchies' property is arguably the least affected of residential properties in the locality of the site, because it has a long boundary to Princess Road, adjacent to which there are four established car bays used in part, at least, by Nedlands Village patrons, and the short boundary of the Ritchies' property is close to the intersection of Princess Road and Florence Road, where Mr Ritchie agreed there is usually no parking because of proximity to the intersection.
The residents who gave evidence against the proposal referred to a petition which was presented to the Council and organised by them. The Tribunal normally does not give great weight to petitions because the petitioners are not able to be tested in a Tribunal hearing. In this case, however, the petition does give some further support to the concerns in terms of the experiences referred to by the two witnesses, particularly given that the concentration of petitioners is in the areas that, according to the photographs in evidence, have been subjected to traffic and parking issues due to the operation of the Feast Café.
The Tribunal is not satisfied of the matters set out in cl 6.4.2 of the Scheme in relation to the accommodation of traffic generated by the proposed development at 48 seats. In particular, the applicant has not satisfied the Tribunal that the condition 'that any traffic generated must be capable of being accommodated within existing streets' is met, at least if the existing streets are those which adjoin or are adjacent to the commercial precinct.
In addition, Ms Grace has not satisfied the Tribunal that the condition and standard that 'parking provisions are in keeping with the general character of the locality' has been met. The general character of the low density residential locality, as expressed by residents of many years, is clearly one in which there is very little onstreet parking.
While it was suggested on behalf of Ms Grace by Mr Adam that there is benefit in terms of amenity on occasion in having onstreet parking and slowing down traffic, it is clear from the photographs, and from the view taken by the Tribunal, that car parking of the nature and of the quantity shown in the photographs is undesirable and certainly not in keeping with the general character of that particular low density locality.
In addition, I find that the proposed development would adversely affect the amenity of the surrounding area, having regard to traffic congestion and hazard for the purposes of cl 5.5.1 of the Scheme. That is because of the particular low density character of the area and the evidence of residents that parking of vehicles generated by the Feast Café has caused traffic congestion and potential safety problems.
Having said that, in assessing the amenity impact of the development, in this case, at least, a countervailing consideration is the obvious local amenity that is provided by the Feast Café. I accept the evidence of Ms Grace, and other witnesses, that the Café is professionally run and provides a desirable amenity. I do not think, however, that that benefit and that amenity countervails to any significant degree the negative amenity consequences of the proposal, particularly at 48 seats and, indeed, even to the extent of 30 seats, as appears to have been the case in late 2009.
Mr Adam argued that there is an issue of equity and consistency raised by this application. I accept that orderly and proper planning does require consistent decision making. However, as I have said, each of the approvals relied on by Ms Grace is distinguishable. Furthermore, there was evidence given by Ms Kikiros that, notwithstanding the distinguishable characteristics of some of the localities in which restaurants have been approved, there are problems, even in those areas, as a result of inadequate car parking. Those examples referred to by her count against the proposed development, rather than in favour of it.
As I said, there have been a number of cases in which it appears that Council has exercised discretion under the Scheme in relation to the number of onsite car bays. It has that capacity under the Scheme and it is appropriate, and indeed necessary in properly applying the Scheme, to consider in each particular case whether discretion should be exercised. However, a key factor, as I have emphasised in this case, is that there is an existing historical shortfall of car parking.
I have given careful consideration to the exercise of discretion in the circumstances of this case, and although I have found that the Tribunal has not been satisfied in relation to a 48 seat café, I consider that there is capacity to exercise discretion in relation to car parking to a limited extent in relation to the site, due to the provision of a local amenity, and the attraction of some local custom to the site that would not travel by car.
It is true that some local custom is also contemplated by the existing historical shortfall in car parking provision. However, in my view it is appropriate to exercise a limited discretion to increase the number of seats independently of the historical shortfall to reflect local custom and, as I have said, the local amenity that is obviously created by this use.
I consider that five additional seats is a reasonable exercise of discretion under the Scheme to have regard to local amenity and local custom. I also consider that the Council's willingness to accept five seats for two car bays at the petrol station made exclusively available for patrons of the café is a reasonable approach.
Beyond those five, and if two car bays are available at the service station, 10 additional seats, meaning up to 25 patrons at the café, I think that without some further car bays being provided in the vicinity of the site in Princess Road, it would be inappropriate to go. In particular, beyond that point, in my opinion, based on the evidence that has been presented, particularly the experience since August 2009 and, in any case, an application of the traffic generation rate under the Scheme, even discounted to some extent, there would be an adverse amenity impact on the surrounding low density residential area. In my opinion that should not be allowed.
I have no doubt that, as I have said, Ms Grace is a very experienced restaurateur. I have no doubt that Feast Café operating to 48 seats would be a great success, having heard the evidence of residents and others, and having viewed the premises myself. However, from an amenity perspective, that success is the problem, or would be the problem.
I should also say, before looking at other conditions, that there was discussion during the course of the hearing as to the capacity to alter the street layout of Princess Road, particularly towards the east, which is part of the residential area but, nevertheless, reasonably proximate to the commercial precinct. That is a matter of course for the Council as the authority with care, control and management of local roads. It would seem reasonable that if the Council is to undertake work in that area to increase the availability of onstreet parking, in effect for the benefit of the commercial precinct, then the owners of the Nedlands Village should pay entirely for that cost. If the Council does create additional onstreet parking in the form of an embayment, at the expense of the owners of Nedlands Village, then an increase in the number of seats at Feast Café could be approved at a rate of five seats for every two additional car bays created.
In terms of other conditions of approval as imposed by the City in its reconsidered decision, in relation to the hours of operation, Mr Allerding agreed, and fairly so, that the restrictive hours imposed by the Council were in part due to Ms Grace's own indication to the Council of proposed hours of operation and in part due to a concern about the number of cars that would be generated, particularly with increased seating.
I consider that if the application were approved with a maximum of 20 seats, and an additional five, so long as two car bays were provided exclusively for patrons of the café at the petrol station, then the development would operate satisfactorily within the hours sought by Ms Grace, with one exception in terms of hours.
Ms Grace asked for approval from 7 am to 7 pm Monday to Saturday. She explained that the additional hours, in addition to the hours sought in correspondence with the Council, which was to 5 pm, was to accommodate people particularly wishing to take takeaway food home at the end of the day. It was not to accommodate patrons dining in the evening. She also sought approval from 7 am to 1 pm on Sunday. That aspect is consistent with the indication to the Council when the application was lodged. I consider that it is reasonable to allow operation from 7 am to 6 pm during the week and on Saturday. The period between 6 pm and 7 pm is, in a residential precinct, already distinct in character from during the day.
While there was discussion about other uses on the site operating, particularly the hairdresser, outside of business hours, I consider that it is appropriate in terms of minimising impact on the surrounding residential amenity to restrict hours to 6 pm. As Ms Grace said, there is not really capacity, in any case, before 7 pm to provide a dining venue. It is really to provide a takeaway service. I agree that there is a local amenity with the operation of the café on a Sunday morning, and I ultimately accept that there should be no reason why the café could not operate from 7 am in the morning on Sundays.
In relation to the condition limiting the operation of the approval for one year, I am not persuaded that if the approval is limited to the number of seats that I have referred to, that a timelimited consent is warranted. Generally speaking, timelimited consents are appropriate where there is likely to be some change in the planning framework or in the character of a locality, or where there are management issues which it is appropriate to monitor after a certain period of time. I do not consider that there are any management issues that are given rise to by this proposed development, other than parking and traffic issues, and I am satisfied that those issues are adequately addressed by the limitation on the number of patrons.

Orders

For those reasons, I make the following orders:
1.The application for review is allowed in part.
2.The decision of the respondent made on 24 November 2009 is set aside and in its place a decision is substituted to approve the proposed restaurant located at No 71B (Lot 371) Princess Road, Nedlands, subject to the following conditions:
(a)a maximum number of 20 seats are permitted for the use (including indoors and outdoor) and an additional five seats (in total indoor or outdoor so long as two car bays at the petrol station on the north-west corner of Dalkeith Road and Princess Road are marked and kept available for patrons of the restaurant and signage is erected within the restaurant advising patrons of those bays and requesting them to use those bays if possible).
(b)the operating hours shall be 7 am to 6 pm Monday to Saturday and 7 am to 1 pm on Sunday.

I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER