Hunter & Anor and City of Rockingham - [2008] WASAT 28

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HUNTER & ANOR and CITY OF ROCKINGHAM [2008] WASAT 28

MEMBER: MS M CONNOR (MEMBER)
MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: 18, 19 & 21 SEPTEMBER 2007 (FURTHER WRITTEN SUBMISSIONS RECEIVED 3 OCTOBER 2007; 25 OCTOBER 2007; 31 OCTOBER 2007; 2 NOVEMBER 2007; 15 NOVEMBER 2007)

DELIVERED : 7 FEBRUARY 2008

FILE NO/S: DR 161 of 2007

BETWEEN: MC HUNTER
ELFA PTY LTD
Applicants
AND
CITY OF ROCKINGHAM
Respondent

Catchwords:

Town planning - Development application - Mixeduse development - Offices, Café and Multiple Dwellings - Car parking shortfall - Reciprocal car parking arrangements between office and residential components - Limitation on patron numbers used to calculate the number of car parking bays required for the café use - Use of verge area for car parking to overcome car parking shortfall - Whether condition requiring consent for use and construction of car parking bays in the verge areas is futile - Whether a cash payment in lieu of car parking is required for the verge car parking and reciprocal car parking arrangements - Plot ratio - Noncompliance with Acceptable Development provisions - Test is whether the particular application meets the Performance Criteria - Streetscape objectives - Built form, bulk, scale and height - Compatibility of development with its setting - Amenity impacts - Use of Access Road as sole access and egress to development - Traffic generation and effect on traffic flow and safety - Impact of bin storage areas

Legislation:

City of Rockingham Town Planning Scheme No 2, cl 1.6, cl 3.2.1, cl 4.6.1, cl 4.6.2(a), cl 4.6.3, cl 4.6.4, cl 4.6.5, cl 4.15, cl 4.15.3, cl 4.15.4, cl 4.15.5, cl 4.15.6, cl 4.20, cl 4.20.1, cl 4.20.3, cl 6.6, Table 1, Table 2, Schedule No 1 - Interpretations
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Residential Design Codes of Western Australia (2002), cl 4.2.1, Pt 1, cl 4.2.1A1(iii)

Result:

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

Category: B

Representation:

Counsel:

Applicants: Mr M Flint
Respondent: Mr L Tsaknis

Solicitors:

Applicants: Lavan Legal
Respondent: Woodhouse Legal

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

Boulter and City of Subiaco [2007] WASAT 71 at [30]
Moore River Company Pty Ltd & Western Australian Planning Commission [2006] WASAT 269
Pearl Bay Enterprises Pty Ltd & Shire of Harvey (2007) 154 LGERA 348
Sweetland and Town of Cambridge [2005] WASAT 278 at [36]

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

MC Hunter & Elfa Pty Ltd applied to the State Administrative Tribunal for review of the City of Rockingham's decision to refuse planning consent for the construction of a three-storey development comprised of 10 residential apartments, three commercial units and a café on Lot 1 (No 114) Foreshore Drive, Singleton.
The matter proceeded to mediation where modifications were made to the proposal. The Tribunal was of the view that the modifications were not, in substance, a different proposal and as such, leave was granted to amend the application by substituting the amended plans.
The following four principal issues emerged for consideration in the review:
1)Does that part of the proposed development which comprises the proposed café and the proposed offices comply with standards and requirements prescribed under the City of Rockingham Town Planning Scheme No 2?
2)If the answer to (1) above is no, is the State Administrative Tribunal satisfied as to the matters set out in cl 4.20.3 of the City of Rockingham Town Planning Scheme No 2, and should the Tribunal approve the proposed development notwithstanding that the proposed development does not comply with those standards and requirements?
3)Does that part of the proposed development which comprises multiple dwellings meet the Performance Criteria set out in cl 4.2.1 of the Residential Design Codes of Western Australia (2002), in respect to plot ratio?
4)In any event, should the proposed development be granted planning approval having regard to the matters set out in cl 6.6 of the City of Rockingham Town Planning Scheme No 2?
The matters in dispute between the parties in regard to issues (1) and (2) related to the adequacy of car parking provided on‑site for the proposed development. The Tribunal found that there was an eight car parking bay shortfall in the minimum number of car parking bays that were required to be provided on‑site for the development. However, the Tribunal was persuaded that it was appropriate, given the circumstances of this particular application, to take into consideration the provision of 10 additional car parking bays located adjacent to the development in the verge areas along Singleton Beach Road and Foreshore Drive in determining whether the car parking requirements for the proposed development had been satisfied. The Tribunal determined that the 27 car parking bays provided on‑site, together with the additional 10 car parking bays located in the verge areas was sufficient to meet the demand generated by the proposed development and that it was appropriate to exercise the discretion available under cl 4.20 of the City of Rockingham Town Planning Scheme No 2 to modify the provision of on‑site car parking for this development.
In regard to the issue of the height, bulk and scale of the proposed development, the Tribunal considered the compatibility of the development with its setting and its relationship with adjoining land, and found that the proposed three storey design minimised the impact on the existing fabric and was appropriate given that future development in the locality is likely to be two storeys. The Tribunal found that the design of the building satisfied the performance criteria of the Residential Design Codes of Western Australia (2002) in regard to streetscape objectives.
The Tribunal also considered issues relating to traffic generation, access to and egress from the development and the impact of the bin storage areas on the amenity of No 18 Indiana Parade. The Tribunal found that the increase in traffic volume and risk on Indiana Parade from traffic generated by the development was minimal and would not be contrary to the reasonable expectation of residents. Further, the Tribunal was satisfied that the amenity of No 18 Indiana Parade would not be unreasonably affected by the headlights of vehicles turning left onto Indiana Parade from the development or by the proposed bin storage areas.
The Tribunal considered that the proposed development would not prejudice the orderly and proper planning for the locality, and as such, the application for review was allowed and planning approval granted subject to conditions.

Introduction

MC Hunter & Elfa Pty Ltd (applicants) made application to the City of Rockingham (respondent or City) on 21 December 2006 for approval to construct a three storey development comprised of 10 residential apartments, three commercial units and a café on Lot 1 (No 114) Foreshore Drive, Singleton (subject land). The application for review arises from a deemed refusal against the City of Rockingham's failure to determined the application.
Notwithstanding the lodgement of the application for review on 3 May 2007, the City issued a "Form 2 Notice of Refusal" on 23 May 2007, stating the following reasons for refusal:
"(i)The location of access and ingress to the development from Indiana Parade will generate traffic not in keeping with the residential amenity of the street.
(ii)The proposed development has an inadequate provision of on-site car parking relative to the standards contained in the City of Rockingham Town Planning Scheme No 2;
(iii)The height and scale of the development is not in keeping with the suburban character of the locality;
(iv)Under the provisions of the [Codes], Clause 4.2.1 A1, the proposed development must be in keeping with the multiple dwelling requirements of the R60 Code. The proposed development exceeds this requirement;
(v)The location of the bin storage area on Indiana Parade will detract from the amenity of nearby landowners; and
(vi)The provision of angled street parking on Singleton Beach Road is a potential traffic hazard."
The matter proceeded to mediation where modifications were made to the proposal. The parties sought leave of the Tribunal to substitute the amended plans in place of the original plans with a view to having the revised plans and certain specific particulars made the subject of the Tribunal's review. The Tribunal was of the view that the modifications were not, in substance, a different proposal (Moore River Company Pty Ltd & Western Australian Planning Commission [2006] WASAT 269), and as such, leave was granted to amend the application by substituting the amended plans (A01 dated 29 June 2007; A02, A03 and A04 dated 28 June 2007) as the plans the subject of review and for the following specific particulars to form part of the application:
•The proposed use of the three ground floor units other than the café is that of "Office" as that term is defined in the City of Rockingham Town Planning Scheme No 2 (TPS 2 or Scheme);
•The café is restricted to a maximum of 40 patrons at any one time; and
•One of the two car parking bays allocated to each apartment is to be the subject of a reciprocal parking arrangement with the three office units, with each of the three office units having three additional car parking bays by the arrangement. The allocations of reciprocal car parking bays are marked on plan A01 dated 29 June 2007.

Subject land and site context

The subject land is more particularly described as Lot 1 Foreshore Drive, Singleton, being the land comprised in Certificate of Title Volume 1844 Folio 648. Lot 1 is 1506 square metres in area and has a frontage to Foreshore Drive of 25.95 metres, a frontage to Singleton Beach Road of 50.91 metres and a frontage to Indiana Parade of 12.72 metres. The subject land is vacant unimproved land with no significant vegetation.
The subject land is located in a prominent location opposite the beach foreshore and on a main entry road to the Singleton locality (Singleton Beach Road). It is the only commercially zoned land located within the residential locality adjacent to the foreshore area. The surrounding residential area is predominantly single storey east of Indiana Parade and two storey west of Indiana Parade; there is one three storey residential dwelling some 500 metres from the subject land.

The proposal

The proposal entails a three storey mixed use development comprising a café and alfresco area and three office tenancies at ground level with nine multiple dwellings above (see Attachment 1).
The gross floor areas of each of the components are as follows:
•Café (including kitchen and toilets) - 216.98 square metres;
•Office - 318 square metres; and
•Multiple dwellings - plot ratio floor area is in dispute -1197 square metres (applicants' position) 1289 square metres (respondent's position).
A total of 27 car parking bays have been provided on‑site behind the café and office tenancies at ground level, with access via a crossover from Indiana Parade. An additional eight verge car parking bays are proposed along Singleton Beach Road with an additional two verge car parking bays proposed along Foreshore Drive. One of the two car parking bays allocated to each apartment is to be the subject of a reciprocal parking arrangement with the three office units, giving each of the three offices three additional car parking bays during business hours.
The building presents as a three storey development from all elevations and has been designed to have virtually nil setbacks to Singleton Beach Road and Foreshore Drive. The maximum building height proposed is 10.5 metres from natural ground level. The building has been designed with a flat roof. All apartments have large balconies as an extension of their living/dining areas and smaller balconies off their main bedrooms. Two bin storage areas have been provided on‑site; one located behind the office fronting Foreshore Drive and the other near the Indiana Parade street frontage.

Statutory Planning framework

The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Commercial" under TPS 2. With the exception of the foreshore area which is reserved "Parks and Recreation", the surrounding land is zoned "Residential" under TPS 2.
Clause 1.6 of TPS 2 sets out both the "General Objectives" and "Specific Objectives" of the Scheme. More specifically, cl 4.6.1 specifies the objective for the "Commercial" zone, which states:
"To provide for the development of District, Neighbourhood and Local shopping facilities to cater for the present and future residents of the City consistent with the Council's Local Commercial Strategy and supported by any other Plan or Policy that the Council from time to time may adopt as a guide for the future development within the Zone."
No evidence was produced by the parties indicating that the proposed development was inconsistent with the Council's Local Commercial Strategy or any other plan or policy.
Clause 3.2.1 of the Scheme refers to "Table No 1 - Zoning Table" (Zoning Table) which indicates use permissibility in various zones. The use classes in this instance were identified as "Office", "Multiple Dwelling" and "Restaurant", all of which are classified as "D" uses in the Zoning Table (not permitted unless the local government has exercised its discretion by granting planning approval). The café use referred to in the application is not listed as a specific use in the Zoning Table; however, it is considered that this use falls within the definition of "Restaurant" as defined in "Schedule No 1 - Interpretations" of the Scheme.
In considering the "Form of Development" in the "Commercial" zone, subclause 4.6.2(a) of TPS 2 requires that the City ensure that the site planning, scale, built-form, elevations and landscaping of the development positively contributes to the streetscape, appearance and amenity of the locality.
Clause 4.6.3, cl 4.6.4 and cl 4.6.5 of the Scheme set out development requirements specifically related to development within the "Commercial" zone, which are as follows:
"4.6.3Parking
Provision shall be made for the on‑site parking of motor vehicles in all development in the Commercial Zone in accordance with the provisions of clause 4.15 and Table No 2.
4.6.4Setbacks
In assessing applications for planning approval, the Council shall take into account the following requirements when determining the setbacks for developments in the Commercial Zone:-
(a)where a development is proposed to be located on a lot having a common boundary with a Residential zoned lot or residential use class, the setbacks shall not be less than those prescribed in the Residential Design Codes for the particular density code of the adjoining residential lot.
(b)in all other cases, setback to be determined by the Council taking into account the principles outlined in clause 4.6.2 and the requirements of the Building Code of Australia.
4.6.5Landscaping
(a)Subject to (b) below, within any development in a Commercial zone a minimum of ten percent (10%) of the total site area shall be provided as landscaping in the form approved by the Council. The area of the site required to be provided under this sub-clause shall not include areas which would normally be set aside for pedestrian movement.
(b)Where the provision of ten percent (10%) of the total site area as landscaping is not practicable, the Council may consider an equivalent contribution towards streetscape works in the public streets adjoining the property, based on the principles outlined in clause 4.6.2. Streetscape works may incorporate elements such as kerbside parking, pedestrian footpaths, soft landscaping, street trees, lighting and street furniture."
Car parking requirements for development are specified in cl 4.15 of the Scheme. Clause 4.15.3 requires that, subject to the provisions of cl 4.15.4 and cl 4.15.6, car parking bays required to be provided under the Scheme in relation to any use or development shall be provided on the site of such use or development. Furthermore, cl 4.15.5 provides that where a development contains a variety of uses, car parking shall be calculated on an individual‑use basis in accordance with the requirements prescribed in Table No 2 and cl 4.15.2. and, if applicable, the Residential Design Codes of Western Australia (2002) (Codes).
The minimum car parking requirement for the proposed uses as specified under "Table No 2 - Carparking Table" (Table 2) are as follows:
•Office - one bay per 20 square metres of Nett Leaseable Area (NLA);
•Residential - as per the Residential Design Codes, which specify the following for Mixed‑Use Development:
-"Acceptable Development" - as for Multiple Dwellings; may be reduced to one per dwelling where on-site parking required for other users is available outside normal business hours;
-"Performance Criteria" - provide car parking to satisfy reciprocal requirements of residents and other users.
•Restaurant - 1 bay for every four persons the building is designed to accommodate.
The Scheme also makes provisions for reciprocal parking and cash‑in‑lieu of parking. Clause 4.15.4 relates to reciprocal parking and provides that:
"Where a development comprises separate uses that operate at different times to one another, the Council upon being satisfied that such separate operating times will be permanent, may determined that parking requirements on a reciprocal-use basis, providing conditions specifying separate operating times are imposed on the planning approval and these conditions are complied with at all times."
Clause 4.15.6 provides for cash‑in‑lieu of parking provision and states:
"The Council may agree to accept a cash payment in lieu of the provision of carparking, but subject to the following requirements:
(a)the cash-in-lieu payment shall not be less than the estimated cost to the owner or developer of providing and constructing the parking bays required by this Scheme, plus the value, as estimated by a sworn valuer appointed by the Council, of that area of his land which would have been occupied by the parking spaces and manoeuvring area;
(b)payments made under this clause shall be paid into a parking fund to be used for the provision of public carparking facilities. The Council may use this find to provide public parking facilities anywhere within reasonable proximity to the subject land in which a cash‑in‑lieu arrangement is made; and
(c)all costs incurred in obtaining the valuation shall be borne by the developer proposing the cash-in-lieu contribution."
Clause 4.20.1 of the Scheme provides, except for development in respect of which the Codes apply, discretion to modify development standards. The power conferred by this clause may only be exercised if the Council is satisfied that:
"(a)approval of the proposed development would be appropriate having regard to the criteria set out in clause 6.6;
(b)approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenity of the locality;
(c)the non-compliance will not have any adverse effect upon the occupiers or users of the development, the inhabitants of the locality or the likely future development of the locality; and
(d)the spirit and purpose of the requirements or standard will not be unreasonably departed from."

Clause 6.6 of TPS 2 sets out the matters to which consideration is to be given in the determination of an application. The relevant matters relating to these proceedings are as follows:
•The objectives and provisions of the Scheme and the MRS (subclause (a));
•The requirements of orderly and proper planning (subclause (b));
•The compatibility of a use or development with its setting (subclause (i));
•The preservation of the amenity of the locality (subclause (o));
•The relationship of the proposal to development on adjoining land or on other land in the locality but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal (subclause (p));
•Whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the parking of vehicles (subclause (q));
•The amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety (subclause (r));
•Any relevant submissions received on the application (subclause (z)); and
•Any other planning consideration considered relevant (subclause (z)(b)).

Issues

The following four principal issues were identified by the parties as matters for consideration in the review:
1)Does that part of the proposed development which comprises the proposed café and the proposed offices comply with standards and requirements prescribed under TPS 2?
2)If the answer to (1) above is no, is the Tribunal satisfied as to the matters set out in cl 4.20.3 of the Scheme and should the Tribunal approve the proposed development notwithstanding that the proposed development does not comply with those standards and requirements?
3)Does that part of the proposed development which comprises multiple dwellings meet the Performance Criteria set out in cl 4.2.1 of the Codes in respect to plot ratio?
4)In any event, should the proposed development be granted planning approval having regard to the matters set out in cl 6.6 of TPS 2.
The Tribunal will address each issue in turn. In order to gain a full appreciation of the issues, a view was held during the hearing.

Does that part of the proposed development which comprises the proposed café and the proposed offices comply with standards and requirements prescribed under TPS 2?

The respondent contended that the part of the development which comprised the proposed offices and café did not comply with the requirements of the Scheme in respect to on-site car parking. Clause 4.6.3 of the Scheme requires that "[p]rovision shall be made for the on‑site parking of motor vehicles in all development in the Commercial Zone in accordance with the provisions of clause 4.15 and Table No 2".
Mr Allerding, a town planning consultant called by the respondent, calculated the car parking requirement as follows:

Use	Rate	Bays required
Office	1/20 square metres NLA	16 bays
Residential	Two per dwelling	18 bays
Café/Restaurant	One bay per four persons the building is designed to accommodate	20 bays

Mr Allerding, in considering the "Minimum Carparking Requirement" for café/restaurant use as specified in Table 2, was not satisfied that calculating the car parking requirement for the café use based on a limitation of 40 patrons was consistent with the intent of that requirement. He considered that the Scheme anticipated the need to apply a design criteria to the building itself in order to determined the number of car parking bays required for the use. As a detailed layout of the premises had not be provided as a part of the application, Mr Allerding undertook an analysis of similar café/restaurants on the Rockingham foreshore in order to establish the average area per person per square metre for this type of use. Mr Allerding’s methodology "involved an assessment of the available area of the café/restaurant and a physical count of available seats to ascertain an average persons per square metre". Based on this assessment, he calculated that the average person per square metre was one person per 3.46 square metres (internal) and one person per 1.6 square metres (alfresco). Using these ratios, Mr Allerding asserted that the café would be capable of accommodating 78 patrons, which would require the provision of 20 car parking bays.
Based on these calculations, the respondent contended that a total of 54 car parking bays were required to be provided on‑site in order to satisfy the prescribed car parking requirements of the Scheme.
It was acknowledged by the respondent that cl 4.15.4 of the Scheme provided for reciprocal parking and that the development proposed a reciprocal parking arrangement for nine car parking bays between all of the offices and residential units. It was also acknowledged that the Codes contemplated reciprocal parking for mixed‑use developments (cl 4.2.1A1(iii) dot point four). It was accepted by the respondent that there was generally a high degree of compatibility between the office and residential uses, and agreed by both the traffic engineers, Mr Riley called on behalf of the applicants and Ms Round called on behalf of the respondent, that "reciprocal parking is accepted as an appropriate method of meeting the parking requirements of the development". Ms Round did consider that as a consequence of the reciprocal arrangement there may be occasions where parking may overspill into the residential area. However, it was generally accepted by all the experts that the demand for car parking by the uses proposed would not unreasonably coincide so as to render the arrangement unacceptable. The respondent, accepting that the proposed reciprocal parking arrangement notionally increased the car parking bays to 36, asserted that the extent of the deficiency in the provision of car parking bays on‑site equated to 18 car parking bays.
The applicants disputed the calculations of the respondent and called Mr Simpson, a town planning consultant, to give evidence. Mr Simpson's assessment of the car parking requirements of the Scheme calculated that a total of 44 car parking bays was required to be provided on‑site. He submitted that the following car parking bays were required for each of the uses:
•Office - 16 car parking bays;
•Café - 10 car parking bays (based on a maximum of 40 patrons); and
•Multiple Dwellings - 18 car parking bays.
Mr Simpson accepted that there was a deficiency of eight car parking bays for the café use and that discretion was being sought under cl 4.20 of TPS 2 to modify the car parking requirements prescribed by the Scheme for the eight car parking bay shortfall. The applicants argued that Mr Allerding's analysis of the car parking requirements in relation to the café parking was misguided, as his calculation was based on gross floor area and not seating area and that there was no evidence as to how the café will be designed, other than it will be limited to 40 patrons at any one time. The applicants were also at pains to point out that Ms Round considered 10 car parking bays to be sufficient for the café use and had agreed under cross‑examination that there was sufficient parking provided for the proposed development.
The applicants further submitted that even if Mr Allerding's analysis were correct at a technical level, and that the 20 on‑site bays were required based on a calculation of floor area to patrons, there is discretion under the Scheme to modify the requirements to require the number of bays that equate to the fixed number of patrons.
The Tribunal is satisfied that a limitation on the number of patrons is capable of restricting the detailed design layout of the building to the number specified by the limitation, and as such, a calculation for car parking based on the number of patrons is the same as "the building is designed to accommodate". Given that it is proposed that the number of patrons permitted to use the café at any one time is to be limited to 40 patrons, the provision of 10 car parking bays for the café/restaurant use is considered necessary to satisfy the minimum car parking requirement, as specified in Table 2 of the Scheme. On this basis, the Tribunal finds that in order to comply with the requirements of Table 2 a minimum of 44 car parking bays should be provided on‑site. Accepting that the proposed reciprocal parking arrangement notionally increases the number of car parking bays to 36, the Tribunal considers there to be an eight car parking bay deficiency in the minimum number of car parking bays that are required to be provided on‑site.
However, if the Tribunal is wrong in its consideration relating to the effects of the limitation on number of patrons on the design of the building, discretion exists under cl 4.20 of the Scheme to approve an application that requires a variation to the prescribed requirements of the Scheme. The Tribunal considers that a limitation on number of patrons for café/restaurant use may be one such instance where a variation in the car parking requirements could be supported. In this case, the Tribunal is satisfied that, given that the maximum number of patrons permitted to use the café at any one time is to be limited to 40 patrons, a reduction in the car parking requirements to 10 car parking bays is considered to be consistent with the intent of the Scheme, and that the variation would be appropriate having regard to the matters set out in cl 4.20.3 of the Scheme.
Given the Tribunal's findings above, the answer to (1) is no as there is an eight car parking bay shortfall in the minimum number of car parking bays that are required to be provided on‑site for the proposed development.

If the answer to (1) above is no, is the Tribunal satisfied as to the matters set out in cl 4.20.3 of the Scheme and should the Tribunal approve the proposed development notwithstanding that the proposed development does not comply with those standards and requirements?

The applicants argued that the shortfall of car parking on‑site was to be overcome by the provision of ten additional car parking bays located adjacent to the development within the verge areas along Singleton Beach Road and Foreshore Drive. In addition, the applicants argued that even if the verge car parking did not eventuate, there is more than sufficient car parking by way of the foreshore parking area located off Foreshore Drive to adequately cater for the demand generated by the proposed development. This car parking area has in excess of 70 car parking bays. The applicants argued that the foreshore parking area is a relevant consideration given that there will be significant cross‑visitation between the beach and the café, as the café will be part of the beachfront scene.
The respondent agreed with the applicants that the verge car parking could be taken into account, but submitted that it was a matter for the respondent to determine whether it would give its consent to the use of the land for that purpose. The respondent further submitted that the need for consent was not a ground for refusing the application, but should form a condition of any approval. The respondent also argued that any reliance on the foreshore car park to overcome any deficiency in car parking to satisfy the demand generated by this development was contrary to the orderly and proper planning of the locality. However, the respondent conceded that if the Tribunal were to find that the car parking bays located in the verge area were acceptable, then the eight car parking bays shortfall would effectively be satisfied.
The issue for the Tribunal is whether the proposed verge car parking should be taken into consideration in determining whether the car parking requirements for the proposed development have been satisfied.
TPS 2 requires that car parking for all developments within the "Commercial" zone be provided on‑site (cl 4.6.3; cl 4.15.3), although discretion is available under cl 4.20 of the Scheme to modify development standards and requirements prescribed under the Scheme, which would include car parking requirements.
The planning experts, Mr Simpson and Mr Adam for the applicants, and Mr Allerding for the respondent, accepted that, as a general principle of planning any parking demand generated by a development should be provided on‑site. It was further established that there are no policies or strategies for the locality that contemplate the use of verge car parking as a means of satisfying parking demand generated by development. However, all the experts agreed that the best location for car parking for patrons of the café is the proposed verge parking for reasons including convenience and lessening any perceived impact on the residence at No 18 Indiana Parade. Mr Rowlands, the owner of No 18 Indiana Road, also perceived that the impacts of the proposed development would be worse if the café car parking was located in the rear car park.
The factual context of this particular application that distinguishes this site from other "Commercial" zoned lots in the City of Rockingham is that it is the only "Commercial" zoned lot within the Singleton locality that is situated on the foreshore road adjacent to the public foreshore area. The relationship between the subject land and the foreshore area is therefore particularly significant in this locality as there is a need to ensure that there is a positive connectivity between the two activities. The café use was considered to be an appropriate use that would service both the local community and the beach users. All the experts agreed that car parking for the café use needed to be conveniently located and highly visible, and that locating the café car parking bays in the verge area was a better planning outcome than at the rear of the proposed building. It was also agreed that locating the café parking on‑site in front of the building would result in an adverse outcome that would be detrimental to streetscape and urban form.
The Tribunal is persuaded by the evidence in this case that the use of the verge areas for the provision of car parking for the café use is the correct and preferable location and as such, considers it appropriate to take the verge car parking into consideration in determining whether the car parking requirements for the proposed development have been satisfied. Given this position, the Tribunal is satisfied that if the car parking within the verge areas are constructed then the car parking shortfall for the proposed development will be met. However, as the exercise of discretion to modify the car parking requirements relating to the number of car parking bays to be provided on‑site is contingent upon the car parking bays in the verge areas, the Tribunal must be satisfied that these car parking bays will be provided as a part of this development. It was common ground between the parties that the verge car parking could be taken into consideration in the determination of this application, but that it did not form part of the application under consideration. It was also agreed that further consent from the appropriate authority was required for approval to construct the car parking bays in the verge area. More explicitly, the applicants stated that they "[did] not assert that the Tribunal has power under s 29(1) of the State Administrative Tribunal Act 2004 to grant them consent to develop and use the road reserves for car parking". The parties considered that the matter of the car parking bays in the verge could be affected by the imposition of a condition on any approval. There was no suggestion by the parties that a condition of this nature would be futile.
The Tribunal, in Pearl Bay Enterprises Pty Ltd & Shire of Harvey (2007) 154 LGERA 348, considered whether the imposition of a condition on the grant of development approval for a site requiring the construction of a private sewer in roads would be futile given that the Shire had indicated its opposition to such a proposition. The Tribunal found ([49] to [52]) that such a condition would not be futile for two reasons; firstly, the local government is not the only entity from which consent to the use of the road verge can be obtained; and secondly, the Shire's opposition does not mean that its opposition will remain indefinitely. The circumstances are similar in this case, and as such, the Tribunal is satisfied that a condition requiring approval for and construction of car parking bays within the verge areas will not be futile and is an appropriate mechanism to ensure that the verge car parking will be provided as a part of this development.
The Tribunal considers the 27 car parking bays provided on‑site, together with the additional 10 car parking bays located in the verge areas to be sufficient to meet the demand generated by the proposed development and satisfies the matters set out in cl 4.20.3 of TPS 2 and as such, determines that it appropriate to exercise the discretion available under cl 4.20 of the Scheme to modify the provision of on‑site parking for the development accordingly.
The need to consider the merits of the use of the foreshore car park to satisfy the demand generated by the proposed development is unnecessary given the findings of the Tribunal above.
The respondent asserted that in the case of the 10 car parking bays constructed on the verge areas, the applicants should not be exempted from having to pay for the use of that land. The respondent contended that cl 4.20.1 of the Scheme (approval of a non‑compliant application) did not purport to exclude the operation of cl 4.15.6 (cash‑in‑lieu of parking provision). The Tribunal agrees with this proposition, however, in this instance the shortfall in car parking is being satisfied by the provision of car parking bays on the verge areas and therefore, the requirement to make a cash payment in lieu of car parking is not required. If this were not the case, then the Tribunal would need to address the respondent's submissions questioning whether the Tribunal could exercise the power conferred under cl 4.15.6 of the Scheme to accept cash payment in lieu of the provision of car parking and if so, whether a cash‑in‑lieu payment was appropriate in the context of the policy framework and the likelihood of public car parking facilities being provided in reasonable proximity to the subject land. The Tribunal does not have to turn its mind to these issues as it is satisfied that the shortfall will be satisfied by the provision of car parking bays on the verge areas and therefore the question of a cash payment in lieu of provision of car parking does not arise.
The respondent, during the hearing, also seemed to be suggesting that the nine reciprocal car parking bays should also be subject to the cash‑in‑lieu of parking provision of the Scheme. This line of argument was not reflected in the "without prejudice" draft conditions where the respondent sought a cash payment in lieu of the provision of 18 car parking bays - which equates with the 18 car parking bay deficit asserted by the respondent. If this issue had been pursued by the respondent, the Tribunal, having being satisfied that the demand for parking by the uses proposed would not unreasonably coincide, would not have considered it appropriate to impose a condition requiring a cash payment for the reciprocal parking arrangements.

Does that part of the proposed development which comprises multiple dwellings meet the Performance Criteria set out in cl 4.2.1 of the Codes in respect to plot ratio?

It was common ground between the parties that the proposed development did not comply with the acceptable development requirement for plot ratio as specified in dot point eight of cl 4.2.1A1(iii) of the Codes. There was dispute as to the extent of non‑compliance, varying between 0.09 (136 square metres) to 0.16 (241 square metres).

Mr Allerding, in his witness statement, described the non‑compliance as requiring a dispensation and "considered that the extent of the dispensation sought in this instance exceeds what are reasonable expectations of this for this site as provided for by the [Codes]". Under cross‑examination, Mr Allerding accepted that the Codes provided for a flexible approach, and that the applicants could elect to either comply with the acceptable development provisions or satisfy the performance criteria, and conceded that a dispensation was not what was being sought, but an assessment under the performance criteria.
The application of the Codes where a departure from an acceptable development provision is contemplated has been previously been addressed by the Tribunal, in Sweetland and Town of Cambridge [2005] WASAT 278 at [36] and in Boulter and City of Subiaco [2007] WASAT 71 at [30], where the Tribunal found:
"[W]here there is non-compliance with the Acceptable Development provisions, it is not appropriate then to test the matter by reference to the departure from those requirements. Rather the test is whether the particular application meets the Performance Criteria, thereby satisfying the objective: Choice Constructions Pty Ltd v Town of Vincent [2003] WATPAT 71; Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4.
Therefore, the focus should not be the number of variations sought or the extent to which the variations differ from those set out in the Acceptable Development provisions. However, it is incumbent upon the applicant to demonstrate that the Performance Criteria have been satisfied and that the proposed development meets the General Objectives of the Codes."
As the plot ratio of the proposed development is non‑compliant with the relevant acceptable development provision of the Code, the test is whether the application meets the performance criteria, thereby satisfying the relevant objective of the Codes. Clause 4.2.1P1 of the Codes sets out the performance criteria for "Dwellings in Mixed‑Use Development", which states:
"Dwellings combined with non-residential uses on the same site that provide comparable standards of amenity to other Multiple Dwellings taking account of the need to:
•satisfy streetscape objectives;
•provide open space in accordance with resident needs; and
•provide car parking to satisfy reciprocal requirements of residents and other users."
The planning experts agreed that the surrounding area is predominantly single storey east of Indiana Parade and two storeys west of Indiana Parade, and that there was a least one three storey dwelling located approximately 500 metres to the south of the subject land. It was further agreed that as a principle, an overall building height of three storeys was appropriate; although Mr Allerding considered that the three storey element should focus on the corner of Foreshore Drive and Singleton Beach Road. He argued that the interface of the development with Indiana Parade was not acceptable and that a more appropriate and lower scale transition was required along Singleton Beach Road towards its interface with Indiana Parade. He contended that the height and form of the development was not consistent with the existing character of the locality and as such did not satisfy streetscape objectives.
Mr Rowland (owner of No 18 Indiana Parade) accepted that the zoning of the land allowed the development of greater mass and height in comparison to the existing surrounding residential developments and did not object to the three storey aspect of the building. He was, however, concerned about other elements of the development, which will be addressed by the Tribunal under the following section.
The fact that the subject land is located at the junction of the main entry road into Singleton and the beach front access road and is zoned "Commercial" are a relevant considerations in assessing the impact of the built form, bulk, scale and height of the development on its surroundings. Given this context, a building of three storeys in height with nil setbacks to Singleton Beach Road and Foreshore Drive is considered to be appropriate. However, the interface between the development at the junction of Singleton Beach Road and Indiana Parade, and the Indiana Parade frontage is of particular significance as the design will affect the visual relationship between the residential use situated on the eastern side of Indiana Parade and the mixed‑use development. Although the building presents as a three storey structure at the junction of Singleton Beach Road and Indiana Parade, it has been designed so that the bulk of the structure focuses towards Singleton Beach Road, with relatively little building mass fronting onto Indiana Parade. The Tribunal considers that the proposed three storey design minimises impact on the existing fabric and is appropriate given that future development in the locality is likely to be two storeys. The Tribunal is, therefore, satisfied that the design of the building meets the streetscape objectives, and as such, the proposed development satisfies the performance criteria of the Codes, although further improvements, as suggested by the planning experts in their joint statement, could be made to ameliorate the impacts of the car parking area on Indiana Parade.

In any event, should the proposed development be granted planning approval having regard to the matters set out in cl 6.6 of TPS 2?

The specific matters of concern raised by the respondent can be separated into three areas:
•The compatibility of the development with its setting and the relationship of the proposal to development on adjoining land and likely effect of the of the height, bulk, scale, orientation and appearance of the proposal;
•Traffic related issues - the means of access to, and egress from, the site; the provision car parking for vehicles; traffic generation and the probable effect on traffic flow and safety; and
•Other amenity impacts.

Setting and Relationship with adjoining land

The Tribunal considered the compatibility of the development with its setting and its relationship with adjoining land in its determination of issue 3 above. Subject to the provision of a screen wall and landscaping along the Indiana Parade frontage to screen the car parking area, the Tribunal is satisfied that the development is compatible with its setting and will positively contribute to the streetscape, appearance and amenity of the locality.

Traffic related issues

The respondent contended that the location of the access and egress point from the proposed development onto Indiana Parade will generate traffic not in keeping with the residential amenity of the street, which will adversely affect the amenity of the residents at No 18 Indiana Parade. The respondent argued that Indiana Parade was an "Access Road", and as such, based on the extent of use it, was inappropriate that sole access and egress from this development be from Indiana Parade. The respondent submitted that the access road should serve to provide access primarily to individual dwellings and that access and egress would be more appropriate on Singleton Beach Road where the conflict with the residential development would not occur.
The traffic experts agreed that the expected daily traffic flows from the development using the crossover on Indiana Parade would be in the order of 32 office trips and 54 residential trips per day (based on Road Transport Authority (NSW) trip generation rates).
Ms Round considered that the traffic generated through the crossover on Indiana Parade was in excess of the quantity expected on an Access Road and was not in keeping with the function of a road of this classification. She also argued that the use of the crossover by commercial traffic servicing the office and café uses was not in keeping with the residential nature of an "Access Road" as described in the Western Australian Planning Commission's Plolicy No DC 2.6 - Residential Road Planning. Mr Allerding agreed with Ms Round and contended that the traffic generated by the proposed development, due to the location of the proposed crossover in relation to the main entrance of the existing dwelling at No 18 Indiana Parade, would be likely to result in an adverse impact on the use and enjoyment of that property, both from the volume of vehicles generated and headlight glare at night.
Mr Rowland's perceived concerns related to the likelihood of excessive traffic noise, reduced traffic safety, increased traffic volumes and car lights shining in the bedroom and living room windows as cars used the crossover in the evenings.
It was commonly accepted that traffic flows on Indiana Parade, including that generated from the development, would be well within acceptable limits for a road of its category. It was Mr Riley's evidence that all three roads could provide access to the proposed development but that Indiana Parade is the most appropriate location for access to the proposed development in terms of traffic flows, conflict and road safety. Mr Riley indicated that the total daily flow of 273 vehicles per day (vpd) is significantly lower than the acceptable limit of 1000 vpd for a typical Access Road. He further contended that the office use will typically use Indiana Parade during normal working hours when the majority of local residents are at work, and that the residential use would generate somewhere between six and 10 vehicle movements using the crossover between 7 pm and 7 am, and that the majority of these would be returning to the property.
Based on the expected daily traffic flow the local road network can be expected to operate well within the acceptable maximum levels for the road classifications and their functions, as identified by the traffic experts. The Tribunal prefers the evidence of Mr Riley over Ms Round and finds that although the crossover will be servicing a mixed use development, the increase in traffic volume and risk in the street from traffic generated by the development is minimal and would not be contrary to the reasonable expectation of residents.
The Tribunal accepts the undisputed evidence of Mr Adam that the impact of headlights from any vehicle leaving the car park would be limited to the living room and perhaps the front door of the dwelling at No 18 Indiana Parade and any such impacts would be further reduced by the manoeuvring required in turning left onto Indiana Parade. Given that the expected number of vehicles movements using the crossover between 7 pm and 7 am is relatively low and that the headlight will not have any direct impact on any bedroom windows and may have limited impact on the living room window, the Tribunal is satisfied that the amenity of No 18 Indiana Parade will not be unreasonably affected.

Other amenity impacts

Mr Rowland was greatly concerned about the impact of the bin storage area on the amenity of this property. He perceived that the bin storage area would reduce the amenity by way of increase traffic problems and safety hazards associated with rubbish collection, increase noise and health issues. At the time of making his witness statement, Mr Rowland was unaware that modifications had been made to the plans, which entailed splitting the bin storage area into two areas; 12 bins located and collected from the Foreshore Drive end of the development and the remaining 16 bins located and collected from the Indiana Parade end of the development. He was also advised that the bin storage areas would be enclosed and as such, the bins would not be visible from Indiana Parade. Mr Rowland, during cross‑examination, indicated that the proposed modifications would be an improvement.
The modifications to the bin storage arrangements positively respond to the concerns raised by Mr Rowland. The Tribunal also notes that the collection of rubbish from Indiana Parade was not raised as a traffic safety issue by the traffic experts. Further, the applicants indicated support for a waste management strategy that would address issues such as noise, odour and general management arrangements, particularly relating to the café bins. The Tribunal is satisfied that the proposed modified bin storage areas, together with a waste management strategy ensure that No 18 Indiana Parade will not be unduly affected by the location and collection of rubbish bins from the proposed development.

Conclusion

The Tribunal finds that in having regard to the matters set out in cl 6.6 of TPS 2, the proposed development is consistent with the established planning framework and will not prejudice the orderly and proper planning for the locality and as such, planning approval should be granted, subject to conditions.

Conditions

As required by direction of the Tribunal, the respondent prepared "without prejudice" draft conditions to be imposed if the Tribunal considers that approval of the application, subject to conditions, is appropriate. The initial set of draft conditions, contained 33 conditions and five advice notes. After consideration of the applicants' response, the respondent prepared a revised set of draft conditions containing 30 conditions. Of these conditions, the applicants suggested modification to the wording of proposed condition 11 (which was accepted by the respondent) and raised objection to proposed conditions 10, 14 and 19, which read as follows:
"10.Prior to the issue of Building Licence and prior to the commencement of any work on the land, the owner obtaining the consent of the City to construct the 10 car parking bays shown on the plans as being within Foreshore Drive and Singleton Beach Road, and if consent is granted, the owner shall construct the bays to the specifications and satisfaction of the City.
14.Prior to the issue of a Building Licence and prior to the commencement of any work on the land, the owner obtaining the agreement of the City of accept a cash payment by the owner in lieu of the provision of 18 car parking bays in accordance with cl 4.15.6 of TPS 2.
19.All streetscape works being undertaken in the public streets abutting the development, including kerbside parking, pedestrian footpaths, soft landscaping, street trees, lighting and street furniture, to the satisfaction of the City, the cost of which may be offset against the cash-in-lieu for the provision of 18 car parking bays."

Proposed condition 10

Proposed condition 10, as submitted by the respondent, requires the owner to obtain the consent of the City to construct the 10 car parking bays shown in Foreshore Drive and Singleton Beach Road and that they be constructed to the specifications and satisfaction of the City. This condition is reliant upon approval being granted by the respondent.
The applicants' only concern relating to proposed condition 10 is that the condition is contingent on obtaining approval from the local government. The applicants asserted the Minister for Lands is able to provide consent.
The Tribunal does not consider that it is necessary for the condition to specify who the consent should be obtained from, but that the consent should be obtained. The condition should read as follows:
10.Prior to the issue of a Building Licence and prior to the commencement of any work on the land, consent be obtained to construct the 10 car parking bays shown on the plans as being within Foreshore Drive and Singleton Beach Road. Upon obtaining consent from the appropriate authority, the applicants shall construct the car parking bays to the specifications and satisfaction of the City of Rockingham.

Proposed condition 14

This condition requires the owners to obtain the agreement of the City of Rockingham to accept a cash payment in lieu of the provision of 18 car parking bays. This issue has been dealt with by the Tribunal at par [31] to [52] and as such, given the findings on this issue, a condition of this nature is not appropriate.

Proposed condition 19

This condition also makes references to "cash‑in‑lieu for the provision of 18 car parking bays". Similarly, given the findings of the Tribunal on this issue at par [31] to [52], the condition should be modified accordingly to delete any reference to a cash‑in‑lieu payment for car parking.

Proposed condition 15

This condition refers to a Waste Management Strategy (Strategy) being prepared and submitted to the satisfaction of the City's officers; however, it does not refer to the implementation of the Strategy. The condition should be modified accordingly.

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 23 May 2007 to refuse planning approval for a mixed use development comprising 10 apartments, three commercial units and a café on Lot 1 (No 114) Foreshore Drive, Singleton is set aside and a decision is substituted that planning approval is granted for a three storey mixed use development comprising a café and alfresco area, and three office tenancies at ground level with nine multiple dwellings above, as shown on plans A01 date 29 June 2007; A02 A03 and A04 dated 28 June 2007 prepared by Mark Anthony Design, subject to the following conditions:
(i)Development must be carried out in accordance with the terms of the application as approved herein and the amended plans dated 28 and 29 June 2007 (the plans).
(ii)Prior to any occupation of the development, vehicle parking, manoeuvring and circulation areas shall be suitably constructed, sealed, drained, kerbed and marked to the specifications and satisfaction of the City of Rockingham, and being maintained thereafter by the owner/occupier to the satisfaction of the City of Rockingham.
(iii)All stormwater being contained and disposed of on‑site.
(iv)Earthworks over the site being stabilised to prevent sand blowing and dust nuisance.
(v)Prior to the issue of a Building Licence and prior to the commencement of any work on the land, a detailed landscaping plan, including reticulation, shall be submitted to and approved by the City of Rockingham.
(vi)Prior to any occupation of the development, the works, landscaping and reticulation shown on the approved landscaping plan shall be completed to the satisfaction of the City of Rockingham, and being maintained thereafter by the owner/occupier to the satisfaction of the City of Rockingham.
(vii)All signs associated with the development, including signs painted on the building, to be to the satisfaction of the City of Rockingham and approved prior to the erection or painting.
(viii)The development being connected to reticulated sewerage system of the Water Corporation before commencement of any use.
(ix)The provision and maintenance of a total of twenty seven (27) marked on‑site car parking bays, measuring 5.5 metres x 2.5 metres with 6 metre wide accessways.
(x)Prior to the issue of a Building Licence and prior to the commencement of any work on the land, consent be obtained to construct the 10 car parking bays shown on the plans as being within Foreshore Drive and Singleton Beach Road. Upon obtaining consent from the appropriate authority, the applicants shall construct the car parking bays to the specifications and satisfaction of the City of Rockingham.
(xi)Prior to the occupation of the café tenancy, plans being submitted for the approval of the City of Rockingham showing the proposed design of the café to accommodate 40 persons and the café shall be constructed in accordance with those plans and the number of patrons permitted to use the café at any one time is limited to 40 patrons.
(xii)Car bays 20, 21, 23, and 26 as shown on the plans be constructed in accordance with Australian Standards AS 2890.1:2004.
(xiii)The provision and maintenance of at least one (1) on‑street car parking bay for use by disable persons, measuring 5.5 x 3.2 metres, being clearly marked by elevated signs and signs on the ground displaying the International Symbol for the Disabled. (Per the Standards Association of Australia AS 1428.1 - 2001 Design for Access and Mobility, AS 2890.1 - 1993 Parking Facilities Part 1: Off Street Parking).
(xiv)A Waste Management Strategy being prepared and submitted to the satisfaction of the Manager, Engineering Services and Manager, Health Services, prior to the issue of Building Licence. The Waste Management Strategy is to be implemented prior to the occupancy of the building and thereafter maintained to the City of Rockingham's satisfaction.
(xv)The boundary wall facing Indiana Parade being treated to ensure that the impression of mass and bulk is reduced. In this regard, details on articulation, colour, texture and landscaping measures shall be submitted and approved by the Director of Planning and Development Services, prior to the issue of a Building Licence.
(xvi)Balconies shall not be used for the hanging and drying of articles of clothing, bedding, towels or other subject items. Each apartment must include the installation of a clothes dryer.
(xvii)Information being provided demonstrating adequate ventilation of the kitchen of the café to the satisfaction of the Manager, Health Services.
(xviii)All streetscape works being undertaken in the public streets abutting the development, including kerbside parking, pedestrian footpaths, soft landscaping, street trees, lighting and street furniture, to the satisfaction of the City of Rockingham.
(xix)A reciprocal rights arrangement being provided to the satisfaction of the Manager, Statutory Planning for the bays to be shared between the apartments and commercial tenancies to the satisfaction of the City of Rockingham.
(xx)Each unit being provided with an individual storage room of not less than 3.4 square metres in area, constructed of the same materials as the units.
(xxi)Notwithstanding the detailed specifications required to be submitted for a Building Licence approval, a separate schedule of the colour and texture of the building materials shall be submitted and approved to the satisfaction of the Manager, Statutory Planning, prior to applying for a Building Licence.
(xxii)A pre‑development Acoustic Report must be prepared by a suitably qualified and experienced Acoustic Consultant (at the applicants' cost), to demonstrate that all mechanical services (that is, air‑conditioning and ventilation units) associated with the development and any other noise source designated by Council's Health Services will comply with the Environmental Protection (Noise) Regulations 1997 (WA). This condition must be satisfied prior to the issue of a Building Licence.
(xxiii)A post‑development Acoustic Report must be prepared by a suitably qualified and experienced Acoustic Consultant (at the applicants' cost), to demonstrate that all mechanical services associated with the development and any other noise source designated by Council's Health Services will comply with the Environmental Protection (Noise) Regulations 1997 (WA). This condition must be satisfied prior to the issue of a Certificate of Classification.
(xxiv)Prior to the issue of a Building Licence for a commercial tenancy fit out, a noise report is to be prepared by a suitably qualified and experienced Acoustic Consultant and be submitted to the satisfaction of the Manager of Health Services, demonstrating that all mechanical services associated with the intended use, and any other noise source designated by Council's Health Services, complies with the Environmental Protection (Noise) Regulations 1997 (WA). All attenuation measures identified within the report are to be implemented in full. This requirement may be withdrawn at the discretion of the Manager of Health Services, depending upon the potential noise impact.
(xxv)The method of providing deliveries to all commercial tenancies being to the satisfaction of the Manager, Engineering Services and the Manger, Statutory Planning prior to the issue of Building Licence.
(xxvi)All mechanical plant and equipment must be screened from view of adjoining properties, Safety Bay Road and Malibu Road. The location of plant and equipment must also minimise the impact of noise being received by future residents such that the noise from all plant and equipment complies with the Environmental Protection (Noise) Regulations 1997 (WA).
(xxvii)All sliding balcony screen doors to be uniform to all apartments.
(xxviii)The crossover is to be constructed to the City of Rockingham's specification.
(xxix)The provision of bicycle parking facilities is to be provided in convenient locations near the front building entrance to the commercial tenancies and apartments and installed prior to the development being occupied.
I certify that this and the preceding [80] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
Attachment 1