Hopkins and Anor and Town of Vincent
[2007] WASAT 149
•11 JUNE 2007
HOPKINS & ANOR and TOWN OF VINCENT [2007] WASAT 149
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 149 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:471/2006 | 7 MARCH 2007 | |
| Coram: | MS R MOORE (SENIOR SESSIONAL MEMBER) | 11/06/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The decision of the respondent made on 22 November 2006 to refuse development approval for a drive-in fast food outlet (coffee outlet) at 462 Beaufort Street, Mount Lawley is affirmed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL RONALD HOPKINS BRAXTON PTY LTD TOWN OF VINCENT |
Catchwords: | Town planning Development application Drivein fast food outlet Coffee outlet Temporary use Discretionary use Traffic Safety Signage Amenity |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) Town of Vincent Town Planning Scheme No. 1, cl 38, cl 44 |
Case References: | Fryer and City of Subiaco [2006] WASAT 199 |
Orders | 1. The application for review is dismissed,2. The decision of the respondent made on 22 November 2006 to refuse development approval for a drive-in fast food outlet (coffee outlet) at 462 Beaufort Street, Mount Lawley is affirmed |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HOPKINS & ANOR and TOWN OF VINCENT [2007] WASAT 149 MEMBER : MS R MOORE (SENIOR SESSIONAL MEMBER) HEARD : 7 MARCH 2007 DELIVERED : 11 JUNE 2007 FILE NO/S : DR 471 of 2006 BETWEEN : MICHAEL RONALD HOPKINS
- BRAXTON PTY LTD
Applicants
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Development application - Drivein fast food outlet - Coffee outlet - Temporary use - Discretionary use - Traffic - Safety - Signage - Amenity
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Town of Vincent Town Planning Scheme No. 1, cl 38, cl 44
Result:
(Page 2)
The application for review is dismissed
The decision of the respondent made on 22 November 2006 to refuse development approval for a drive-in fast food outlet (coffee outlet) at 462 Beaufort Street, Mount Lawley is affirmed
Category: B
Representation:
Counsel:
Applicants : Mr M Turnbull (Acting as Agent)
Respondent : Mr S Bain (Acting as Agent)
Solicitors:
Applicants : Greg Rowe & Associates (Planning Consultants)
Respondent : Town of Vincent
Case(s) referred to in decision(s):
Fryer and City of Subiaco [2006] WASAT 199
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of the decision of the Town of Vincent to refuse development approval for a "drive-in fast food outlet (coffee outlet)" at 462 Beaufort Street, Highgate.
2 The proposed land use was a discretionary use and the applicants requested temporary approval (5 years) on the basis that the landowner was not currently in a financial position to fully develop the site. The applicants argued that the proposal would improve the amenity of the area by replacing an existing car yard; providing a service to the local area; and alleviating parking problems in the local area.
3 The respondent was concerned that the amenities of the area would be adversely affected by the proposal, whether temporary or not.
4 The Tribunal found that the development did not comply with the Town of Vincent's Mount Lawley Centre Precinct Policy and would have an unduly adverse effect on the orderly and proper planning and the preservation of amenities of the locality. The application for review was therefore dismissed and the decision of the Town of Vincent affirmed.
Introduction
5 These proceedings involve an application brought by Mr Michael Ronald Hopkins and Braxton Pty Ltd (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision made by the Town of Vincent (respondent or Council) on 22 November 2006 to refuse development approval for a drive-in fast food outlet (coffee outlet) and associated signage at 462 Beaufort Street, Mount Lawley (subject land or site).
Site and locality
6 The subject land is located at 462 Beaufort Street, Mount Lawley and is described on Certificate of Title Volume 1505 Folio 318 as being Lot 2 on Diagram 3824. The land is on the corner of Beaufort Street and Broome Street and is rectangular in shape with an area of 1083 square metres.
7 Photographs provided by both the applicants and the respondent show that the site improvements consist of single storey commercial buildings to the rear with an expanse of bitumen covering the remainder
(Page 4)
- of the site. The buildings that front onto Broome Street appear to be unused while the building in the south-eastern corner may be occupied. The Tribunal has been told that these buildings do not form part of this development application.
8 The area that does form part of this application is the bitumenised area fronting Beaufort Street and Broome Street and appears to be currently used for car parking. The site was previously used as a car sales yard.
9 The area to the east of the subject land is primarily residential, whereas the surrounding properties on Beaufort Street are predominantly retail and commercial with some residential.
10 The section of Beaufort Street to the north of the site has a generally continuous canopy at first floor level projecting over the footpath and most buildings have a nil boundary setback. The section to the south is at the edge of the respondent's Mount Lawley Centre Precinct and has a more varied building line. There are both single storey and two storey buildings, some built to the boundary with verandahs extending over the footpath and others set back from the boundary.
Planning framework
11 The subject land is zoned "Urban" under the Metropolitan Region Scheme (MRS). There is a 1.5 metre road widening reserve on the Beaufort Street boundary and Beaufort Street is designated an "Other Regional Road".
12 The subject land is zoned "Commercial" under the Town of VincentTown Planning Scheme No 1 (TPS 1). The proposed use as a drive-through coffee outlet has been described for this application as a "drive-in fast food outlet" which is defined in TPS 1 as:
" … any premises where food is prepared and sold:
(a) for consumption on the premises and to be taken away; and
(b) to be taken away and the operation of which is likely to attract considerable vehicular traffic to those premises for short periods."
(Page 5)
13 The proposed land use is an "AA" use in a commercial zone under TPS 1, which "means that the use is not permitted unless the Council has exercised its discretion by granting planning approval".
14 Clause 38 lists the matters that Council is to have regard to when determining an application for planning approval. These matters include the MRS, TPS 1, any relevant planning policies, and:
" …
(g) the orderly and proper planning of the locality;
(h) the conservation of the amenities of the locality; and
(i) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
15 Relevant planning policies include the Town of Vincent Planning and Building Policy Manual Precincts Policy No: 3.1.11,Mount Lawley Centre Precinct - Scheme Map 11 (Precinct Policy). This Policy contains the respondent's general aims for the precinct, along with specific guidelines in relation to uses, development standards and building form.
16 Clause 44 of TPS 1 allows for temporary planning approval by the respondent where:
"(a) it considers that that development in excess of that period might adversely affect the amenities of the locality or the orderly and proper planning of the locality; or
(b) for any other reason it considers that approval ought to be granted for a limited or trial period."
Proposed development
17 The proposed development is a drive-through coffee outlet. This requires the construction of a new single storey building 8 metres by 5 metres in plan. The new building will be situated 9 metres from the Beaufort Street boundary and 12 metres from the Broome Street boundary and is to be constructed with aluminium framed windows, a skillion roof and panelled walls.
18 The existing single storey buildings to the east of the site are to be retained and fenced off. The existing crossovers on Beaufort Street are to be adapted and used as separate entry and exit points (left hand in, left
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- hand out) and the existing crossover on Broome Street is to have a pivoted bollard installed.
19 An alfresco area is to be provided to the west of the new building, with approximately 70 square metres of lawn with outdoor tables and seating. Another 20 square metres of lawn is proposed to the east of the new building.
20 The remaining existing bitumen surface is to be retained and used for the driveway; two staff parking bays; and two customer waiting bays.
21 The main sign proposed is a 2 metre by 2 metre cube situated at a height of 4 metres above the ground supported by a single pylon located 400 millimetres from the Beaufort Street footpath and 13 metres from the Broome Street corner.
Council's decision
22 The application for approval was stamped as received by the respondent on 18 October 2006. On 22 November 2006 the application was assessed and determined under delegated authority. The application was refused for the following reasons:
"(i) the development will unduly adversely affect the orderly and proper planning and the preservation of the amenities of the locality;
(ii) the non-compliance with the Building Height/Scale and Pedestrian Environment requirements of the Town's Policy relating to the Mount Lawley Centre Precinct; and
(iii) the non-compliance with the Monolith Sign requirements of the Town's Policy relating to Signs and Advertising."
Previous application
23 A previous development application for a drive-in fast food outlet with ancillary car wash bays and office on the subject land was applied for on 30 August 2005 and refused on 20 December 2005.
24 The Council officer's recommendation for this previous application was for approval subject to various conditions. The application was discussed at the Council meeting on 20 December 2005 and then refused for the following reasons:
(Page 7)
- "1. The development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality.
2. Does not comply with Mount Lawley Town Centre Precinct Policy.
3. Concerns about traffic and safety issues."
25 It is the evidence of Mr Ker, a current councillor and witness for the respondent, that the Council refused the current application on the basis that it did not address the reasons for refusal of the previous application, which are listed above.
26 He lists the main differences between the current proposal and the previous one as the removal of the rear of the site from the application; the deletion of the car wash; and a change in the vehicular entry and exit to the site.
27 Mr Turnbull, on behalf of the applicants, contends that the current proposal is similar to the previous proposal with the significant change being the deletion of the car wash adjacent to the residential neighbours to the east. He argues that as it is a similar proposal, the Council officer's comments regarding the previous application are relevant to the current application.
28 The Council officer's comments were that "due to the nature of the proposed use, the general intentions of the Mount Lawley Centre Precinct Policy and requirements relating to building height and scale and pedestrian environment are difficult to achieve and it is considered that the proposal may not be suitable for the area in the long term". The officer recommended temporary approval for 5 years on the basis "that the proposal will generally improve the existing situation of the site".
Temporary Use
29 It is the applicants' position that they are not intending to fully develop the subject land for the next 5 to 10 years and that in light of this, the respondent should approve the drive-in coffee outlet on a temporary basis rather than let the site remain as is.
30 Mr Ker was asked by Mr Turnbull whether he thought it was a better outcome for the site to be redeveloped as proposed or to remain as a car yard for the next 5 years. Mr Ker's response was that the temporary nature of the proposal did not affect the associated traffic and safety
(Page 8)
- issues. He also expressed concern that this particular proposed use would not generate any pedestrian or street front interaction which was a stated aim of the respondent's Precinct Policy.
Key issues
31 The key issues raised by this review are:
• Will the development unduly adversely affect the orderly and proper planning and the preservation of the amenities of the locality particularly having regard to traffic safety and convenience?
• Does the development comply with the Building Height/ Scale and Pedestrian Environment requirements of the Precinct Policy?
32 The Tribunal will address these issues in relation to the respondent's reasons for refusal.
Will the development unduly adversely affect the orderly and proper planning and the preservation of the amenities of the locality?
33 The applicants contend that the amenity of the area will be improved by replacing the existing vacant car yard with a drive-through coffee outlet. It was the evidence of Mr Barber, the business owner of the proposed coffee outlet, that the provision of a "high speed service" for take away food and beverage would benefit the area.
34 Mr Barber is the owner of Soto Espresso Café located at 507 Beaufort Street, approximately 100 metres north of the subject land. The business intention is to relocate the take away coffee trade to the subject site and in doing so alleviate current parking congestion around his business.
35 There was much discussion about the time taken to place an order; make a payment; prepare an order and finally serve the order. Estimates varied from 45 seconds (Mr Barber) to 90 seconds or longer (Mr Ker). Mr Barber gave evidence that for financial viability the coffee outlet needed to attract between 1000 and 1500 vehicles per week, or 200 to 300 per day. The peak period would be between 7 am and 9 am in the morning.
36 The obvious concern is whether this coffee outlet would result in vehicles queuing on to Beaufort Street, particularly during the hours of
(Page 9)
- 7 am to 9 am. The Tribunal was concerned at the lack of an expert traffic report and did not feel that the issue of traffic volume had been addressed thoroughly enough, given the potential to disrupt city bound traffic during peak times.
37 Mr Ker was also concerned with the issue of pedestrian safety. It was his evidence that pedestrians could be endangered by both the increase in volume of vehicles using the existing crossovers and the possibility of vehicles straddling the footpath while waiting to enter and leave the subject land. The Precinct Policy regards the "safe accessible movement for pedestrians, cyclists, public transport and other vehicles" as an important aim for the area. The Precinct Policy will be discussed in more detail below.
38 The Tribunal accepts that this application is for a temporary period but agrees with Mr Ker when he says that the temporary nature does not affect the potential traffic and safety issues. As Senior Member Parry noted in Fryer and City of Subiaco [2006] WASAT 199 at [103], "the Tribunal should, in relation to matters of public health and safety, adopt a precautionary approach". I am not satisfied that the development is likely to have an acceptable impact in terms of traffic safety and convenience in the absence of an expert traffic assessment.
39 With regard to the argument that approval of the proposal will result in the upgrade of the subject land in the short term, the Tribunal does not consider the proposed physical changes to be a considerable change. The existing buildings are to remain, as is the openness of the site and much of the existing bitumen surface. The addition of a small single storey building in the centre of the site with a section of grass in front and behind does not result in considerable physical change.
40 The fact that the landowner has stated that the subject land will not be fully developed in the next 5 to 10 years is not a reason to grant approval.
41 The Tribunal therefore finds that the proposed development will unduly affect the orderly and proper planning and the preservation of the amenities of the locality.
(Page 10)
Does the development comply with the building height/scale and pedestrian environment requirements of the council's policy relating to the Mount Lawley centre precinct?
42 The Precinct Policy states that in the Mount Lawley Centre Precinct "the ribbon form of development along Beaufort Street and Walcott Street should be reinforced with nil setbacks, continuous interactive fronts and weather protection for pedestrians, particularly in the main shopping area".
43 In particular in the commercial area, which includes the subject land, "new buildings are to be of a height and scale generally compatible with existing buildings and offer an environment conducive to pedestrian movement".
44 The Precinct Policy Development Standards specify additional standards relating to height and setbacks. Two storey buildings are encouraged and three storey buildings will be considered. Setbacks are to be consistent with those on adjoining land.
45 It is Mr Turnbull's evidence that "due to the nature of the proposed use, the general intentions of the Mount Lawley Centre Precinct and requirements relating to building height and scale are difficult to achieve". He contends that the respondent has incorrectly applied the Precinct Policy requirements as this proposed land use requires a different built form than general commercial/residential buildings.
46 Mr Bain states that the proposed drive-through coffee outlet would be an under-utilisation of the subject land and result in a gap in the streetscape. He says that the respondent is of the view that a "proposal of this nature will have a detrimental impact on intention of the Mount Lawley Centre Precinct and therefore, potentially to have an undue impact on the streetscape and the amenity of the immediate and surrounding area".
47 It is the view of the Tribunal that the proposal does not comply with the building height/scale and pedestrian requirements of the Council's Policy relating to the Mount Lawley Centre Precinct. The nature of the proposed use does not warrant a departure from the Policy. Although the proposed use is capable of approval under TPS 1, it could be accommodated in a built form that substantially complies with the Precinct Policy.
(Page 11)
Does the proposed main sign comply with the monolith sign requirements of the Council's policy relating to signs and advertising?
48 The parties agreed that the issue of signage could be dealt with by way of a condition that the sign comply with the "Pylon Sign" requirements under the Town of Vincent Signs and Advertising PolicyNo 3.5.2.
Conclusion
49 The Tribunal has determined that the proposed development will unduly adversely affect the orderly and proper planning and the preservation of the amenities of the locality. It has also determined that the proposed drive-through coffee outlet does not satisfy the requirements of the respondent's Precinct Policy with regard to building height/scale and pedestrian environment requirements.
50 It follows that the application for review should be dismissed and the decision of the Council to refuse development approval should be affirmed.
Orders
51 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent made on 22 November 2006 to refuse development approval for a drive-in fast food outlet (coffee outlet) at 462 Beaufort Street, Mount Lawley is affirmed.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, SENIOR SESSIONAL MEMBER
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