HOPETOUN QUARRY INDUSTRIES PTY LTD and SHIRE OF RAVENSTHORPE
[2011] WASAT 59
•13 APRIL 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HOPETOUN QUARRY INDUSTRIES PTY LTD and SHIRE OF RAVENSTHORPE [2011] WASAT 59
MEMBER: MS M CONNOR (MEMBER)
HEARD: 20 JANUARY 2011
DELIVERED : 13 APRIL 2011
FILE NO/S: DR 394 of 2010
BETWEEN: HOPETOUN QUARRY INDUSTRIES PTY LTD
Applicant
AND
SHIRE OF RAVENSTHORPE
Respondent
Catchwords:
Town planning Development application Change of use from shop, takeaway outlet, and restaurant to tavern, restaurant and take-away outlet Whether the proposed tavern was incidental to the primary use of land as park home park Whether the proposed land use change is inconsistent with the orderly and proper planning of the locality having regard to the established planning framework
Legislation:
Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development Act 2005 (WA), s 241(1), s 252(1)
Shire of Ravensthorpe Town Planning Scheme No 5, c 2.1, cl 4.7, cl 9.4, cl 9.4.3, cl 10.2, cl 10.3, cl 10.9, Sch 1, Sch 2
Result:
Application for review allowed
Decision of the respondent is set aside and conditional approval granted
Category: B
Representation:
Counsel:
Applicant: Ms B Moharich
Respondent: Mr D Nicholson
Solicitors:
Applicant: Flint Moharich
Respondent: McLeods
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL
Summary of Tribunal's decision
Hopetoun Quarry Industries Pty Ltd applied to the State Administrative Tribunal for review of the Shire of Ravensthorpe's decision refusing planning approval for a change of use to establish a tavern in the existing commercial premises at No 279 (Lot 54) HopetounRavensthorpe Road, Hopetoun.
The following two principal issues arose for determination in this matter:
1)Whether the proposed tavern was incidental to the primary use of the land as a park home park; and
2)Whether the proposed land use change was inconsistent with the orderly and proper planning of the locality, having regard to the established planning framework.
The Tribunal found that limited size of the floorspace, its location within a building that forms part of the wider village, the proposed mix of uses and the fact that Wavecrest Village has a population that will be drawn to these uses, were factors that together, were sufficient to characterise the proposal as ancillary and subordinate to the predominate use, even though it was open to patronage from other places. It was these particular characteristics, together with the fact that the proposed development would enhance the existing park home park/caravan park, a tourist land use, that were influential in the Tribunal's findings that the proposed development was consistent with the orderly and proper planning of the locality. The application for review was allowed and conditional approval granted.
Introduction
Hopetoun Quarry Industries Pty Ltd (applicant) made application to the Shire of Ravensthorpe (respondent or Council), on 3 September 2010, for a change of use to establish a 'Tavern' in the existing commercial premises at No 279 (Lot 54) HopetounRavensthorpe Road, Hopetoun (subject land).
As a consequence of the respondent's failure to determine the application within the prescribed time, pursuant to cl 10.9 of the Shire of Ravensthorpe Town Planning Scheme No 5 (TPS 5 or Scheme), review proceedings were commenced by the applicant on 2 December 2010 under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). The matters proceeded to a directions hearing, which resulted in the Tribunal inviting the respondent to reconsider its decision.
At its meeting of 23 December 2010, the respondent refused the application for the following reasons:
1.The proposal is inconsistent with the orderly and proper planning of the locality;
2.The intensification of commercial activity on the land is in direct contrast to the vision of the Shire of Ravensthorpe Local Planning Strategy;
3.The intensification of commercial activity on the land would cause a 'polarisation reversal effect' that will see the already fragile Hopetoun Town Centre perish over time;
4.The proposed tavern would undermine the implementation of the Hopetoun Main Street Strategy which seeks to revitalize and develop Hopetoun's Main Street; and
5.The intensification of commercial activity in this location is inconsistent with objectives of Statement of Planning Policy No 3 'Urban Growth and Settlement' (SPP 3) or the key indicators of a sustainable community.
Subject land
The subject land is more particularly described as Lot 54 on Deposited Plan 67968, being the whole of the land in Certificate of Title Volume 2751 Folio 492 and is 4.86 hectares in area.
Development approved and constructed on the subject land
The respondent, on 22 April 2004, granted planning approval for the development of 103 park home units, a convenience store with café/restaurant and a service station on the subject land.
Construction of the park home and caravan park, known as Wavecrest Village, began in 2006. Roads and services for the entire 103 park home sites were developed; however, the total number of park home units installed was 61, with the other 42 sites remaining empty. The number of units onsite has since been reduced to 48. In 2009, twenty (20) of the unused park home sites in the easternmost portion of the site were replaced with sixteen (16) caravan/RV sites, and an ablution block constructed to service travellers. The commercial component of the development included construction of a 'tiltup' concrete building, of approximately 640 square metres in area, with direct frontage to HopetounRavensthorpe Road. This building comprised the convenience store, café/restaurant and recreation room/function centre. The service station was not constructed due to environmental concerns.
Surrounding locality
The subject land is located approximately 1.5 kilometres north of Hopetoun townsite, and approximately 3.7 kilometres north of Hopetoun's commercial centre.
The land immediately abutting to the north, west and south is generally used for agricultural purposes, although is proposed for future subdivision. To the east of the subject land, on the opposite side of HopetounRavensthorpe Road, there is a reserve for public recreation.
Within the surrounding area, the land to the south of Banksia Road and approximately 300 metres south of the subject land, has been subdivided and developed for rural and residential purposes.
Proposal
The proposal involves a change of use of the existing commercial building from shop, takeaway outlet and restaurant, to tavern, restaurant and takeaway outlet. It is intended that the hours of operation accord with the standard permitted tavern trading hours under a liquor licence, that being, 6 am to midnight Monday to Saturday, and 10 am to 10 pm Sunday, with additional limitations on Anzac Day, Good Friday and Christmas Day, and extended privileges on New Year's Eve and New Year's Day.
The proposal entails the following modifications to the internal layout of the building:
•The tavern is to accessed through a new entry on the northern side of the existing building;
•The main lounge/cocktail bar area will be located in the area previously occupied by the convenience store and restaurant, which is at the front of the building;
•The new restaurant area, capable of seating 48 patrons, will be located in the former recreation room/function centre and will open out onto an alfresco area that will be protected by the existing roof and new plastic café curtains. Provision will also be made for a small enclosed children's playground; and
•A separate take-away counter area, which is to be operated by the managers of the tavern and is not intended to be a separate tenancy.
The proposal also includes the construction of a new car parking area on the northern side of the commercial building to cater for customers of the tavern.
The following car parking arrangements are intended to service the proposed development:
•Forty-six bays located on the north side of the building for tavern and restaurant patrons;
•Eleven bays located at the front of the building for takeaway customers; and
•Additional overflow car parking, resulting from large functions, will be available within the village road network and on the large gravel area in front of the village.
Planning Framework
The subject land is zoned 'Special Use Zone 11' under TPS 5.
Clause 4.7 of TPS 5 provides:
Special Use Zones are set out in Schedule 2 and are in addition to the zones in the Zoning Table. No person shall use any land or any structure or building on land, in a Special Use Zone except for the purpose set out against that land in Schedule 2 and subject to compliance with any conditions set out in Schedule 2 with respect to that land.
At the date of the hearing, Sch 2 contained the following provisions relating to Area 11:
| No. | Description of land | Special Use | Conditions |
| … 11 … | 279 Hopetoun-Ravensthorpe Road, Hopetoun (Lot 6381 on Diagram 94334) | Park home par[k] and/or Caravan Park with the following incidental uses and level of permissibility as provided by Clause 4.3.2 of this Scheme: Convenience Store (D) Restaurant (D) Fast Food Outlet (A) Reception Centre (A) Tavern (A) | All incidental uses are to be held in a combined single tenancy and the maximum combined commercial Net Lettable Area is to be 400m2. |
The term 'incidental use', which is used to define the purpose of the 'Special Use', is given the following meaning in 'Schedule 1 Definitions':
… a use of premises which is ancillary and subordinate to the predominant or primary use.
Further, the use permissibility for a tavern in 'Special Use Zone 11' is 'A', which means:
… the use is not permitted unless the local government has exercised its discretion and has granted planning approval after giving special notice in accordance with clause 9.4.
Clause 9.4 of the Scheme sets out the requirements for advertising applications. According to the evidence of Mr Pascoe Durtanovich, Chief Executive Officer of the Shire of Ravensthorpe, the application was advertised in accordance with cl 9.4.3 of the Scheme and a total of four submissions were received, comprising two objections against and two submissions in support of the application.
Clause 10.3 of the Scheme provides the authority for the Council to approve with or without conditions, or to refuse an application. Without limiting the scope of discretion to determine an application, cl 10.2 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 and provisions of the Scheme (cl 10.2a));
•The Local Planning Strategy (cl 10.2b));
•The requirements of orderly and proper planning (cl 10.2c));
•Any approved Statement of Planning Policy of the Western Australian Planning Commission (cl 10.2d));
•The compatibility of a use with its setting (cl 10.2j));
•The potential loss of any community service or benefit resulting from the planning approval (cl 10.2.y));
•Any relevant submission received on the application (cl 10.2z)).
In addition to cl 10.2(b) of the Scheme, cl 2.1 provides that:
Except to the extent that the Local Planning Strategy is inconsistent with the Scheme, determinations of the local government under the Scheme are to be consistent with the Local Planning Strategy.
The Tribunal, in its deliberations of this matter, has had due regard to the Shire of Ravensthorpe Local Planning Strategy 2003 (LPS). Further, and in accordance with cl 10.2(d) and s 241(1) of the PD Act, the Tribunal has had regard to the following relevant State Planning Policies in the determination of this matter:
•Statement of Planning Policy No 1: State Planning Framework Policy (Variation 2) (SPP 1); and
•Statement of Planning Policy No 3: 'Urban Growth and Settlement' (SPP 3).
A further document, referred to by the respondent, that the Tribunal has had regard to is the Shire of Ravensthorpe Mainstreet Strategy (Mainstreet Strategy).
Issues
The following principal issues arise for determination in relation to this matter:
1)Whether the proposed tavern is incidental to the primary use of the land as a park home park; and
2)Whether the proposed land use change is inconsistent with the orderly and proper planning of the locality having regard to:
i)whether the intensification of commercial activity on the land is inconsistent with the Shire of Ravensthorpe Local Planning Strategy;
ii)whether the intensification of commercial activity on the land is likely to undermine the long term viability and sustainability of Hopetoun Town Centre.
iii)whether the proposed tavern would undermine the implementation of the Hopetoun Mainstreet Strategy which seeks to revitalise and develop Hopetoun's main street; and
iv)whether the intensification of commercial activity in this location is inconsistent with the objectives of SPP1 and SPP3.
The Tribunal will address each of the issues in turn.
Whether the proposed tavern is incidental to the primary use of the land as a park home park
The respondent contended that the tavern use, as proposed, was not incidental to the use of the predominant use of the subject land (park home and/or caravan park) as required by Area 11 of Sch 2 of TPS 5 and therefore not permitted by the Scheme. The respondent acknowledged that a number of uses (convenience store, restaurant, fast food outlet, reception centre and tavern) had been identified as incidental uses in Sch 2, and conceded that it was, in principle, possible to have any of those uses as incidental uses, but considered that there was a question of fact and degree as to whether the proposed use was an 'incidental use', as defined in Sch 1 of the Scheme, and capable of approval.
The respondent submitted that the existing commercial uses appear to have functioned as an incidental use, as intended by the Scheme, as the development predominantly catered for the village residents. The respondent asserted that the tavern use could only reasonably be considered incidental to the predominant use if it were intended to primarily or predominantly serve the residents of Wavecrest Village. The respondent did not consider this to be the case in this instance, as the proposed tavern is intended to also serve the growing rural areas of Hopetoun and potentially the Hopetoun townsite. The respondent submitted that the correct characterisation of the uses, in this case, was that the tavern would not be ancillary or subordinate to the predominant use of park home park and/or caravan park, but in fact constituted an independent, separate and distinct use.
The Tribunal is of the view that the specific provisions relating to Area 11, as set out in Sch 2, clearly identify that convenience store, restaurant, takeaway food outlet, reception centre and tavern are incidental uses to the predominant use of park home park and/or caravan park, provided that the incidental uses are held in a combined single tenancy and the maximum combined commercial net lettable area is to be 400 square metres. The issue of whether those uses are ancillary and subordinate to the predominant use is addressed in the first instance by the restrictions set out in the conditions column of Sch 2 and, secondly, by the permissibility of the uses, which provides for an assessment of the substantive merits of the case.
The proposal before the Tribunal entails a commercial development comprised of a takeaway outlet of 49.4 square metres, a restaurant of 154.6 square metres and a tavern of 196.0 square metres. The combined net lettable area of the proposal satisfies the first of the two limbs referred to in para 31, that being the maximum combined commercial net lettable area is 400 square metres and held in a single tenancy.
As to the incidental nature of the proposed development to the predominant use, the Tribunal acknowledges that the proposed tavern, as well as the other uses, may serve a wider catchment area than residents of Wavecrest Village. However, the Tribunal considers that the limited size of the floorspace, its location within a building that forms part of the wider village, the proposed mix of uses and the fact that the village will have population that will be drawn to the uses, are factors, that together are sufficient to characterise the proposal as ancillary and subordinate to the predominate use, even though it is open to patronage from other places. In order to ensure that the uses remain as indicated, any approval should include a condition requiring the use of the premises in accordance the plan and that the restaurant area is to remain as dining area at all times.
Whether the proposed land use change is inconsistent with the orderly and proper planning of the locality having regard to the established planning framework
The respondent contended that the proposed development was inconsistent with a number of strategic documents that guided the development of the locality and, as such, was inconsistent with the orderly and proper planning of the locality. Firstly, the respondent referred to the LPS, in particular, s 3 Strategic land use plan, under the heading Commercial, (page 23), which states:
… In order to maintain viability, it is considered appropriate that the town centres … remain the focus for commercial activities. The exception will be the provision of some local convenience facilities to service the proposed future residential development areas.
The respondent argued that the tavern, as proposed, was not local convenience facilities and was, therefore, contrary to the strategic objectives of the LPS. The respondent did, however, concede that potentially a tavern that was incidental to the park home park could fall within the exception stated in the LPS and not be inconsistent with the objectives of the LPS.
The respondent also argued that the intensification of commercial uses at Wavecrest Village conflicts with the Hopetoun Mainstreet Strategy, which aims to attract more retail and entertainment uses in order to ensure a more constant level of activity of Veal Street, and the proposed development does not assist in that process.
The respondent also relied on SPP 1 and SPP 3 and submitted that these policies were relevant considerations in the determination of this application, inasmuch as they related to the sustainable use and development of land and the need to promote sustainable communities. The respondent acknowledged that these policies were broad brush statements but asserted that the proposed development was inconsistent with these two objectives as the establishment of a significant commercial and entertainment use, such as proposed, will fragment the concentration of commercial activities within the municipality and draw people away from the town centre, thereby undermining the function and future success of Hopetoun's existing commercial centre. In addition, the respondent submitted, that the benefits of multipurpose car trips by the clustering of use in one area would be lost with the location of this use outside of the town centre.
The Tribunal's attention was also drawn to the submission made by the owner of the Port Hotel, which indicated that plans to upgrade the hotel have been put on hold pending the outcome of this application. The respondent submitted that the submission had some relevance, in that as a desired planning outcome, the redevelopment of the Port Hotel accords with the strategic planning envisaged for the locality and is more desirable than a tavern developed some kilometres outside of the town centre.
The Tribunal does not consider the proposed development to be inconsistent with the strategic framework, as the restriction placed on the scale of the proposed development by the Scheme, together with the mix of uses proposed and its location, provides sufficient controls to ensure that the function and viability of the town centre is not undermined. The 'Special Use' provisions contained in TPS 5 and the ancillary nature of the proposed development combine to ensure that the broad principles embodied in SPP 1 and SPP 3 are not compromised. Further, the Tribunal does not consider the change of use, as proposed, to necessarily represent an intensification of commercial use. Clearly, there is no increase in commercial floorspace, only a change in commercial activities to be undertaken, which in this instance, is moderated by the combination of uses within the approved building.
Additionally, as conceded by the respondent, there is a tourism aspect associated with this development. The subject land is approved as a park home park/caravan park, and the proposed development will only enhance the function of this tourist activity, which is consistent with the intent of the Scheme and wholly consistent with the objectives for tourism and recreation, as contained in the LPS. Furthermore, the Tribunal does not consider the consolidation of this site for tourist related activities to be contrary to, or detract from, the strategic vision for the town centre.
Conclusions
In considering the principal issues that arise for determination in relation to this matter, the Tribunal is satisfied, for the above reasons, that the change of use of the existing commercial building from shop, takeaway outlet and restaurant, to tavern, restaurant and take away outlet, is consistent with the orderly and proper planning for the locality and should be allowed.
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. A document containing eight conditions was filed by the respondent.
The applicant accepted draft conditions 1, 2, 4, and 5, and provided argument as to why the remaining conditions should not be imposed or, alternatively, modified. The respondent, in light of the applicant's arguments, advised the Tribunal that it agreed that the wording of the opening paragraph of draft condition 6, and para (ii) of condition 6, could be amended and paras (i), (iii) and (iv) of draft condition 6, as well as, draft condition 7, could be deleted, leaving the following conditions to be determined by the Tribunal:
3.Prior to occupation of the development, 51 car parking bays to be constructed. The car parking and loading areas(s), and vehicle access and circulation areas shown on the approved development guide plan, including the provision of disabled car parking, are to be constructed, drained, and line marked to the standards and satisfaction of the Shire.
8.An acoustic engineer's report to be obtained by the applicant for the purpose of proposing a suitable sound engineering design for the tavern premises, so as to ensure that any amplified music is delivered in a manner that ameliorates any noise emissions and complies with the Environmental Protection (Noise) Regulations 1997. The acoustic engineer's report is to be provided to the Shire for approval prior to a building licence being granted and the tavern shall be developed in accordance with any recommendations in the report approved by the Shire.
Proposed condition 3
The applicant submitted that the requirement for the additional 51 car parking bays was based on an assessment undertaken by the planning officer of the Shire of Ravensthorpe (planning officer), contained in a report to Council on 21 October 2010. The applicant asserted that this figure was incorrect as it was arrived at using an incorrect figure supplied by Mr Roy Winslow, in his report 'Application for Planning Approval (Change of Use) Proposed Tavern at Wavecrest Village Hopetoun' which was submitted as part of the development application for this proposal. Mr Winslow, who is a town planner, was called by the applicant to give evidence in these proceedings. Mr Winslow informed the Tribunal that his original calculations were undertaken without the benefit of a properly scaled plan and that the correct figure was 93 car parking bays, not 102 car parking bays, as specified in page 8 of the report. The applicant contended that the correct calculation should have been 50% of 93 car parking bays, which equated to the provision of 46 car parking bays.
The respondent did not dispute the recalculation of car parking bays as required by TPS 5, contained in Mr Winslow's witness statement. The evidence would suggest that the total car parking bays required by the Scheme for the proposed development is 93 bays. Neither party challenged the rationale of the planning officer in supporting a reduction of the requirement by 50%, although the respondent considered that it would be preferable if the higher calculation was imposed. Given the rationale underpinning the calculation of car parking bays the Tribunal is satisfied that the condition should be amended to require an additional 46 car parking bays be construction onsite.
Proposed condition 8
The applicant argued that the condition, as currently worded, would be difficult to comply with as it appeared to have been drafted on the basis that the tavern had not yet been constructed. The applicant submitted that as the respondent was requiring no more than compliance with the existing standard, that is, the Environmental Protection (Noise) Regulations 1997 (WA), it would be more appropriate for this condition to be removed and for the applicant to regulate its own compliance with these regulations.
The respondent agreed that the condition should be deleted but sought the imposition of a condition requiring the applicant to comply with the Environmental Protection (Noise) Regulations 1997.
As the condition does no more than require compliance with other legislation, the Tribunal does not consider the imposition of such a condition to be necessary.
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 8 January 2011 with respect to a development application for the establishment of a tavern at No 279 (Lot 54) HopetounRavensthorpe Road, Hopetoun is set aside and a decision is substituted that planning approval is granted for change of use of the existing commercial building from shop, take-away outlet and restaurant, to tavern, restaurant and take-away outlet, subject to the following conditions:
i)Development must substantially commence within two years from the date of this decision.
ii)Development shall be undertaken in accordance with the approved plans.
iii)Prior to occupation of the development, an additional 46 car parking bays are to be constructed onsite. The car parking and loading areas, and vehicle access and circulation areas shown on the approved development guide plan, including the provision of disabled car parking, are to be constructed, drained and line marked to the standards and satisfaction of the Shire of Ravensthorpe.
iv)All car parking and loading areas and vehicle access and circulation areas are to be maintained and available for car parking/loading and vehicle access and circulation on an ongoing basis to the satisfaction of the Shire of Ravensthorpe.
v)Vehicular access to the tavern shall be via the northernmost entry point only.
vi)A Management Strategy for the tavern premises is to be submitted to the Shire of Ravensthorpe's Chief Executive Officer for approval, after the conditional grant of the licence by the licensing authority and prior to the unconditional grant of licence, which approval is to be given within 14 days of receiving the Management Strategy and which is not to be unreasonably withheld.
Thereafter, the tavern shall be operated in accordance with the approved Management Strategy, subject to any written law, policy of the licensing authority, or other condition or requirement determined by the licensing authority.
The Management Strategy is to address the following matters:
a)Suitable methods of monitoring patrons numbers;
b)Patron control (including staff training and external surveillance);
c)Access to taxi service and complementary calling service;
d)Lighting in and around the perimeter of the tavern premises;
e)Cleaning of the site and the public area around the site;
f)Servicing times and service vehicle route for the tavern premise in terms of deliveries and pick up.
vii)The restaurant area, as shown on the approved plans, is to be used for dining purposes at all times.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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