HOMEBASE MANAGEMENT PTY LTD and CITY OF SUBIACO
[2016] WASAT 139
•6 DECEMBER 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HOMEBASE MANAGEMENT PTY LTD and CITY OF SUBIACO [2016] WASAT 139
MEMBER: MR M SPILLANE (SENIOR MEMBER)
MR P DE VILLIERS (MEMBER)
HEARD: 30 AND 31 AUGUST AND 1 SEPTEMBER 2016
DELIVERED : 6 DECEMBER 2016
FILE NO/S: DR 65 of 2016
BETWEEN: HOMEBASE MANAGEMENT PTY LTD
Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning Development application Appropriate land use Adverse planning precedent State planning policy
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 44
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 67, cl 67(u)
Planning and Development Act 2005 (WA), s 26
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application for review allowed and conditional approval granted
Summary of Tribunal's decision:
In October 2015, an application was made to the City of Subiaco for approval to establish a fruit and vegetable/gourmet grocery retail use under the name of Growers Lane at the Homebase Centre which is located on the corner of Salvado Road and Harborne Street, Subiaco.
In February 2016, the City of Subiaco refused that application and Homebase Management Pty Ltd sought a review of the decision in this Tribunal.
Following mediation, the City of Subiaco reconsidered the proposed development on 28 June 2016 when it resolved to affirm its previous decision to refuse approval.
The matter came before the Tribunal on 30 and 31 August and 1 September 2016 for final hearing following which the Tribunal being satisfied that the proposed development was an appropriate and acceptable land use at the Homebase Centre and adequately addressed traffic and parking issues, granted approval for the development subject to conditions.
Category: B
Representation:
Counsel:
Applicant: Ms B Moharich
Respondent: Mr C Slarke
Solicitors:
Applicant: Moharich and More
Respondent: McLeods
Case(s) referred to in decision(s):
Castella Pty Ltd and Quebec Nominees Pty Ltd and City of Canning [2012] WASAT 47
Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
Goldin v Minister for Transport (2002) 121 LGERA 101
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls and Western Australian Planning Commission [2005] WASAT 40
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 13 October 2015, an application was lodged with the City of Subiaco (respondent, Council or City) for development approval with respect to the use of two tenancies at 20 and 21 Subiaco Homebase Centre (Centre or premises). The Centre, which is located on a site bounded by Salvado Road to the north, Harborne Street to the west and Roydhouse Street to the southeast, comprises a showroom/large format tenancy centre and office building.
The application sought a change of use from the existing 'commercial tenancy/showroom' to the establishment of a 'fruit and vegetable/gourmet grocery retail' use at the premises.
On 23 February 2016, the respondent resolved to refuse to grant approval for the proposed development. In refusing the development the Council provided reasons which included the following:
•the need to consider any potential loss of any community service or benefit resulting from the development;
•the land commonly known as 'Subi Centro' was never envisaged as an area designated for retail proliferation; and
•it had not been demonstrated that key issues associated with potential traffic impacts and car parking provisions had been adequately addressed.
On 11 March 2016, an application was made to the Tribunal seeking a review of that decision.
Following mediation in the Tribunal, the applicant provided the respondent with additional information in support of the application and pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the respondent reconsidered the proposed development on 28 June 2016 when, contrary to the recommendation of Council officers, it resolved to affirm its previous decision to refuse approval.
Site and Locality
The subject site comprises Lot 810 which has a total area of 7.1986 hectares. This Lot is divided into three separate land parcels. The Centre is located at 55 Salvado Road and is a triangular portion of land comprising 3.3649 hectares and, as outlined above, is bounded by Salvado Road to the north, Roydhouse Street to the southeast and Harborne Street to the west.
The subject site is owned by the respondent and leased to the applicant. The current head lease finishes on 31 December 2020 with two further options of five years taking the total potential lease period to 31 December 2030.
The subject site contains the existing Centre, which comprises a range of showroom type uses and associated car parking. The site was developed in the 1980s as a showroom focused on outlets associated with home improvements which now includes a Bunnings showroom and storage yard. More recently a change in tenure type has seen more varied tenancies such as City Farmers and a veterinary clinic also located on the site.
The physical development of the site comprises a substantive linear building located adjacent to the Roydhouse Street boundary, and two independent buildings; an office building located on the corner of Salvado Road and Harborne Street and the other located centrally on Harborne Street.
The development the subject of this review is to be located in the northern section of the independent building located centrally on Harborne Street. This building is orientated towards the east, facing the large car park located in the middle of the site. Between this building and the Harborne Street boundary is a separate parking and service area.
To the west of the subject site on the opposite side of Harborne Street is a large selfstorage facility. To the north across Salvado Road are established residential and office uses while to the south is the Subiaco Redevelopment Area generally comprising residential uses to the southwest and mixed use development to the southeast.
The Proposed Development
The proposed development comprises a fruit and vegetable grocery business (Growers Lane) comprising a butcher, a bakery, gourmet deli, the sale of preprepared fish, shell fish and other seafood products, fruit and vegetables, dry gourmet goods, a juice bar/bubble tea and news stand together with associated uses which include cool rooms, an office, a storeroom, a prep room and a staff room.
Trading will occur between 7 am and 7 pm seven days a week. No structural changes are proposed to the existing premises. Access and egress to the premises will be via the existing crossovers on Harborne Street and Salvado Road. Customer parking will be provided in the area immediately in front of the subject premises while staff parking and servicing will take place in the parking area located between the existing premises and the Harborne Street boundary.
Planning Framework
The subject site is zoned 'Commercial/Residential' under the provisions of the City of Subiaco Town Planning Scheme No 4 (TPS 4). The proposed development falls within the use class of 'Shop' which is a 'D' use within the Commercial/Residential zone.
A 'D' use in TPS 4 means:
… the use is not permitted unless the local government has exercised its discretion by granting planning approval taking into consideration whether the nature of the use is consistent with the planning objectives of the Scheme and the planning policies with respect to that zone[.]
Clause 44 of TPS 4 sets out the aims and objectives for the Commercial/Residential zone which include:
(1)to develop an area with a strong recognisable identity characterised by development of a mixture of high quality commercial and residential accommodation;
…
(5)to encourage pedestrianfriendly development which is orientated to the street in the traditional manner, enabling surveillance of both the street and pedestrian areas;
(6)the protection and enhancement of the amenity and general environmental standards of existing and future development within and adjoining this zone[.]
Clause 67 of Schedule 2 of Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) sets out matters to which the local government, or this Tribunal on review, is to have due regard in considering an application for development approval. In the context of the current review these include the following relevant provisions:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(h)any structure plan, activity centre plan or local development plan that relates to the development;
…
(s)the adequacy of
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
(u)the availability and adequacy for the development of the following
…
(iv)access for pedestrians and cyclists (including end of trip storage, toilet and shower facilities);
…
(v)the potential loss of any community service or benefit resulting from the development other than potential loss that may result from economic competition between new and existing businesses;
(w)the history of the site where the development is to be located[.]
State Planning Policy 4.2 Activity Centres for Perth and Peel (SPP 4.2)
The main purpose of this policy is to specify broad planning requirements for the planning and development of new activity centres and the redevelopment and renewal of existing centres in Perth and Peel. The objectives of the policy include:
•Plan activity centres to support a wide range of retail and commercial premises and promote a competitive retail and commercial market.
•Maximise access to activity centres by walking, cycling and public transport while reducing private car trips.
Under the 'Activity Centres Hierarchy' established in Table 2 of SPP 4.2, Subiaco is designated as a secondary centre.
Clause 5.2.1 of SPP 4.2 sets out provisions dealing with the '[d]iversity and intensity of activity', which include:
(1)Retail, commercial, health, education, entertainment, cultural, recreational and community facilities and higher-density housing should be concentrated in centres in a compact urban form. …
…
(3)Within larger centres, retail and commercial land uses should be distributed to enable development opportunities on various land parcels in a compact urban form[.]
Activity centre functions, typical characteristics and performance targets are set out in Table 3 of SPP 4.2 and for 'Secondary Centres' states:
Secondary centres share similar characteristics with strategic metropolitan centres but serve smaller catchments and offer a more limited range of services, facilities and employment opportunities. They perform an important role in the city's economy, and provide essential services to their catchments.
The implementation provisions included in cl 6 of SPP 4.2, among other things, include a requirement for the preparation of activity centre structure plans and district and local structure plans.
The respondent has prepared a number of such plans over time, two of the more relevant being:
City of Subiaco Local Planning Strategy (Planning Strategy)
This Planning Strategy was prepared by the respondent in 2014 and in regard to the 'Subiaco Secondary Centre' the strategy states:
The City recognises that the area currently zoned 'Town Centre' is the primary retail, commercial and entertainment centre within the municipality. Its premier role will not be allowed to be undermined, which could occur if inappropriately largescale developments were to be permitted in other areas within the municipality. (Emphasis added)
Subiaco Activity Centre Plan (Activity Centre Plan)
A Draft Activity Centre Plan was prepared in 2016 as an activity centre structure plan to satisfy the requirements of SPP 4.2 and was prepared in accordance with the LPS Regulations and seeks to provide a planning framework for managing land use and development within the Subiaco Town Centre.
The site the subject of this review is located within the northwest corner of the activity centre boundary and within an area described as the 'Centro Code' area, and is identified for mixed use.
The corner of the site facing Salvado Road and Harborne Street is identified as a landmark/threshold with the southwest section of the current Homebase site facing Harborne Street identified as a public focus/park. A multidecked public parking area is designated centrally on the site facing Roydhouse Street.
The land use table included in the Activity Centre Plan designates shop as a 'D' use within the 'Centro Code' area.
The objectives for the 'Centro Code' area are set out as follows:
The Centro Code is intended to develop as mixed use areas comprising primarily permanent residential accommodation and office / business activities, together with a range of complementary uses. Ground floor development shall generally be non-residential with upper floors containing a mix of residential and non-residential uses in a complementary manner.
The Activity Centre Plan suggests that '[t]he 'Homebase site' is included in the Activity Centre for the purposes of providing high level direction and potential civic areas but being subject to a separate detailed planning process to guide its future development.'
The issues
The issues in this matter were agreed between the parties as:
1)Is the proposed development an appropriate land use in the Homebase Centre?
2)Does the proposed development adequately address traffic and parking issues?
The Tribunal will deal with each of these matters in turn.
Is the proposed development an appropriate land use in the Homebase Centre?
The respondent submitted that the provisions of TPS 4 and its associated policies are of little assistance with respect to the Centre and argued that the current zoning of the Centre and its existing design are no longer appropriate, and that further planning for the future use and redevelopment of the Centre is needed.
In this context the City contends that the Homebase site is a poor location for retail business in the nature of the proposed Growers Lane because of a combination of:
a)its isolation from the Subiaco Town Centre and neighbouring residential areas;
b)its location in a purpose built 'showroom' complex;
c)the incremental adverse economic impact it will have on the established Subiaco Town Centre; and
d)the undesirable precedent it would set.
The joint witness statement of the retail experts, Michael Chappell (for the applicant) and Anthony Shrapnel (for the respondent), addressed the potential impact of the proposed development on retail businesses within the City of Subiaco. In this statement Mr Chappell and Mr Shrapnel agreed 'that the impact of the Growers Lane will be negligible and will not affect the viability of other retail businesses within the City of Subiaco.'
However, Mr Shrapnel also gave planning evidence for the respondent and argued that a gourmet grocer would not be a natural complement for the other existing uses in the Centre.
He submitted that the current proposal infringes on three of the basic planning principles established by SPP 4.2. Namely that uses should form an integral component of areas characterised by a:
•compact urban form;
•pedestrian-friendly urban environment; and
•walkable centre with connectivity to public transport and reduced car dependency.
In view of these criteria Mr Shrapnel argued that the current site, at 680 metres from the station, falls outside the readily walkable component of the Activity Centre (as described in the Activity Centre Plan) and would be better located in commercial/residential zones on the Hay Street or Rokeby Road approaches to the town centre.
While these areas have the same zoning as the Homebase site they are very different in nature to the subject site. Mr Shrapnel argued that the existing Centre is working well as a car based bulky goods showroom development and should not be disturbed prior to its comprehensive redevelopment. These factors lead Mr Shrapnel to the conclusion that 'the City of Subiaco should somehow amend its Scheme to remove the discretion to permit shops in the Homebase complex'.
While the case put forward by Mr Shrapnel has some merit in terms of the planning instruments and their internal consistency it raises some questions for the Tribunal.
The Tribunal is required to determine the application before it and potential alternatives sites, even if they were available, cannot of itself be a determining factor. In addition, it is difficult to support an argument which would effectively quarantine the site for the next fourteen years.
However, more problematic is the interpretation which Mr Shrapnel seeks to give to SPP 4.2 and the implied suggestion that the explicit statutory provisions of TPS 4 should be given little weight in the current review.
SPP 4.2 is a state planning policy made under s 26 of the Planning and Development Act 2005 (WA). It was gazetted on 31 August 2010.
Clause 67 of the LPS Regulations requires that the local authority, or the Tribunal on review, shall have due regard to 'any approved State planning policy'.
The respondent argued in closing that SPP 4.2 should be given substantial weight and the evidence provided by the two planning experts called by the respondent, Mr Shrapnel and Mr Algeri, also placed considerable weight on SPP 4.2.
The 'Introduction and Background' to SPP 4.2 sets out its purposes as follows:
…
The main purpose of this policy is to specify broad planning requirements for the planning and development of new activity centres and the redevelopment and renewal of existing centres in Perth and Peel. It is mainly concerned with the distribution, function, broad land use and urban design criteria of activity centres, and with coordinating their land use and infrastructure planning.
Other purposes of the policy include the integration of activity centres with public transport; ensuring they contain a range of activities to promote community benefits through infrastructure efficiency and economic benefits of business clusters; and lower transport energy use and associated carbon emissions[.]
In addressing the application of SPP 4.2, cl 3 states:
This policy applies throughout the Perth and Peel regions to guide the preparation and review of local planning strategies, schemes and structure plans; and development control. (Emphasis added)
The issue of the role of SPP 4.2 was addressed by the Tribunal in Castella Pty Ltd and Quebec Nominees Pty Ltd and City of Canning [2012] WASAT 47 (Castella) at [41] [42] as follows:
Mr Allerding gave evidence that the proposal was consistent with the objectives of Directions 2031 and SPP 4.2 in terms of the promotion of employment opportunities and the encouragement of diverse land uses. It was his opinion that these broad level documents establish the objectives and principles to be articulated by local government through detailed standards and requirements in the local planning framework, and as such 'are not of direct relevance or application to the consideration of the proposed development or planning applications in general'.
The Tribunal agrees with Mr Allerding in that these strategic documents contain broad strategic objectives, principles and provisions which would not be expected to be applied to each individual development but to entire areas, and in this case, the Cannington strategic metropolitan centre[.]
It is noted that counsel for the respondent in closing submissions argued that Castella could be distinguished from the present case in that in Castella:
… there was some sort of a contest between the objectives of an existing planning policy, or structure plan, and the broader objectives referred to in SPP4.2 and, of course, the local document being an amination of the broader policy had to be the more important in that context.
But here, we're in slightly different territory. …
And that leaves us in a position where if there's not a vacuum of planning documents then at least the documents which exist, either in final or draft form, leave a lot to be desired. …
So the structure planning is relevant, but what it ultimately says is that we need further detailed planning and there's going to be a comprehensive redevelopment at that site and changes of land use permissibility. … So we're in a rather different position to Castella where there was a document at a local level which dealt with what should be happening. Here we just don't have that. (T:37;01.09.16)
However in the Tribunal's view in the context of the current case, to rely on the provisions of SPP 4.2 in the review of an application for a change of use for two tenancies (comprising 700m²) in an existing development would constitute the use of SPP 4.2 for a purpose for which it was not intended.
Both the planning experts called by the respondent placed considerable emphasis on the need for a shop to be located in a pedestrianfriendly environment. Mr Algeri suggested it was important to 'ensure that shopretail uses, such as the one proposed, are located in a pedestrian friendly environment' while Mr Shrapnel argued gourmet grocery outlets 'are far too important … to allow them to be arbitrarily scattered about in carorientated, awkwardlywalkable, showroomwarehouse complexes …'.
Clause 67(u) of the LPS Regulations requires due regard to be given to the availability and adequacy of access for pedestrians and cyclists. Both Mr Algeri and Mr Shrapnel argued that there are major inadequacies in regard particularly to pedestrian access and that this should preclude any approval for the proposed development.
The viewing of the site confirmed a number of concerns with the current arrangements for pedestrian access to the subject site. There was no footpath on the southern side of Salvado Road, access to the subject site from the Harborne Street footpath was compromised (requiring access up the vehicle access way), the Harborne Street pedestrian environment had no points of interest and the pedestrian environment on Roydhouse Street was compromised by the both the change in level on the northwestern side and the current lack of pedestrian access to the development from that street.
However, the evidence from the planning experts was that most customers would access the subject site by vehicle. In addition, Mr Shapnel suggested that any likely pedestrian access was likely to come from new residential development to the south of the subject site and while pedestrian access into the subject site from Harborne Street is clearly an issue, this street does have adequate pedestrian paths on both sides and a number of pedestrian cross points.
Thus while the pedestrian environment is certainly not optimal the Tribunal finds that the direction from which pedestrian are likely to access the subject site does have adequate linkages to the broader town centre pedestrian network.
In addition, Mr Shrapnel for the respondent raised the issue that there is potential for the precedent of approving the Growers Lane proposal to lead to additional retail developments at the Centre and he argued that it would be inappropriate to locate any retail uses on the subject site prior to its redevelopment.
This view would appear to be held despite the fact that 'Local Shop' is a 'P' or permitted use in TPS 4 and is defined as:
… a shop in which the only goods offered for sale are a combination of foodstuffs, toiletries, stationery, or goods of a similar domestic nature intended for the daytoday consumption or use by persons living or working in the locality of the shop, and may include the preparation and [sale] of food for consumption on the premises where this is incidental to the predominant use of the land.
As outlined earlier the current application has been classified as 'Shop' which is a 'D' or discretionary use in TPS 4 and is defined as:
any building wherein goods are kept, exposed or offered for sale by retail, or within which services of a personal nature are provided (including a hairdresser, beauty therapist or manicurist) but does not include a showroom, fast food outlet, any premises involving the sale of petrol, or any other premises specifically defined elsewhere in this part.
The respondent relying on cl 5.6.1 of SPP 4.2 also submitted that in general bulky goods retailing is unsuited to the walkable catchment, or the core of activity centres given their size and car parking requirements, low employment densities and the need for freight vehicle access. In arguing the subject site is best suited to bulky goods retailing the respondent relies on a view that the subject site is an edgeof centre site integrated with, but not within, the walkable catchment or core activity centre precincts.
While this position is in principle reasonable, on the evidence before it in this matter, the Tribunal is satisfied as stated above that while the pedestrian environment is not optimal the subject site does have adequate linkages to the broader town centre pedestrian network. More importantly, the subject site will more than adequately fall within a walkable catchment for the residents of the new residential development to the south of the subject site likely to patronise the proposed development.
If the respondent is of the view that in the period prior to the comprehensive redevelopment of the subject site there is a need for an interim management strategy it is open to the respondent to either introduce an amendment to TPS 4 or to establish a local planning policy or both.
Having regard to the small scale of the proposed development, the fact that retail uses are clearly envisaged in the current zoning of the subject site, and the evidence provided on the pedestrian environment of the subject site and the locality, the Tribunal finds that the proposed Growers Lane development constitutes an appropriate and acceptable use within the Centre.
Does the proposed development adequately address traffic and parking issues?
In regard to traffic and related issues the respondent submitted:
a)there are concerns with all of the current access points to the Centre, particularly regarding compliance with the relevant Australian Standard (and crash records);
b)there are no, or no adequate, pedestrian and cycle paths linking the Centre to external road infrastructure;
c)the cumulative impact of the Growers Lane development with the Coles/Target development is forecast to result in significant queueing and delays on the Harborne Street approaches (both North and South) to Salvado Road, and the Salvado Road westbound right turn into Harborne Street. The consequence of these delays will be that access driveways to the Centre will be blocked during peak times;
d)the cumulative effect of the Growers Lane development with the Coles/Target development is forecasted to increase traffic on Centro Avenue, which will result in lengthy queues and blocking of the roundabout at Centro Avenue/Juniper Bank Way/Roydhouse Street;
e)the increased traffic at Centro Avenue will result in unacceptable increased delays for cyclists/pedestrians on the shared path crossing Centro Avenue at Roberts Road; and
f)there are no disabled car parking bays approximate to the Growers Lane development, no bicycle facilities provided, and the design of the existing car parking bays does not comply with TPS 4.
Mr Wilkins, the traffic expert for the respondent argued that:
•The trip generation methodology provided by the applicant significantly underestimated the net impact of the proposed development;
•The level of the transport assessment provided by the applicant is, in his view, less than that appropriate for the subject site;
•There are significant differences in methodology, application and assessment of statutory parking provisions. In his submission there is an undersupply of car parking for the development;
•Parking bays within the existing parking area are 2.5 metres wide while TPS 4 requires a width of 2.6 metres;
•There is no provision of parking bays for people with disabilities or cycle parking; and
•There is a significant lack of pedestrian and cycle facilities within the subject site and in no pedestrian facilities linking external paths to the site.
The substantive matters in contention between Mr Wilkins, the traffic expert called by the respondent, and Mr Baltic, the traffic expert called by the applicant, are:
•Whether a full Transport Impact Assessment, as set out in Table 1 of Volume 4 - 'Individual Developments' of the Western Australian Planning Commission's, Transport Impact Assessment Guidelines (2016) (TIA Guidelines), is required?
•Whether there are additional issues associated with current access arrangements to the subject site which need to be addressed in assessing the application?
Whether a full Transport Impact Assessment is required?
Mr Wilkins submits that traffic and parking issues should be considered in the context of guidance provided in the relevant volumes of the Western Australian Planning Commission's, Transport Assessment Guidelines for Developments (2006) (Guidelines).
Mr Baltic argues that the Guidelines are not directly applicable in this case as the proposed development is not located on (or takes access from) 'Blue Roads' or 'Red Roads', or is likely to be referred to the Department of Planning.
In reaching this conclusion, Mr Baltic relies on the Instrument of Delegation (Del 2015/02) 'Powers of Local Governments and Department of Transport Metropolitan Region Scheme' gazetted on 18 December 2015 which in the notes to Table 3 states:
In determining applications under this delegation, local governments shall have due regard to relevant WAPC and MRWA policy and guidelines, including but not limited to the Commission's D C Policy--5.1 Regional Roads (Vehicular Access), the Transport Assessment Guidelines for Developments, and MRWA Driveways Policy, which set out the principles and requirements to be applied when considering proposals for vehicle access to or from developments abutting certain categories of regional roads.
However, the TIA Guidelines in Volume 1, Section 4 under the heading 'Structure of the Guidelines' a copy of which was handed up at the hearing states:
Volume 4 is generally targeted at transport planning professionals. It provides detailed technical advice on the scale and content of the TIA [Transport Impact Assessment] that should be submitted to the approving authority in support of an individual development application approval.
The Tribunal prefers the evidence of Mr Wilkins on this point and finds that the Guidelines are relevant to the current review.
In applying the Guidelines, Mr Wilkins submitted that '[a] more detailed Transport Assessment is required because the proposed development is very likely to generate additional peak hour traffic to a level that is considered "High Impact" under the WAPC Best Practice Guidance'.
The Guidelines - Volume 4 establish at Table 1, parameters for deciding the level of assessment to be applied. The Table suggests that Food retail/Shopping centres with a significant food retail content over 1000m² of gross floor area should be considered high impact. While the current proposal comprises 700m², Mr Wilkins submits that as peak hour traffic generation is likely to exceed 100 vehicle trips in the peak hour a High Impact Assessment should be required.
At the hearing both Mr Baltic and Mr Wilkins explained the methodology and the outcomes of their respective analyses of the likely peak hour vehicle trips that would be generated by the proposed development. Mr Baltic suggested 32 trips at peak hour while Mr Wilkins initially concluded 99 trips. Having tested his conclusion utilising alterative methodologies Mr Wilkins submitted that he felt his original figure was robust. It should be noted that in spite of the wide variance between these results both experts came in below the 100 vehicle trips in the peak hour to generate a High Impact Assessment.
Mr Wilkins' methodology was based on the use of a comparative analysis utilising Herdsman Fresh. The applicant questioned the use of Herdsman Fresh on a number of grounds.
The question of likely customer numbers was put to the retail experts, Mr Shrapnel and Mr Chappell. Mr Chappell, based on an assumed $5 million turnover, 12 hour trade and a $35 basket estimated an average of 33 customers per hour. He argued that peak hour trade could involve 15 or 20 above the average (one or two standard deviations from the statistical average) and that the number of 80 suggested in the Business Overview provided by the applicant was unlikely to be achieved. While Mr Shrapnel agreed in principle with the approach taken by Mr Chappell he submitted the number of customers could potentially reach 80 people in peak hour.
Although counsel for the respondent in closing submitted that no weight ought to be given to what he described as Mr Chappell's 'back of the envelope calculations' the figure did equate closely to Mr Baltic's estimation of 75 trips at peak hour prior to his adjustment for both cross trade and the peak hour trips of the preexisting use.
As this application for a change of use essentially involves an intensification of the previous uses in the relevant tenancies, it is logical to make some allowance for the previous use. Mr Wilkins suggested 5%.
While all the assumptions underpinning an assessment of peak hour trips are open to challenge it is clear that, based on all the evidence provided in this matter, in particular that of Mr Baltic and Mr Wilkins, net peak trips in the peak hour fall below the 100 trips which would trigger the requirement for a High Impact Transport Impact Assessment under the Guidelines.
The Tribunal therefore finds that given both the area of the proposed development falls below the 1000m² threshold, and the trip generation falls below the 100 trips in peak hour, a High Impact Transport Impact Assessment under the Guidelines is not required.
Whether there are additional issues with the current access arrangements
Mr Wilkins identified a number of additional transport issues. He argued that there are significant differences in methodology, application and assessment of statutory parking provisions. In his submission, there is an undersupply of car parking for the development. The Tribunal was however provided with a parking utilisation survey undertaken in June 2016. This study established peak parking occupancy levels at 12.30 pm to 1 pm on a typical Saturday of 54%. The results of this survey were not challenged and the Tribunal therefore finds that there is adequate car parking available on the subject site to provide for the proposed use.
Mr Wilkins also raised concerns over the configuration of the Salvado Road crossover and the width of parking bays within the existing parking area which did not meet current standards. The viewing of the crossover by the Tribunal identified issues with it. These did not however appear to be substantive and the traffic experts identified a number of potential responses to address these concerns.
The evidence of the expert planner for the applicant, Mr Haeren, was that in the absence of evidence of a fundamental issue or something presenting a safety concern, local authorities would not, in the context of a small scale change of use, require a large site to be brought up to current standards. This evidence was not challenged.
Mr Wilkins also raised the issue that there is no provision of parking bays for people with disabilities or cycle parking. Disabled parking was provided in the car park although not in the immediate proximity of the proposed development and the applicant advised that it did intend to provide cycle parking. Logically, such concerns go to the question of conditions although it should be noted that these issues were not included in the Draft 'Without Prejudice' Conditions submitted by the respondent.
The Tribunal also notes that the respondent initially appointed an independent consultant (Cardno) to review the transport report provided by the applicant and while Cardno raised a number of issues with the Transcore report, the report provided by Council Officers to the meeting of 28 June 2016 noted that Cardno concluded, and confirmed by email, that 'ultimately there is unlikely to be any fundamental traffic or parking problem arising from the application which is likely to justify refusal' and they 'do not believe that the traffic on the current road network should be considered to be "unsafe" or otherwise unacceptable given it is an inner urban environment'. The issue of pedestrian access has been dealt with earlier.
The Tribunal agrees with that conclusion and on the basis of all the evidence provided, finds that the proposed development adequately addresses the relevant traffic and parking issues.
In the current review, the Tribunal noted and was also assisted by the report of the Council Officers provided to the respondent. The report was both comprehensive, and in light of the evidence provided to the Tribunal in the review, represented a balanced assessment of the proposed development.
In Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4, the Town Planning Appeal Tribunal, as it then was, deliberated on the weight to be accorded to recommendations of planning officers which differ from the respondent's determination of an application. The Town Planning Appeal Tribunal found as follows at [35] [36]:
… Whilst it is true that that is what they are, namely recommendations, it is equally true that they represent the considered recommendations of professionally trained and engaged employees.
… It is in no way determinative of the matter before the Tribunal but nevertheless represents a matter to which regard ought to be had as a matter to be considered in the determination of this appeal. To the extent to which there is discretion and therefore an element of judgment, the views expressed on such matters by qualified planners are of assistance to the Tribunal.
Conclusion
The history of the subject site is both relevant and highly atypical. It is unusual however, in that it is also owned by the respondent and leased to the applicant. The current head lease finishes on 31 December 2020 with two further options of five years taking the total potential lease period to 31 December 2030.
As outlined earlier the subject site currently contains the existing Centre, which comprises a range of showroom type and other uses with associated car parking.
All of the planning experts agree that the proposed use would be acceptable on the subject site as part of a comprehensive redevelopment but the two planning experts for the respondent argue that the proposed use is currently inappropriate within a bulky good showroom development that is not part of a pedestrianfriendly urban environment. This is in spite of the fact that the proposed use constitutes a 'D' use and 'Local Shop' a 'P' use on the subject site under the current planning scheme, which suggests that retail uses were clearly envisaged within this zone.
The objectives for the Commercial/Residential zone set out in cl 44 of TPS 4 focus primarily on development rather than land use and the Tribunal is of the view that the proposed development is unlikely to undermine the strong recognisable identity of the site or the amenity and general environmental standards of the existing and future development within and adjoining the zone.
Clearly the use will not be orientated to the street in the traditional manner but given the nature of the existing building this would be true of any proposed use. In addition, the Tribunal found that while the pedestrian environment is certainly not optimal the direction from which pedestrians are likely to access the subject site does have adequate linkages to the broader town centre pedestrian network.
The scale of the proposed development will not, in the Tribunal's view, infringe the intentions of the local planning strategy to ensure that the 'premier role [of the Town Centre] will not be allowed to be undermined, which could occur if inappropriate, largescale developments were to be permitted in other areas within the municipality'.
Furthermore, the retail experts agreed that the impact of the Growers Lane will be negligible and will not affect the viability of other retail businesses within the City of Subiaco. Importantly, the subject site is included within the boundary of the Activity Centre as designated in the recent Draft Subiaco Activity Centre Plan.
The respondent also argued that approving the current development would serve as an undesirable precedent and encourage other retail uses at the Centre, although no mention appeared to be made of the fact as outlined earlier that 'Local Shop' is in fact a permitted use in the zone.
In Nicholls and Western Australian Planning Commission [2005] WASAT 40, the Tribunal cited Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, where the Town Planning Appeal Tribunal stated at 177 as follows:
The Tribunal has been reluctant to place great importance on the undesirable precedent argument in several appeals for the reason stated in Aspen Pty Ltd v State Planning Commission (WATPAT, No 13 of 1988, unreported) at 10:
'The precedent argument is not usually treated by this Tribunal as a "stand alone" argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other applications being made for similar kinds of development, should not be a reason why the appeal should be dismissed … '
In that decision the Tribunal adopted, at [74], the criteria stated by Lloyd J in Goldin v Minister for Transport (2002) 121 LGERA 101 as to the circumstances in which precedent is a relevant consideration in a planning assessment, namely:
1)that the proposed development or subdivision is not in itself unobjectionable; and
2)that there is more than a mere chance or possibility that there may be later undistinguishable applications.
Neither of these criteria are satisfied in this case.
The Tribunal finds that the development is not objectionable and given the specific nature of the proposed development, it is extremely unlikely that a later undistinguishable development would seek to locate on the subject site.
Therefore having regard to the scale of the proposed development, the Tribunal finds that the proposed Growers Lane development constitutes an acceptable use within the Centre and having reviewed the transport issues raised by the respondent in some considerable detail the Tribunal finds that on the basis of all the evidence provided the development adequately addresses the relevant traffic and parking issues.
For these reasons the Tribunal finds that the proposed development complies with the provisions of TPS 4 and the relevant provisions of cl 67 of the LPS Regulations and warrants approval. The application for review will therefore be allowed and conditional approval granted.
Conditions
On 11 August 2016, in compliance with previous orders of the Tribunal, the respondent filed four draft conditions which it believed should be imposed if approval was granted and on 24 August 2016, the applicant responded to the respondent's draft conditions agreeing with condition 3 and 4 but in relation to conditions 1 and 2, submitted:
1.The Applicant agrees with Condition 1, with the exception that the amended floor plan which was provided to the City prior to the Council's determination in February 2016 … should be included. On this basis, the Applicant proposed the following amendment to Condition 1
'The development shall be carried out in accordance with the plans and drawings date stamped 13 October 2015 included with the application for development approval, excluding the proposed floor plan, and in accordance with the attached floor plan document.'
2.The Applicant does not agree with Condition 2. While the Applicant does not object to a timelimited approval being granted, it should be aligned with the Head Lease between Homebase Management Pty Ltd and the City of Subiaco. The Applicant therefore proposed the following alternative to Condition 2
'The approval expires on the earlier of
•The lapsing of the lease between Homebase Management Pty Ltd and the City of Subiaco, identified on the Certificate of Title as Document J009020; or
•31 December 2030.
(Emphasis original)
Condition 1
In respect of condition 1, the Tribunal notes that the amended floor plan which the applicant states was provided to the respondent prior to the respondent's determination on reconsideration in June 2016 was all but identical to the floor plan attached to the witness statement of Councillor Mark Burns and referred to at paragraph 47 of his witness statement.
No party submitted that it was not the correct floor plan and indeed it was the floor plan in respect of which questions were put to witnesses during the hearing. In the circumstances, the Tribunal is satisfied that the amended condition as proposed by the applicant should be imposed.
Condition 2
As set out earlier, the current head lease finishes on 31 December 2020 with two further options of five years taking the total potential lease period to 31 December 2030.
The applicant does not object to a timelimited approval but submits that it should be aligned with the head lease between Homebase Management Pty Ltd and the City of Subiaco and the exercisable options available which would bring the date of expiry to 31 December 2030.
The respondent's suggested condition 2 simply states 'the approval expires on 31 December 2020'. However, other than that being the expiry date of the current head lease, no compelling reason was put forward as to why that date should be chosen and not 31 December 2030 as submitted by the applicant which is in line with the commercial reality of the options that might be exercised.
If the options are not exercised and the lease lapses then condition 2 as suggested by the applicant covers such a contingency.
The Tribunal is satisfied that the amendments suggested by the applicant lead to a better planning outcome and will impose a condition in that form.
Orders
1.The decision of the respondent on 28 June 2016 to refuse a change of use from showroom to shop (Growers Lane) at 55 Salvado Road, Subiaco is set aside and a decision is substituted that development approval is granted in accordance with the provisions of the City of Subiaco Town Planning Scheme No 4 and the Metropolitan Region Scheme subject to the following conditions:
1.The development shall be carried out in accordance with the plans and drawing date stamped 13 October 2015 included with the application for development approval, excluding the proposed floor plan, and in accordance with the attached floor plan attached as Annexure A.
2.The approval expires on the earlier of
•the lapsing of the lease between Homebase Management Pty Ltd and the City of Subiaco, identified on the Certificate of Title as Document J009020; or
• 31 December 2030.
3.The text/lettering of each advertising sign associated with the development shall not exceed 10m² on each of the three facades of the tenancy. Signage shall not pulse or flash.
4.Prior to commencement of development, a noise management plan shall be submitted to the City of Subiaco for approval detailing measures that will be undertaken to ensure noise levels are maintained within the levels prescribed in the Environmental Protection (Noise) Regulations 1997 (WA). The plan shall be prepared by a suitable qualified consultant and shall include:
•sound proofing measures used in the design and construction of the development;
•predictions of noise levels (including delivery/service vehicles);
•control measures to be undertaken (including monitoring procedures); and
• a complaint response procedure.
All sound attenuation measures in the approved plan shall be implemented prior to occupancy of the development and the requirements of the plan shall be observed at all times.
I certify that this and the preceding [109] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, SENIOR MEMBER
Annexure A
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