HAMPTON 256 PTY LTD and CITY OF FREMANTLE - [2010] WASAT 73

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HAMPTON 256 PTY LTD and CITY OF FREMANTLE [2010] WASAT 73

MEMBER: MS M CONNOR (MEMBER)

HEARD: 23 AND 24 FEBRUARY 2010

DELIVERED : 25 MAY 2010

FILE NO/S: DR 450 of 2009

BETWEEN: HAMPTON 256 PTY LTD
Applicant
AND
CITY OF FREMANTLE
Respondent

Catchwords:

Town planning - Development application - Change of use and refurbishment of existing building Whether proposed uses are consistent with the objective of the Mixed Use zone - Intent of objective requiring small scale retailing of goods and services - Desired and likely future character of development area - Whether the development is consistent with the desired distribution of retail facilities - Whether existing dive shop is a 'Shop' for the purposes of classifying the use - Influence of existing building as a factor in determining the future development of the locality - Orders and proper planning

Legislation:

City of Fremantle Local Planning Scheme No 4, cl 1.4.2, cl 2.1.1, cl 4.2.1, cl 4.2(e), cl 4.2.1(h), cl 4.3.3, cl 4.4.2, cl 6.1.2 cl 6.2, cl 6.2.2, cl 6.2.3.1, cl 6.2.3.2, cl 6.2.4.1, cl 6.2.4.2, cl 10.2, cl 10.2(a), cl 10.3, Pt 6, Sch 1, Sch 11, Table 2

Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)

Result:

The application for review is allowed
The decision of the respondent is set aside and conditional approval granted

Category: B

Representation:

Counsel:

Applicant: Mr K Adam
Respondent: Ms A Butterworth

Solicitors:

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

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

Joondalup Gate Pty Ltd and City of Joondalup [2008] WASAT 47

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Hampton 256 Pty Ltd applied to the Tribunal for review of the City of Fremantle's decision to refuse planning approval for a change of use to 'Liquor Store', 'Showroom', 'Office' and 'Shop' and partial demolition and refurbishments to the existing building on No 256 Hampton Road, Beaconsfield.
The following six principle issues emerged for consideration in the determination of this matter:
1)To what extent was the proposed development consistent with the objectives of the Mixed Use zone of City of Fremantle Local Planning Scheme No 4.
2)Whether the proposed development was compatible with the desired and likely future character and amenity of the area.
3)Whether the proposed development was consistent with the desired distribution of retail facilities in the precinct.
4)Whether the existing dive shop was a nonconforming use under City of Fremantle Local Planning Scheme No 4, and if so, whether the proposed development for the dive shop is acceptable under City of Fremantle Local Planning Scheme No 4.
5)To what extent should the future development of the locality be influenced by the existing building and the size and configuration of the subject land holding.
6)Whether approval of the proposal would be consistent with orderly and proper planning.
The main thrust of the respondent's arguments relied on the interpretation of objective (e) i) of cl 4.2.1 of City of Fremantle Local Planning Scheme No 4 and whether the scale of the proposed uses were consistent with that objective. The Tribunal in interpreting objective (e) i) of cl 4.2.1 of the City of Fremantle Local Planning Scheme No 4 found the objective to be referring to the type of retailing of goods and services and not the floor area of the proposed activity. In reviewing the list of uses described in the objective, the Tribunal considered 'Liquor Store' to more appropriately fit within 'small scale retailing of goods and services' and as such, consistent with objective (e) i) of cl 4.2.1 and capable of approval. In relation to the showroom and office components of the application, the Tribunal found that both these uses were also capable of approval.
As there was no planning document that gave a clear indication as to the future desired character of the area, the Tribunal in determining whether the proposed development was compatible with the desire and likely future character and amenity of the area was guided by the Mixed Use zone provisions and the Zoning Table contained in City of Fremantle Local Planning Scheme No 4 and the Fremantle Planning Strategy and was assisted by the land use considerations contained in the Strang Street Structure Plan. The Tribunal found that the use of the existing building for a mix of commercial uses would be consistent with the objectives of the Mixed Use zone and the Fremantle Planning Strategy and was compatible with the contemplated future character of the area.
As to whether the proposed development was consistent with the desired distribution of retail facilities in the locality, the Tribunal was satisfied that the proposed development would not threaten the core operations of the local shopping centres and that the distribution of retail facilities in the locality would be maintained.
The Tribunal was also required to consider to what extent the future development of the locality was influenced by the existing building. The Tribunal considered the existence of the building on the subject land, its condition and ability to be converted for an alternate use as relevant factors to be taken into consideration in the determination of the application, although not determinative of the matter.
In relation to the dive shop, the Tribunal found that the activities carried out by the business did not fall within the strict definition of 'Shop' as defined under the City of Fremantle Local Planning Scheme No 4 and could not reasonably be determined as falling within the type, class or genus of activity of any other use category contained in Table 2. Pursuant to cl 4.4.2 of the Scheme, the Tribunal determined that the use was consistent with the objectives of the Mixed Use zone and therefore permitted.
The Tribunal was satisfied that the proposed development was consistent with the City of Fremantle Local Planning Scheme No 4 and the Fremantle Planning Strategy and would not prejudice the orderly and proper planning of the locality. The application for review was allowed, and planning approval was granted subject to conditions.

Introduction

Hampton 256 Pty Ltd (applicant) made an application for planning approval to the City of Fremantle (respondent or City) on 7 August 2009 for a change of use to 'Liquor Store', 'Showroom', 'Office' and 'Shop' and partial demolition and refurbishments to the existing building on No 256 (Lot 7001) Hampton Road, Beaconsfield (subject land).
The application to commence development was determined by the Planning Service Committee of the respondent at its meeting of 4 November 2009 and refused for the following reason:
1.The proposal is not consistent with, the objectives of the Mixed Use Zone clause 4.2.1(e)(i) of the LPS 4 which requires that development provide for a limited range of small scale retailing of goods and services and be consistent with the desired future character of the area, as expressed through the Strang Street Structure Plan (January 2005).
The applicant, on 25 November 2009, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.

Subject land

The subject land is more particularly described as (Lot 7001) Hampton Road, Beaconsfield being the land comprised in Certificate of Title Volume 2649 Folio 19 and is 5986 square metres in area. The subject land has frontage to three roads, and is located on the junction of Hampton Road, Culver Street and Naylor Street.
A large 'warehouse' style building with frontage to Hampton Road exists on the subject land. The building has two floor levels and is currently occupied by a fitness studio, a children's play centre and a dive shop. The existing building is generally in good structural condition. At present, there are three separate car parking areas located on the subject land; one located on the western side of the premises along Hampton Road and the other two on the eastern side of the premises, on two levels. The land rises from west to east allowing the first floor car park and tenancy to be accessed at grade from Naylor Street.

Proposed development

The proposal entails:
•change of use of the ground floor portion of the building to 'Liquor Store' (1619 square metres total floor space);
•change of use of the first floor portion to 'Showroom' and 'Office' (713 square metres and 1144 square metres respectively);
•construction of a new 'showroom' tenancy on the corner of Culver Street and Naylor Street to accommodate the existing dive shop that currently operates from the site (274 square metres in area);
•demolition of the single storey portion of the building located on the southern boundary of the site;
•construction of a new car parking area and reconfiguration of the existing car parking to provide a total of 139 car parking bays;
•modification to the existing building to provide an internal loading dock to the liquor store;
•replacement of the existing asbestos roof and erection of a feature entry statement at the front of the building; and
•internal refurbishment of the liquor store, office and showroom tenancies.

Planning Framework

The subject land is zoned 'Urban' in the Metropolitan Region Scheme and 'Development' under the City of Fremantle Local Planning Scheme No 4 (LPS 4 or Scheme).
The purpose of the Development zone is set out in cl 4.2.1(h) of the Scheme which states:
… to provide for future residential, industrial, commercial or other uses in accordance with a comprehensive structure plan or detailed area plan prepared in accordance with the provisions of the Scheme.
The permissibility of uses is determined by reference to the Zoning Table (Table 2), which refers to Note 2 for the 'Development zone'. Note 2 states:
Development and use of land is to be in accordance with an approved structure plan or detailed area plan prepared and adopted under clause 6.2. See also Schedule 11 in Part 12 for interim and additional requirements and also Schedule 14 for Development Plan requirements.
Provisions relating to special control areas are contained in Pt 6 of the Scheme. One of the special control areas identified is 'Development Areas' which are shown on the scheme map as 'DA' with a number and included in Schedule 11. The subject land is located in special control area 'DA 14 Strang Court Area Beaconsfield (designated by Mixed Use Zone)' (DA 14).
Clause 6.1.2 of LPS 4 provides that:
In respect of a special control area shown on a Scheme Map, the provisions applying to the special control area apply in addition to the provisions applying to any underlying zone or reserve and any general provisions of the Scheme.
The purpose of Development Areas is set out in cl 6.2.2 which states:
6.2.2Purpose of Development Areas
6.2.2.1The purposes of Development Areas are to:
(a)identify areas requiring comprehensive planning; and
(b)coordinate subdivision and development in areas requiring comprehensive planning.
6.2.2.2Schedule 11 describes the Development Areas in detail and sets out the specific purposes and requirements that apply to the Development Areas.
Clause 6.2.3.1 of LPS 4 requires that development of land within a development area is to comply with Schedule 11. Further, cl 6.2.3.2 requires that development of land within a Development Area is to generally be in accordance with any structure plan that applies to that land.
Clause 6.2.4.1 of LPS 4 provides that the local government is not to approve development of land within a Development Area unless there is a structure plan for the Development Area or for the relevant part of the Development Area. However, cl 6.2.4.2 states:
Notwithstanding clause 6.2.4.1, a local government may … approve the development of land within a Development Area prior to a structure plan coming into effect in relation to that land, if the local government is satisfied that this will not prejudice the specific purposes and requirements of the Development Area.
Schedule 11 of LPS 4 contains the following provisions relating to DA 14:
1.Structure plan is to be adopted to guide subdivision, land use and development prior to approval of development applications.
2.and investigation of potential site contamination to the satisfaction of the DEC.
Development applications received prior to adoption of a structure plan shall be assessed via the Mixed Use zone provisions of the Scheme. Applications for any form of residential development and subdivision applications should be deferred until the structure plan is adopted in order that servicing, open space provision, environmental remediation and other issues are resolved.
Notwithstanding the above, all development is to be as per the requirements of the Mixed Use zone.
There is currently no approved structure plan for DA 14 made pursuant to cl 6.2 of the Scheme. The Strang Street Structure Plan (SSSP) was prepared and adopted by the respondent in February 2005 but was not formally endorsed by the Western Australian Planning Commission (Commission) and has not progressed, as the City has not addressed the matters of concern raised by the Commission. At the hearing, the respondent informed the Tribunal that final endorsement of the SSSP was not imminent and may not occur. The respondent did not consider the SSSP to be a 'seriously entertained proposal' and accordingly no longer relevant. Notwithstanding this position, the Tribunal considers that the SSSP does inform the decision the Tribunal has to make and indeed, the planning experts notwithstanding their agreed position, referred to the SSSP on a number of occasions during the hearing.
As there is no structure plan for DA 14, pursuant to the provisions contained in Schedule 11, development applications are to be assessed via the Mixed Use provisions of the Scheme. The objectives for the Mixed Use zone are set out in cl 4.2.1(e) of the Scheme, which states that development shall:
i)provide for a limited range of light, service and cottage industry, wholesaling, trade and professional services, small scale retailing of goods and services (ie showrooms, cafes, restaurants, consulting rooms), small scale offices and administration, entertainment, residential at upper levels and recreation,
ii)ensure future development within each of the mixed use zones is sympathetic with the desired future character of each area,
iii)ensure that development is not detrimental to the amenity of adjoining owners or residential properties in the locality, and
iv)conserve places of heritage significance the subject of or affected by the development.
The uses referred to by the parties have the following use permissibility designations in the Mixed Use zone under Table 2 of the Scheme:
Liquor Store A
ShowroomA
OfficeP
ShopX
Industry service D
Clause 10.3 of the Scheme provides the authority for the Council to approve with or without conditions or refuse an application. Without limiting the scope of the discretion to determine an application, cl 10.2.1 of the Scheme sets out the matters to which due regard is to be given in the determination of a matter. The pertinent matters relating to this application are as follows:
•the aims, zoning objectives and provisions of the Scheme (cl 10.1(a));
•the requirements of orderly and proper planning (cl 10.2.1(b));
•any approved Statement of Planning Policy of the Commission (cl 10.2(c));
•any strategy adopted by the Council under the Scheme (cl 10.2(f));
•the compatibility of a use or development within its setting (cl 10.2(i));
•the preservation of the amenity of the locality (cl 10.2(o));
•the intensity and nature of the proposed use cl 10.2 (p));
•the relationship of the proposal to development on adjoining land or on other land in the locality (cl 10.2(w));
•whether access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles (cl 10.2(x));
•the amount of traffic likely to be generated and the probable effect on traffic flow and safety (cl 10.2(y));
•adequate provision has been made for the landscaping cl 10.2(ze);
•any relevant submissions received on the application (cl 10.2(zg)); and
•any other planning consideration (cl 10.2(zj)).
Clause 1.4.2 of the LPS 4 provides that the Scheme is to be read in conjunction with the Fremantle Planning Strategy. Further, cl 2.1.1 of the Scheme states that:
Except to the extent that the Fremantle Planning Strategy is inconsistent with this Scheme, determinations of the Council under the Scheme are to be consistent with the Fremantle Planning Strategy.

Issues

The following six principal issues arise for determination in relation to this matter:
1)To what extent is the proposed development consistent with the objectives of the Mixed Use zone of LPS 4.
2)Whether the proposed development is compatible with the desired and likely future character and amenity of the area.
3)Whether the proposed development is consistent with the desired distribution of retail facilities in the precinct.
4)Whether the existing dive shop is a nonconforming use under LPS 4, and if so, whether the proposed development for the dive shop is acceptable under LPS 4.
5)To what extent should the future development of the locality be influenced by the existing building and the size and configuration of the subject land holding.
6)Whether approval of the proposal is consistent with orderly and proper planning.
The Tribunal will address each issue in turn.

To what extent is the proposed development consistent with the objectives of the Mixed Use zone of LPS 4

Although 'Liquor Store' falls within the 'Entertainment Use Classes' in Table 2 of LPS 4, for the purposes of interpreting objective (e) i) of cl 4.2.1, the respondent considered the use to be 'retailing of goods' rather than 'entertainment' and argued that in order to be consistent with the objective, the use needed to be 'small scale'. The respondent also contended that the scale of the proposed showroom and office uses could not be considered to be 'small scale' and therefore not consistent with objective (e) i) of cl 4.2.1.
Ms Amanda Butterworth, a planning consultant who gave evidence for the respondent, applied objective (e) i) in the context of the site rather than the zone/development area and submitted that a liquor store of 1,619 square metres, an office of 1,144 square metres and a showroom of 713 square metres could not be considered to be small scale and as such did not meet the objective of the Mixed Use zone. Ms Butterworth submitted that in the context of liquor stores, the proposal would be considered to be a large liquor store that serviced the wider community and would be more appropriately located within the 'Commercial' zone. She did not consider a liquor store to be entertainment, although acknowledged that 'Liquor Store' is included in the 'Entertainment Use Classes' category contained in Table 2. On this point, Ms Butterworth argued that 'Restaurant' is also a use included in the 'Entertainment Use Classes' category of Table 2 and identified in the objective as a use that is 'small scale retailing of goods and services'. She concluded that the inclusion of a use in the 'Entertainment Use Classes' category did not necessarily equate to 'entertainment' as expressed in the objective.

The respondent contended that as the proposed development is not consistent with the objective of the Mixed Use zone, pursuant to cl 10.2.1(a) of LPS 4, which requires the objectives and provisions of the Scheme to be taken into consideration in the determination of an application, the application should be refused.
The applicant submitted that the terminology used in Schedule 11 DA 14 that being 'via' and 'as per', resulted in the application of the provisions of the Mixed Use zone providing guidance rather than being absolutely definitive in the same way as if the land was zoned Mixed Use. The applicant argued that the objectives for the Mixed Use zone are generic and apply to all Mixed Use zones within the City and that 'small scale' was intended to apply to the entire zone/DA area and was not site specific.
Mr Goff, a planning consultant engaged by the applicant to give evidence in these proceedings, considered the intent of objective was to ensure that mixed use areas did not develop into distinct precincts, such as the entertainment precinct in South Terrace, a major retailing centre or showroom based precinct such as Osborne Park. He submitted that the objective was open to interpretation and 'fuzzy around the edges'. He also argued that the nature of the use set it apart from other retailing activities, which he considered to be affirmed by the respondent inserting the use in the 'Entertainment Use Classes' category of Table 2. He also referred to the report prepared by the planning officers of the respondent that was presented at a council meeting (refer to pages 21A to 21K of Exhibit 3), highlighting that the officers did not have any concern regarding the office and showroom components of the proposed development.
Mr Pollard, Property Manager for Woolworths Ltd, considered 'scale' depended on context and submitted that in the context of a shopping centre anchored by a supermarket or a department store, a stand alone operation such as the one proposed would be considered to be small scale, whereas compared with a speciality shop in a shopping centre it would be considered large scale. He did agree that in the context of liquor outlets, the proposal would be considered to be a large liquor store.
The Tribunal does not subscribe to either view. The Tribunal considers the objective to be referring to the type of retailing of goods and services and not the floor area of the proposed activity. The Tribunal in interpreting the objective (e) i) of cl 4.2.1 places reliance on the definition of 'ie.', which is defined in The Macquaire Dictionary (Macquarie, Sydney 4th Edition, 2005) at page 709 as follows:
that is: apparel, i.e., clothing [Latin id est]
In this instance, the objective is defining 'small scale retailing of goods and services' as 'showrooms, cafes, restaurants, consulting rooms'. The use of 'ie' is not considered to be an exhaustive list but rather to provide an indication of acceptable uses. There is no contest that a 'Liquor Store' is a commercial use involving retailing of goods and that it is an 'A' in the Mixed Use zone. In reviewing the list of uses described in the objective, such as light industry, service and cottage industry etc, the Tribunal considers 'Liquor Store' to more appropriately fit within 'small scale retailing of goods and services'. Given this finding, the Tribunal considers the use to be consistent with objective of (e) i) of cl 4.2.1 of the Scheme.
As to the showroom and office component of the application, the Tribunal makes the following findings. Showroom use is 'small scale retailing of goods and services' and is therefore consistent with objective (e) i) of cl 4.2.1 and capable of approval as 'showroom' is designated as an 'A' in the Mixed Use zone in Table 2. Office is a designated as a 'P' use in the Mixed Use zone and Note 2 contained in cl 4.3.3 of the Scheme states:
The Council will not refuse a 'P' use because of the unsuitability of the use for the zone but may impose conditions on the use of the land to comply with any relevant development standard or requirement of the Scheme, and may refuse or impose conditions on any development of the land.
The Scheme clearly indicates that a 'P' use cannot be refused because of the unsuitability of the use for the zone and therefore the scale of the office component in this respect, is irrelevant.

Whether the proposed use and development is compatible with the desired and likely future character and amenity of the area

Both planning experts agreed that the SSSP was not a seriously entertained proposal and that there was no planning document that gave a clear indication as to the future desired character of the area. Although, Ms Butterworth considered that the SSSP could be used to inform the Tribunal as to the types of land uses that could be considered suitable within the area, both planning experts referred to the Mixed Use zone provisions and Table 2 of LPS 4 to indicate the types of uses that could be approved within the area. This argument was reinforced by reference to the Fremantle Planning Strategy, which recommended that the area 'retain a Mixed Use zoning in order that commercial, light and cottage industries can continue to exist'.
Ms Butterworth did not consider the proposal to be compatible with the desired and likely future character of the area based on her interpretation of the objective (e) i) of cl 4.2.1 of the 'Mixed Use' zone (see para 31 above).
Clearly, the area is in transition evolving from light industrial uses to a mix of commercial and residential uses. The Scheme contemplates that this area requires comprehensive planning and incorporates it within DA 14, with a default position that development, excluding residential, is to be in accordance with the Mixed Use zone prior to the adoption of a structure plan. This default position is consistent with the Fremantle Planning Strategy, which no doubt informed the provisions of the Scheme relating to area.
Although the SSSP is not a seriously entertained proposal, it does assist in informing the Tribunal as to possible land use scenarios for the area. The SSSP envisaged consolidation of the commercial node fronting Hampton Road and redevelopment of the balance of the area for light industry, mixed development and residential purposes. Both planning experts agreed that the desired and likely future character of land fronting onto Hampton Road would be commercial and the remaining land developed with a mix of commercial and residential. The use of the existing building for a mix of commercial uses would be consistent with the objectives of the Mixed Use zone and the Fremantle Planning Strategy and compatible with the contemplated future character of the area.
During the course of the hearing, the Tribunal canvassed whether approval of the use of the existing building would prejudice the future planning of DA 14 and therefore, if it would be appropriate to impose a condition limiting the operation of any consent to a limited period. Mr Goff considered such a condition to be tantamount to a refusal and unnecessary as the proposal did not conflict with the Scheme and would not jeopardise future planning of DA 14, as the subject land was an isolated site located on the extremities of the development area. Ms Butterworth agreed that in the short term the use of the building as proposed would not prejudice the implementation of a structure plan for DA 14, but was unsure of the long term implications and indicated that such a condition may be of some merit. The evidence before the Tribunal did not suggest the overall planning of DA 14 would be compromised given the existence and location of the building within the development area and therefore the need for the imposition of a condition limiting the operation of any consent to a limited period is considered to be unnecessary.

Whether the proposed use and development is consistent with the desired distribution of retail facilities in the precinct

The respondent contended that a stand-alone liquor store of the size and scale proposed amounted to a new competing retail development located outside of the established hierarchy of local and neighbourhood retail centres in the vicinity and was therefore contrary to State Planning Policy 4.2 Metropolitan Centres Policy Statement for the Perth Metropolitan Region (SPP 4.2), draft State Planning Policy Activity Centres for Perth and Peel and the Fremantle Planning Strategy. The respondent submitted that the liquor store had the potential to undermine existing centres (although no evidence was adduced) and would not be consistent with the desired distribution of retail facilities in the locality. The respondent accepted that the proposed development was not a shopping centre but argued that the scale of the operations of the liquor store was contrary to the objective of the 'Mixed Use zone of the Scheme, which was interpreted as 'restrict[ing] retail development in Mixed Use zones to small scale'. The respondent did indicate that if the floor space of the liquor store was limited to 'small scale' then the use would be acceptable.
The applicant asserted that the nature of the liquor store set it apart from other retail activities, which it submitted appears to be reflected in the Scheme as Table 2 designates 'Liquor Store' as an 'A' use within the Mixed Use zone and 'Shop' as an 'X' (not permitted) use. Mr Goff argued that as a consequence of the Scheme, retailing is generally not able to be located within the Mixed Use zone and therefore, there would be a limited range of retailing activities occurring within the zone which would be unlikely to affect the distribution of retailing generally. He also pointed out to the Tribunal that if the liquor store was to discontinue it could not be replaced with a large scale retail operation, such as a supermarket, as 'Shop' was an 'X' use of the Mixed Use zone. He also referred to the range of uses that could be approved in the Mixed Use zone and considered that none of the uses would threaten the core operations of the local shopping centres and reasoned that the distribution of retail facilities in the locality would be maintained.
The Tribunal prefers the evidence of Mr Goff as his arguments were measured and reasoned. The Scheme clearly distinguishes the use class 'Liquor Store' from other 'Commercial' uses and more particularly prohibits 'Shops' within Mixed Use zone in order to restrict the spread of retail development outside of the local centres. The Tribunal agrees that a liquor store is not in direct competition with a local shopping centre and unlikely to jeopardise the continuation or the provision of retail floor space within the locality.

Whether the existing dive shop is a nonconforming use under LPS 4, and if so, whether the proposed development for the dive shop is acceptable under LPS 4

Ms Butterworth, in her witness statement, argued that the existing dive shop for the purposes of classifying the use was a 'shop' and therefore had nonconforming use rights. The respondent had no objection to the relocation of the shop but opposed the increase in floor space from 240 square metres to 274 square metres, as an increase in shop floor space was not considered to be consistent with the Mixed Use zone.
However, in closing Ms Butterworth referred to the decision of the Tribunal in Joondalup Gate Pty Ltd and City of Joondalup [2008] WASAT 47 [42][43] and suggested that it was open to the Tribunal to consider the dive shop to be a different use class as she accepted that a dive shop is not the type of shop that would ordinarily be expected to be located in a shopping centre and therefore may reasonably fit within another use class or perhaps considered as a use not listed.
Mr Goff considered the characteristics of the business to be akin to a 'service industry' and likened it to a small electronic shop where customers bring their items for repair. He did not consider the use classification of 'Shop' to be appropriate as the range of activities undertaken at the premises were more than that described in the 'Land Use Definitions of Schedule 1' (Sch 1) of the Scheme. The Tribunal was told that the range of activities of the dive shop included the hire, sale and display of diving equipment, safety checks on equipment, repairs, refilling of air bottles, training rooms for educational purposes and bookings taken for dive charter boats. Another characteristic of the business that was identified as distinguishing it from a 'Shop' was that the business did not rely on exposure or proximity to other shops.
A 'Shop' is defined in Sch 1 as:
premises used to sell goods by retail, hire goods or provide services of a personal nature (including a hairdresser or beauty therapist) but does not include a showroom or fast food outlet.
It was apparent from the evidence that the colloquial expression 'dive shop' informed the classification of the use. The Tribunal does not consider the activities of the use as described falls within the strict definition of 'Shop' or that of 'Industry service'. Although the business shares elements common to those use classifications, it is in essence something more and can not reasonably be determined as falling within the type, class or genus of activity of any other use category contained in Table 2.
The evidence before Tribunal suggests that the use per se is not objectionable within the Mixed Use zone and that the activities carried out at the premises are consistent with the objectives for that zone. Pursuant to cl 4.4.2 of the Scheme, the Tribunal determines that the use is consistent with the objectives of the Mixed Use zone and is therefore permitted.

To what extent should the future development of the locality be influenced by the existing building and the size and configuration of the subject land holding

The applicant submitted that private infrastructure investment should be taken into account as a matter of orderly and proper planning in considering the future of a development area. It was asserted that it would be unrealistic to contemplate the total redevelopment of this land as the existing building was of sound construction and unlikely to be demolished in the foreseeable future. In addition, the applicant submitted that the retention and recycling of the existing building was consistent with the principles of sustainability and should be a consideration in the determination of this matter.
Ms Butterworth accepted that the existence of the building was a consideration amongst many factors to be considered in the determination of this matter. She conceded that there should be an acknowledgment of the existing structures when considering future planning and that it is more sustainable to use an existing building as against demolishing that building and constructing a new building, but argued that this should not unduly constrain the future objective of the development area.
The Tribunal agrees that the existence of the building on the subject land, its condition and ability to be converted for an alternate use are relevant factors to be taken into consideration in the determination of this application, although they are not determinative.

Whether approval of the proposal is consistent with orderly and proper planning

The respondent contended that in having regard to the abovementioned issues, the proposed development would not be consistent with orderly and proper planning and warrants refusal of the application. The primary focus of the respondent in regard to this issue related to the proposed development not satisfying the objective of the Mixed Use zone as the uses were not considered to be 'small scale'. As the Tribunal has expressed above, the respondent has misinterpreted objective (e) i) of cl 4.2.1 and as such, their argument is flawed. Given that the Tribunal finds that the proposed uses are consistent with the objectives of the Mixed Use zone and that the development is compatible with the desired and future character and amenity of the area and will not adversely affect the distribution of retail facilities in the locality, the Tribunal is satisfied that approval of the development is consistent with orderly and proper planning.

Conclusion

For the above reasons, the Tribunal is satisfied that the proposed development is consistent with the LPS 4 and the Fremantle Planning Strategy and will not prejudice orderly and proper planning of the locality and as such, planning approval should be granted, subject to conditions.

Conditions

As required by direction of the Tribunal, the respondent prepared 'without prejudice' draft conditions to be imposed if the Tribunal considers that approval of the application, subject to conditions is appropriate. The suggested conditions were accepted by the applicant.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 4 November 2009 to refuse planning approval for the change of use to liquor store, showroom, office and shop, partial demolition, and refurbishments to the existing building at No 256 (Lot 7001) Hampton Road, Beaconsfield, is set aside and a decision is substituted that planning approval is granted for change of use to liquor store, showroom, office and dive centre, partial demolition, and refurbishments to the existing building at No 256 (Lot 7001) Hampton Road, Beaconsfield, as detailed on the site plan dated 23 September 2009 and elevation plans dated 7 August 2009, subject to the following conditions:
(i)Prior to commencement of the development, the manoeuvrable areas for car bays and vehicle aisles shall be designed in accordance with Australian Standard AS2890.1 to allow vehicles to turn in a single turning movement and exit to the street in a forward gear.
(ii)Prior to occupation of the development, vehicle crossovers shall be constructed in either paving block, concrete or bitumen and thereafter maintained, and any redundant crossovers and kerbs shall be removed and the verge reinstated to the satisfaction of the Chief Executive Officer and at the expense of the applicant.
(iii)Prior to occupation of the development, the car parking and loading area(s), and vehicle access and circulation areas shown on the approved plans shall be constructed, drained and line marked to the satisfaction of the Chief Executive Officer.
(iv)Prior to occupation of the development, all airconditioning plant, satellite dishes, antennae and any other plant and equipment to the roof of the building shall be located or screened so as not to be visible from beyond the boundaries of the development site to the satisfaction of the Chief Executive Officer.
(v)Prior to occupation of the development, stormwater drainage works must be completed in accordance with the approved plans to the satisfaction of the City of Fremantle.
(vi)All waste bin collection shall take place from within the enclosed loading area to the satisfaction of the City of Fremantle.
(vii)All stormwater shall be retained and disposed of on site.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER