JONES and TOWN OF VINCENT
[2009] WASAT 180
•18 SEPTEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: JONES and TOWN OF VINCENT [2009] WASAT 180
MEMBER: MR P McNAB (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 18 SEPTEMBER 2009
FILE NO/S: DR 478 of 2008
BETWEEN: BARRY JONES
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Development application - Former supermarket site - Change of use - Recreational Facilities (Dance Studio) - No car parking available on site - Car parking shortfall - Planning principle previously endorsed by Tribunal on the need for onsite parking to be provided - Interpretation of Town's parking policy - Parking policy appeared to give developers a significant concession where previous shortfall identified - Tribunal inviting attention to reworking of the policy - Historically provided de facto public car parks near subject land - These areas zoned for car parking - Tribunal finding shortfall effectively met by these car parks - Cash in lieu contribution not required - Application for review allowed
Legislation:
Town of Vincent Town Planning Scheme No 1
Result:
Application for review allowed
Category: B
Representation:
Counsel:
Applicant: Mr P Webb (Acting as Agent)
Respondent: Mr S Bain (Acting as Agent)
Solicitors:
Applicant: Peter D Webb & Associates (Town Planners)
Respondent: SJB Town Planning & Urban Design (Town Planners)
Case(s) referred to in decision(s):
Govardhan and Town of Vincent [2008] WASAT 196
Govardhan and Town of Vincent [2008] WASAT 273
Randall and Town of Vincent [2005] WASAT 129
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This review concerned the provision of car parking for a site in Mount Hawthorn that had been originally built as a supermarket in the 1960s. No car parking was available on site. However, also in the mid‑1960s, the supermarket operator had established a 100 bay car park nearby to the site. These lots were zoned as car parks and operated today as de facto public car parks.
Over the years many activities had been proposed for, or had been carried out on, the site. Various calculations had been made of the parking shortfall by both the City of Perth and the Town of Vincent. The latest application was for a change of use to establish a dance studio.
Both planning law and the Town of Vincent's Parking Policy recognised the importance of the need for a developer to provide sufficient car parking on site.
Here, the change of use had been denied because the Parking Policy, as applied by the Town of Vincent, required a minimum number of bays on site, besides any payment of cash in lieu for parking.
However, the Parking Policy appeared to produce paradoxical results as it gave a concession for a previously acknowledged shortfall. A previous Tribunal decision had queried the policy, saying 'its effect is to significantly reduce the car parking obligations on a developer'. The Tribunal invited the Town to consider reworking this concession clause of the policy.
Here, the Town had recalculated the previous shortfall which made it significantly more difficult for the applicant to comply with the policy, correcting what it saw as an historical anomaly and preventing a 'windfall' to the developer.
The Tribunal decided that, in the circumstances, the concession to be afforded in recognition of any previously dealt with shortfall need not be attempted because of the uncontested evidence about the availability of the de facto public car parks. Reasonable parking associated with the use of the site could be met through the existence of these car parks.
The review was allowed and the decision under review was set aside.
Introduction: the subject land
This review concerns land at No 165 (Lot 37) Scarborough Beach Road, Mount Hawthorn (subject land). On 9 September 2008, the Town of Vincent (Town or respondent) rejected a development application lodged by the applicant for a change of use under the Town of Vincent Town Planning Scheme No 1 (TPS 1) from 'Warehouse' to 'Recreational Facilities (Dance Studio) and Associated Alterations'. One of the principal reasons advanced by the Town for the refusal was the alleged 'non-compliance with the Town's Policy No. 3.7.1 relating to Parking and Access [Parking Policy]'. However, it is clear from the record that but for this issue, the development application would have been conditionally approved.
The subject land has never had any parking available on
-site. As will be developed further below, the question of the provision of adequate parking in relation to the use and development of the subject land has been a matter of ongoing consideration in the subject land's planning history.It is common ground that this review solely concerns the question of the proper interpretation and application of the Parking Policy, in particular how any parking shortfall is to be calculated and the consequences that flow from the conclusions reached in relation to these matters.
A key issue in this context is the meaning to be given in the Parking Policy to a concession for 'the most recently approved on-site car parking shortfall'. In short, the applicant contended that such an approval was given in 2007. On the other hand, the respondent contended, in effect, that an error had been made: 'Such changes resulted in the subject application initially being considered to have a shortfall of 1.3 car bays [changing] to a much larger and [more] significant shortfall of 11.05 car bays'.
The planning framework
The Parking Policy is intended to regulate the exercise of a discretion in relation to relevant planning approvals under TPS 1. It was adopted by the respondent in August 2008, replacing an earlier policy, apparently to the same effect, dating from December 1998. It includes the following objective:
To ensure the adequate provision of parking for various services, facilities and residential developments and to efficiently manage parking supply and demand.
The Parking Policy includes the following policy statement:
On-site parking is to be provided at a rate that adequately meets the demand generated by a particular use or activity as determined by the Town of Vincent.
The Parking Policy further provides, in respect of non-residential uses, as follows:
Parking bays are to be provided at the rate specified in the … Land Use Parking Requirement Table [found in the Parking Policy], unless otherwise approved by the Council.
Notes:
i)Parking requirements are to be calculated by rounding to the nearest whole number.
…
iii)Where the number of bays proposed for a development is less than the number required, the Town of Vincent may approve this parking situation in terms of the provisions in this Policy relating to Reciprocal Parking, Combined Parking, Shortfall Parking and/or Cash-in-Lieu. …
Crucial to the application of these provisions is the cumulative effect of the land use characterisations for the entirety of the various approved uses of the subject land. On current and proposed land use, the officers reported to the Council as follows:
The proposal involves a proposed change of use from shop and warehouse to recreational facilities (dance studio) and associated alterations in the Anvil Lane lower level floor.
The applicant has provided the following details:
The dance studio will be offering classes in pole dancing, burlesque, latin dance, belly dancing and pilates.
The opening hours will be: Monday-Friday: 10 am-12 pm; 5 pm‑9 pm Saturday: 9 am to 9 pm.
Number of employees: 2 full-time, 5 casual/part-time. Number of clients at any given time: 40. Equipment: 2 small hi-fi systems (no amplifiers).
The existing two storey building contains two tenancies, one of which is vacant and the other is occupied by a women's clothing store. The vacant tenancy has been issued a Planning Approval and Building Licence for beauty salon and shop (hairdressing salon) and associated alterations. No car parking is able to be accommodated on-site.
The table then sets out 'parking adjustment factors' having regard to matters such as the availability of public transport, existing public car parks and related matters. The following note is appended to the table:
The calculated adjustment factor is applied to the car parking requirement provisions outlined in the Land Use Parking Requirement. The maximum adjustment factor, where all factors are justified to the maximum extent is 0.35 (0.80 x 0.85 x 0.80 x 0.80 x 0.90 x 0.90 = 0.352512). If the resultant shortfall of parking is less than or equal to 0.5 bays, no parking bays or cash-in lieu of parking is required for shortfall.
Where there is 'Shortfall Parking', as was calculated to be the case here, the Parking Policy provides for the application of these adjustment factors, as follows (at cl 10):
The car parking requirement may be partly or wholly reduced by the Town of Vincent through the application of [parking] adjustment factors (outlined in the … table), reflecting particular site and design factors. Such factors are to be justified by the Applicant …
Critically, in respect of this review, one further factor to be used in the calculations is a deduction for 'the most recently approved on site car parking shortfall (after taking into account relevant adjustment factors)'. It should be noted that the effect of this 'concession' is that paradoxically the higher the previously 'approved' (more accurately, perhaps, 'calculated' or 'acknowledged') on-site car parking shortfall, the greater the deduction, and the more likely that an applicant, as here, would be able to satisfy the Town's parking requirements.
Neither of the experts in this matter has suggested any explanation or rationale for this concession. In Govardhan and Town of Vincent [2008] WASAT 196 (Govardhan) (affirmed: Govardhan and Town of Vincent [2008] WASAT 273, per Barker J), Senior Sessional Member Graham observed, at [94] ‑ [95], that (emphasis added):
Under [the Parking Policy as then in force, which appears to be in the same terms as the present Parking Policy], the basic rationale is that on‑site parking is to be provided at a rate that adequately meets the demand generated by a particular activity. However, the Policy also introduces the concept of 'adjustment factors' which attempt to recognise the proximity of public transport as a means of lessening travel by car, and public parking areas as an alternative to street parking.
The overall effect of the 'adjustment factors' is to reduce the parking requirement, but just why further adjustment factors ('the most recently approved car parking shortfall') should be built into the final calculations is far from clear to the Tribunal. Quite clearly, its effect is to significantly reduce the car parking obligations on a developer.
In Govardhan, the Tribunal attempted an 'updat[ing]' of the 'most recently approved on-site parking shortfall', as follows, at [72] ‑ [73]:
At that time, [in 1992] the City of Perth approved a change of use from retail (furniture store) to amusement centre and required 34 car bays. Following a complaint from the applicant, the number of car bays was reduced to 20 and, when the adjustment factors are applied, this number further reduces to 14.45 …
However, under [the Parking Policy], an amusement centre today would require '3 spaces plus one space per 50 square metres of gross floor area'. This means that, for the 459 square metre building, 12 car bays would be required … three spaces plus nine spaces …
In the result, such 'updating' resulted in no substantive difference between the Town's original calculations and those of the 'updated' figure.
Although Govardhan was cited to the Tribunal in this review (see below), neither party urged the Tribunal to adopt an 'updating' approach. Both parties were content to rely on their respective views of what constituted the correct 'historical' or past position.
Here, the upshot of all of these matters under the Parking Policy was the presentation to the Council by its officers of a table in the following form:
| Car Parking | |
| Requirements as per Parking and Access Policy | Required |
| Total car parking required before adjustment factor (nearest whole number) -Retail Premises- Shop: 1 space per 15 square metres of gross floor area (existing 120 square metres)- 8.0 car bays -Hairdresser Salon- Shop: 1 space per 15 square metres of gross floor area (approved floor area - of 245.25 square metres)- 16.35 car bays -Beauty Salon- Shop: 1 space per 15 square metres of gross floor area (approved floor area of 161.6 square metres)- 10.77 car bays -Recreational facility (dance studio)- 1 space per 30 square metres of gross floor area (proposed 362.88 square metres)- 12.096 Total= 47.216 car bays | 47 car bays |
| Apply the parking adjustment factors. · 0.85 (within 400 metres of one or more existing public car parking places with excess of 75 car parking spaces) · 0.85 (within 400 metres or a bus stop) · 0.90 (the development is within a District Centre zone) | (0.65025) 30.56 car bays |
| Car parking provided on-site for commercial component | Nil |
| Minus the most recently approved parking shortfall after applying adjustment factors (=45 bays x 0.65025) | 29.26 19.51 car bays |
| Resultant Shortfall | 1.3 11.05 car bays |
The corrections in the final part of this table, indicated above, were explained by the officers in their subsequent report to Council, arising out of reconsideration ordered by the Tribunal, on 24 February 2009, as follows (emphasis added):
At the Ordinary Meeting of Council held on 6 November 2007, the previously approved shortfall was noted in the Agenda Report and Minutes as being 45 car bays, which was then multiplied by the relevant adjustment factors to determine the previously approved car parking shortfall (29.26). Contrary to this, the Agenda Report which was considered by the Council at its Ordinary Meeting held on 9 September 2008, was amended prior to the Council Meeting to state that the previously approved shortfall was 30 car bays; which was then multiplied by the relevant adjustment factors to determine the previously approved car parking shortfall (19.51). Such changes resulted in the subject application initially being considered to have a shortfall of 1.3 car bays [changing] to a much larger and [more] significant shortfall of 11.05 car bays.
The amendment to the previously approved car parking shortfall was instigated prior to the Council Meeting via a query submitted by a Council Member seeking clarification on the car parking assessment of the application considered by the Council at its Ordinary Meeting held on 6 November 2007. After reviewing the Town's archives, no evidence was located to substantiate the previous assessment, in which a previously approved car parking bay short fall [sic] of 45 car bays was noted. The archival records indicated that the last identified car parking shortfall was 30 car bays. Hence the previously approved car parking shortfall noted in the Car Parking Assessment Table of the subject application, was changed to reflect consistency with the Town's records.
The applicant contends that as per the Town's [Parking Policy], the overall car parking requirement is determined by the deduction of 'the most recently approved on site car parking shortfall' and in this instance, the most recently approved on-site car parking shortfall was determined to be 45 car bays. The applicant contends that the Town is bound by the previous stated car parking shortfall and that the applicant should not be prejudiced, regardless if this decision was flawed on the basis that evidence cannot be located by the Town in relation to a decision/approval made previously …
The Town's Officers have undertaken further archival searches to try and identify at what point in time the subject property had a car parking shortfall of 45 car parking bays. Unfortunately, no further evidence was located to substantiate this. Rather, evidence was located which documented that the previously approved 'historical' car parking shortfall was 30 car parking bays.
As will appear below, the same figure of 45 car bays was in fact also used in a planning approval given by the Town in May of 2008. The officers concluded, in February 2009:
In light of this, it is considered pertinent to correct this entrenched anomaly in relation to the previously approved car parking bay shortfall, as such an unsubstantiated, shortfall in car parking provides the property with an unrealistic advantage and effectively an unwarranted windfall to the owner. Such an advantage is counterproductive to the overall intent of the [Parking Policy], and will have an undue impact on the amenity of the immediate and surrounding area. Furthermore, the applicant has not provided any evidence in relation to the 45 car parking bay shortfall.
In light of the above, it [is] considered that the Town should calculate the overall car parking requirement based on the previously imposed 'historically' approved car parking shortfall of 30 car bays, with the relevant adjustment factors applied.
It is convenient at this point to draw attention to the following two further provisions of the Parking Policy, namely those dealing with 'cash‑in-lieu' (cl 11) and the circumstances where a proposal may be refused in any event because of inadequate on-site parking (cl 22). These clauses provide as follows (emphasis added):
11)Cash-in-lieu
Cash-in-lieu of parking is to be considered where non-residential developments have a shortfall of parking according to the requirements outlined in the Land Use Parking Requirement Table, as modified according to [cl 10 - reproduced above]. The Town may accept money for this shortfall to provide and/or upgrade parking bays in a nearby existing or proposed public parking facility, including on-street parking where appropriate.
This policy provision is not to be seen to be replacing the developer's responsibility to provide on-site parking, but rather as a mechanism to enable otherwise desirable developments, for which the full amount of parking cannot be provided on site, to proceed. The provision of an adequate supply of parking is the intent of this provision and, as such, the following matters apply:
i)cash-in-lieu provisions are only to be permitted in localities where the Town already provides off-street public car parking which has spare capacity, or the Town is proposing to provide or is able to provide a public car park (including enhanced or additional on-street car parking where appropriate) in the near future, within 400 metres of the subject development;
ii)cash-in-lieu contributions may comprise all or part of the shortfall in onsite parking proposed for a development;
iii)the contribution rate per bay is to be based on the estimated cost of the construction of the bay and any other related costs such as for access ways, manoeuvering areas, landscape areas, landscaping, lighting etc;
iv)in the case of any other development (including a change of use), the shortfall is to be calculated as the difference between the number of bays proposed and the number of bays required by the Land Use Parking Requirement Table, as modified according to [cl 10], and reduced by an amount equal to any existing shortfall similarly calculated;
v)the amount of cash-in-lieu to be paid is to be calculated at the rates determined annually by the Council …;
vi)the applicant may enter into an agreement with the Town to pay all or part of the amount of cash-in-lieu …;
vii)the contribution is to be held in a Trust Fund of the Town …;
viii)any parking facilities for which a contribution has been provided are to be constructed in the area where the development will generate the need for additional parking;
ix)the Town is to require the land on which parking facilities are provided under this Policy to be used for that purpose, but other compatible uses may be permitted by the Town provided they do not interfere with the parking function. At the Town's discretion, comparable parking facilities in the area may be substituted at a later time and the original bays disposed of or put to other uses;
x)the parking facilities provided as a result of cash-in-lieu contributions are to remain available to the public, be administered by the Town, and fees for parking may be imposed by the Town;
xi)in the event that the Town does not utilise the cash in lieu funds for additional parking within ten (10) years of receipt of the full amount, the Town shall refund the moneys to the applicant; and
xii)at the discretion of the Town, any applicant that has contributed to the cash in lieu Trust Fund may apply for parking passes for the free and unlimited use of car spaces within the car park in which the contribution has been used for. The passes are to be allocated to employees only, and the number issued will be dependent on the amount of moneys contributed. As a general guide, a shortfall of three (3) car bays equals the provision of one (1) pass.
…
22)Minimum Parking Requirements
The Council may, in the pursuit of orderly and proper planning and the preservation of the amenities of the locality, refuse a proposed development where inadequate on-site parking has been provided. This provision is to ensure consistency when determining whether to approve an application with a parking shortfall. The additional shortfall will be required to be met using the cash in lieu contribution provision.
In determining whether the proposed development should be refused on car parking grounds, the following percentages should be used as a guide:
i)If the total parking requirement for a development (after adjustment factors have been taken into account) is 10 bays or less, cash in lieu may be provided for any shortfall.
ii)If the total requirement (after adjustment factors have been taken into account) is between 11 - 40 bays, a minimum of 15 per cent of the required bays is to be provided.
iii)If the total requirement (after adjustment factors have been taken into account) is between 41 - 70 bays, a minimum of 25 per cent of the required bays is to be provided.
iv)If the total requirement (after adjustment factors have been taken into account) is above 71 bays, a minimum of 40 per cent of the required bays is to be provided.
It should be noted that a proposed development may still be refused on the basis of non-compliance with car parking requirements, regardless of whether these provisions have been met.
The consequential recommendation from the officers was in the following terms:
In determining whether a proposed development should be refused on car parking grounds, the [Parking Policy] states that as a guide, a minimum of 15 per cent of the required car bays should be provided on-site where the total requirement is between 11 and 40 car bays (after adjustment factors), and the balance should be provided as a cash-in-lieu contribution.
The subject application has a total car parking requirement of 30.56 car bays after adjustment factors. If the above clause of the [Parking Policy] is applied to the subject application, a total of 4.58 car bays are required to be provided on-site and the balance should be provided as a cash-in-lieu contribution. This requirement has not been satisfied as there are no car bays provided on-site.
It is to be noted that it is not appropriate to justify an approval of the subject application on the basis that the Town has approved other uses on the site in the past with a car parking shortfall. The incremental increase of uses on the subject site without sufficient car parking will have a direct undue impact on the preservation of the amenities of the locality through car parking spillover. There is concern also that the lack of any on-site car parking will unduly impact on the amenity of the surrounding residential area, as it is very likely that at least some cars generated by the proposal will be parked in the surrounding residential streets.
In the pursuit of orderly and proper planning, it is important that the Town manage future land uses in a manner that ensures the amenity of the nearby commercial/residential areas are protected and not unduly impacted upon by car parking spillover. Further, visitors to the area should not be [inconvenienced] by reduced levels of available parking. In this instance, it is considered that the shortfall in parking will impact on the amenity of the area.
Historical approvals and car parking requirements
The parties' experts jointly ascertained the historical figures on car parking requirements, as calculated over the years (a 'point in time exercise recalculating the alleged parking shortfall at the time of each Development Application before the City of Perth or the Town of Vincent').
Mr Webb, for the applicant, and Mr Bain, for the respondent, provided the following point-in-time summary, based upon the 'City of Perth City Planning Scheme 1987-1998 and [the] Town of Vincent Parking and Access Policy 4 December 1998' (references to annexures omitted):
| Date | Application | Car Parking Requirements | No. of Bays |
| 19 Oct 1987 | The City of Perth Council at its Ordinary Meeting approved an application to convert an existing shop to a shop and a warehouse (This approval was not proceeded with) | 70 [square metres] Shop - 1 for every 15 square metres of gross floor area (GFA) 539 [square metres] Warehouse - 3 for up to the first 200 [square metres] of GFA and thereafter 1 for every additional 100 [square metres] of GFA or part thereof Residual area of building - 371 [square metres] (Still approved retail?) One for every 15 [square metres] Estimated Total Parking Requirement (i.e. Shortfall) for this approval | 4.7 7.0 24.7 36.4 |
| Date | Application | Car Parking Requirements | No. of Bays |
| 15 Jun 1992 | The City of Perth Council at its Ordinary Meeting approved an application for 'part of the existing shop' to be converted into a caretaker[']s unit (This approval was not proceeded with) | Caretaker's Residence - as prescribed by the Residential Planning Codes (although Council Minutes advise 'one bay provided for use by the Caretaker') (Say) 900 [square metres] Shop - 1 for every 15 [square metres] of gross floor area Estimated Total Parking Requirement (i.e. Shortfall) for this approval | 2.0 1.0 60.0 61.0 |
| 28 Jun 1994 | The City of Perth Council at its Ordinary Meeting refused an application for the proposed establishment of a place of public worship within an existing building. (At the time of this Application, minutes record building being used 'as an Asian supermarket and a clothes shop' - no mention of any use as a 'warehouse'). | 980 [square metres] Shop - 1 for every 15 [square metres] of gross floor area Estimated Total Parking Requirement (i.e. Shortfall) at the time of this application | 65.3 65.3 |
| 13 Sept 1994 | The Respondent at its Ordinary Meeting refused an application for change of use from shops (retail use - 980 [square metres] to an eating house and storage space. | 980 [square metres] Shop - 1 for every 15 [square metres] of gross floor area Estimated Total Parking Requirement (i.e. Shortfall) for this approval | 65.3 65.3 |
| 20 March 1995 | The Applicant contends that Peter Treen Electrical Pty Ltd (Treen) purchased the property and operated the retail sale of electrical goods from both levels of the building until August 2005. | Respondent has been unable to find any record of the Approval to use the site for this business or any required car parking which might have attached to that. 980 [square metres] Shop - 1 for every 15 [square metres] of gross floor area. Estimated Total Parking Requirement (i.e. Shortfall) for this approval. | 65.3 65.3 |
| Date | Application | Car Parking Requirements | No. of Bays |
| 22 August 2005 | The Respondent issued a Section 40 Certificate (Liquor Licensing Act 1988) certifying that 'Mount Hawthorn Liquor' (to be developed onsite) 'will comply with all relevant planning laws…' (Namely Respondent's TPS 1) and further, that this is '…in accordance with approval No. 10/6312 approved on 19 October 1987 by the City of Perth for alterations and change of use from Shop to a Shop and Warehouse'. | 980 [square metres] Shop - 1 for every 15 [square metres] of gross floor area Estimated Total Parking Requirement (i.e. Shortfall) for this approval | 65.3 65.3 |
| 6 Nov 2007 | The Respondent's minutes of its Ordinary Meeting state that it approved an application for change of use 'from shops and warehouse to eating house and storage space' whereas the application was actually to change the use from 'shop' to 'eating house'. This Approval was not proceeded with. | 160 [square metres] Eating House - 1 space per 4.5 square metres of public floor area 120 [square metres] Shop - 1 space per 15 square metres of gross floor area 460 [square metres] Warehouse - 3 for up to the first 200 square metres of gross floor area and thereafter 1 for every additional 100 square metres of gross floor area or part thereof Total Parking Requirement (i.e. Shortfall) for this approval | 35.6 8.0 6.0 49.6 |
| Date | Application | Car Parking Requirements | No. of Bays |
| 23 May 2008 | The Respondent advised the Applicant that it had, under Delegated Authority, approved an application for change of use 'from shops and warehouse to consulting rooms (non‑medical) (beauty salon) and shop (hairdressing salon) and associated alterations'. The Applicant advises that whereas the application was actually to change the use from 'shop' to 'to consulting rooms' (non-medical) (beauty salon) and shop (hairdressing salon) and associated alterations'. | 120 [square metres] Shop - 1 space per 15 square metres of gross floor area 5 Consulting rooms (non‑medical) (beauty salon) - 3 spaces per consulting room 245.25 [square metres] Shop (hairdressing salon) - 1 space per 15 square metres of gross floor area 460 [square metres] of warehouse - (as above) Total Parking Requirement (i.e. Shortfall) for this approval | 8.0 15 16.35 6.0 45.3 |
Unfortunately, this exercise does not show in detail the precise criteria by which each calculation was reached (and under what instrument or formula in force at the relevant time), and whether it accords with any officers' reports at the relevant time, and, if not, why the agreed figure ought to be preferred.
The exercise does, however, indicate at base a substantial parking shortfall for the site. Importantly, the experts also agreed that:
Prior to the obtainable planning decisions of the relevant local government authorities … the building constructed upon the subject property was approved in 1964 as a purpose built (two storey) Coles New World supermarket having a gross floor area of approximately 980 [square metres]. At one bay per 15 [square metres] of gross floor area for [a] 'Shop', this suggests a car parking requirement pre October 1987 of 65.3 car bays. As there are no car bays provided on-site, the parking shortfall for the subject property was also 65.3 car bays.
The experts then went on to jointly calculate the parking shortfall (also pointing out, where appropriate, their differences), as follows:
| Car Parking | |
| Requirements as per Parking and Access Policy | Required |
| Total car parking required before adjustment factor (nearest whole number) · Retail Premises - Shop: 1 space per 15 square metres of gross floor area (existing 120 square metres) · Hairdresser Salon - Shop: 1 space per 15 square metres of gross floor area (approved floor area - of 245.25 square metres) · Beauty Salon - Shop: 1 space per 15 square metres of gross floor area (approved floor area of 161.6 square metres) · Recreational facility (dance studio) - 1 space per 30 square metres of gross floor area (proposed 362.88 square metres) Total | 47 car bays 8.0 car bays 16.35 car bays 10.77 car bays 12.096 car bays 47.216 car bays |
| Apply the parking adjustment factors: · 0.85 (within 400 metres of one or more existing public car parking places with excess of 75 car parking spaces) · 0.85 (within 400 metres of a bus stop) · 0.90 (the development is within a District Centre zone | (0.65025) 30.56 car bays |
| Car parking provided on-site | Nil |
| Minus the most recently approved on site car parking shortfall after applying adjustment factors Respondent argues 30 bays x 0.65025 Applicant contends that the Respondent approved an on site car parking shortfall for the subject property of 45 bays (per both 6 November, 2007 and 23 May, 2008 approvals) x 0.65025 but, should this shortfall be deemed to have been determined incorrectly and, therefore, invalid, 'the most recently approved on site car parking shortfall' for this property for a development application which was proceeded with is the 65.3 bays which was approved in 1964 (for the G.J. Coles & Co. Ltd. application) x 0.65025 | 19.51 car bays 29.26 car bays 42.46 car bays |
| Resultant Shortfall Respondent says Applicant says either an on site car parking shortfall of or, an on site car parking surplus of | 11.05 car bays 1.3 car bays (11.9 car bays) |
I should say, immediately, that I am not attracted to the 1964 supermarket approval figure suggested in the alternative by Mr Webb. I would doubt very much that such a figure could ever amount to 'the most recently approved on site car parking shortfall' contemplated under the Parking Policy. Rather, if the figure used by the Town were found to be incorrect, then perhaps it may be necessary to hypothecate what such a figure might reasonably be, based upon the best (and most recent) material available. I accept, however, that the 1964 approval and the shortfall at that time might be relevant to this exercise.
Respondent's contentions
For the respondent, Mr Bain reiterates the points argued in the officers' comments reproduced above. In addition, he submits that (emphasis added):
The [applicant] has not provided any evidence in support of the 45 car parking bay shortfall which was determined. It is noted that the [development] applications dated October 19, 1987 and June 15, 1992 were never proceeded with and the applications of June 28, 1994 and September 13, 1994 were refused. These applications can therefore not be used to determine car parking.
There is no record of an application on March 20, 1995 and, as such, this cannot be considered. The Tribunal in similar circumstances relied on actual evidence of an approval [Mr Bain cites Chelmsford House Pty Ltd and Town of Vincent [2006] WASAT 147] or even [a] record of an application. In this case, there is no record of an approval or even an application having been made and an unauthorised use cannot be used to justify a reduction in parking.
…
There is concern also that the lack of any on-site car parking will unduly impact on the amenity of the surrounding residential area, as it is very likely that at least some cars generated by the proposal will be parked in the surrounding residential streets. There are two car parks opposite the subject site along Anvil Lane, however, these car parks are privately owned and not open to the general public.
In the pursuit of orderly and proper planning, it is important that the Town manage future land uses in a manner that ensures the amenity of the nearby commercial/residential areas are protected and not unduly impacted upon by car parking spill over. Further, visitors to the area should not be inconvenienced by reduced levels of available parking. In this instance, it is considered that the shortfall in parking will impact on the amenity of the area.
The respondent has not supplied any material concerning the usage, signage or zoning history of the car parks, or what the Town's forward plans (if any) for them might be.
Applicant's contentions in reply
In response, Mr Webb submits that:
[The Parking Policy] would appear to require [the Town] to apply the on site car parking shortfall it has most recently approved (and has done so twice) in determining the car parking requirements for the subject application …
The [necessary] 'evidence' [produced by the respondent in support of its historical case] is contained in the minutes of the ordinary meeting of the City of Perth's Council held on 15 June, 1992 … The officer's comments in these minutes state that 'under the [City of Perth] Scheme the existing shop and storage use requires the provision of some 30 car bays': however, the [applicant] contends [that] there is no record of a previous development approval having been granted for the subject property which had a car parking requirement of 30 bays or that at the date of that minute 'the most recently approved on site car parking shortfall' was 30 car bays.
The [applicant] contends that all this minute may evidence is that some areas of the building were then being used as 'shop' and some for 'storage' (whilst the whole of the building had been approved as 'shop' some areas may not have been operating as a 'shop' at the time) and that 'some 30 bays' was the reporting officer's rough estimation of the car parking required for the manner in which the building was then being used rather than the parking requirement for its then current approved use.
There is nothing contained in this minute to evidence that the City had previously approved any part of the building for use as 'storage'.
The [respondent's case is that the] most recently approved on site car parking shortfall of 45 car bays is 'unsubstantiated' and 'provides the property with an unrealistic advantage' and is 'effectively an unwarranted windfall to the owner' - an 'entrenched anomaly' which should be corrected.
The [applicant] contends, however, that the [a]pplicant is simply requesting that the [r]espondent comply with the terms of its [Parking Policy] and that there is no such 'unwarranted windfall'. The [applicant] further contends that, at the time of the applications to the [r]espondent dated 6 November, 2007 and 23 May, 2008 to change the use of part of the subject property, the true historical on site car parking shortfall was 65.3 bays which was the car parking required (per the [Parking Policy] and TPS 1) for its most recently recorded use (Ie. as a retail shop by electrical retailer Peter Treen Electrical Pty. Ltd.).
The [respondent] further suggests … that the alleged 'unrealistic advantage ... is counterproductive to the overall intent of the [Parking Policy], and will have an undue impact on the amenity of the immediate and surrounding area because it increases the shortfall of car parking' and 'that the [a]pplicant does not address the demand for car parking and how the shortfall will be addressed'.
In response, the [applicant] contends that the … proposal is entirely consistent with the [Parking Policy] and notes that the [respondent] offers no evidence in support of [its] contention that the approval of the [a]pplicant's proposal 'will have an undue impact on the amenity of the immediate and surrounding area'.
Mr Webb then turns to the important issue of the availability of off‑street parking, submitting that:
… It is agreed between the [parties] that in 1964 the City of Perth approved the construction on the subject property of a building which has a gross floor area of approximately 980 [square metres]. At the ratio of one bay per 15 [square metres] of gross floor area for 'Shop', the car parking requirement for this building would have been 65.3 car bays and, as there were (as is still the case) no car bays provided on-site, the parking shortfall for the subject property was also 65.3 car bays.
In 1966 G.J. Coles & Co. Ltd. purchased two houses in Coogee Street, Mount Hawthorn (Lots 98 and 99) 'for the express purpose of providing additional parking facilities for the general shopping public in Mount Hawthorn' … In that same year these two lots were re-zoned from 'Zone 1 - Single Tenement Dwelling' to 'Zone 13 - Parking (Short and Intermediate Term)'. The City of Perth then paved and drained these two lots on condition that they were leased to the City at a peppercorn annual rental. At some later date the two adjoining Lots 96 and 97 (now Lot 5) Coogee Street were also re-zoned from 'Zone 1 - Single Tenement Dwelling' to 'Zone 13 - Parking (Short and Intermediate Term)'. These four lots have a combined area of 1,880 [square metres] and can park approximately 100 cars. In 1981 the City twice refused applications to re‑zone Lots 98 and 99 Coogee Street to a use other than 'car park' and, although no longer leased by the local government authority, they remain today as a de-facto public car park, almost immediately adjacent to the subject property. As can be seen in [certain photographs tendered by the applicant], the car park was not being heavily used on the day that these photographs were taken and observations by [Mr Webb suggest] that the usage shown … is typical.
The [applicant] contends that since 1966[,] Lots 98 and 99 Coogee Street have historically provided car parking facilities to the customers of the various businesses which have been conducted from the subject property during the past 43 years - and they still continue to do so. The [applicant] further contends that the car parking requirement for the subject application will be comfortably accommodated by the 100+ car parking bays which are constructed upon Lots 98 and 99 Coogee Street (and the adjoining Lot 5 Coogee Street) and that, accordingly, the subject application will not have 'an undue impact on the amenity of the immediate and surrounding area' and that, given that these car parking bays are very sparsely used, it is highly unlikely that any additional cars generated by the subject application proposal will be parked in the surrounding residential streets.
The [respondent contends] that the car parks constructed upon Lots 5, 98 and 99 Coogee Street 'are privately owned and not open to the general public'. Whilst it is not in contention that these three lots are privately owned (and have always been so), the [applicant] contends that it is untrue to state that they are not open to the general public. As can been seen … Lots 98 and 99 were purchased by G.J. Coles & Co. Ltd. 'for the express purpose of providing additional parking facilities for the general shopping public in Mount Hawthorn' and [they were] then re-zoned as a car park. There are no fences constructed along any of the boundaries of these three lots and the general public continues to use them (albeit sparingly) at will.
Mr Webb next turns to address Randall and Town of Vincent [2005] WASAT 129 (Randall) which was cited with approval in Govardhan and Town of Vincent [2008] WASAT 273. In Randall, the Tribunal said, at [121]:
Although, in the exercise of planning discretion, some limited use by private development of existing public car parking spaces might be acceptable, it is fundamentally inconsistent with orderly and proper planning for a private development, which is incapable of meeting its car parking impacts on-site, to monopolise presently available public car park spaces. Such an approach would undermine the potential for orderly development of other sites in the commercial strip which might, like the site, be incapable of providing adequate on-site car parking.
The applicant's answer to this important statement of principle is as follows:
… Lots 98 and 99 Coogee Street were purchased by the then owner of the subject property specifically to provide additional car parking adjacent to the subject property (which whilst not reserved for the exclusive use of its customers was highly likely to be mainly used by them) and that the car parking bays constructed upon these lots remain sparely used, the circumstances of this matter differ significantly from those in either of the afore-mentioned matters which came before the Tribunal [that is, Govardhan and Randall].
Importantly, Mr Bain did not seek to lead evidence in rebuttal concerning either the state of usage of the car park or the historical circumstances of its creation. Thus, Mr Webb's submissions on these matters ought to be accepted and, on their face, the circumstances in Govardhan and Randall are significantly different. This is a matter that the Tribunal will return to below.
Given the approach of the Tribunal it is unnecessary to set out Mr Webb's ancillary arguments, except to note his comment on the use of the subject land from 1995 to 2005 by an electrical and air-conditioning retailer:
Peter Treen Electrical Pty. Ltd. intended to use (and, subsequently, did so for the ten years period from 1995 to 2005) the entire building on the subject property as a retail shop, (Ie., the previously approved use) [and] it was unnecessary for Peter Treen Electrical Pty. Ltd. to apply for planning approval to change its use.
Discussion of the issues
It is clear that in Govardhan the Tribunal was troubled by the application of a further adjustment factor which might lead to a significant and, by implication, unjustified reduction of car parking obligations upon a developer in the Town. The avoidance of such a result appears to be a factor in the respondent's case here (see the reference above to an 'unwarranted windfall to the owner').
It is more than likely that the further adjustment factor was included in the Parking Policy to provide for a concession where a previous parking shortfall had been acknowledged and dealt with in some fashion. Speaking generally, it would be, of course, unfair for a subsequent developer not to have any previous accommodation for parking taken into account in the consideration of their proposal.
How this acknowledgement might be achieved is a matter of policy development for the Town. In this regard, the Tribunal invites the Town's attention to the reworking of this provision so as to produce a more workable and, perhaps, more equitable formula.
Such a reworking should also take into account cases such as this where there is doubt about the precise accommodation or calculation of previous parking shortfalls because of either uncertainties in the record or for some other reason (such as changing parking standards combined with a long, multiple land use history).
Here, fortuitously, the Tribunal need not attempt to calculate what is a proper concession to give effect to this aim of the Parking Policy. This is because the uncontroverted evidence of Mr Webb (as to both his opinion and his observations), which the Tribunal has accepted, shows that substantial de facto public car parking exists nearby; that these car parks have, in varying degrees, a relevant historical 'connection' to the subject land for the purpose of providing car parking to the subject land; and that they would adequately cater for any upper figure of parking shortfall.
It follows that no question of any cash-in-lieu contribution arises in this case.
Recently, the Supreme Court of this State has once again reminded decision-makers in the planning area that they will fall into error if 'in substance [the decision-maker has] regarded itself as bound by [a policy] and inflexibly applied [that policy]': Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 (per Simmonds J). This flexibility required by the common law, combined with my view that the Parking Policy's aim that '[o]n-site parking is to be provided at a rate that adequately meets the demand generated by a particular use or activity as determined by the Town of Vincent [or, on review, this Tribunal]' would be met in the particular circumstances outlined above, leads to a decision setting aside the decision under review.
Orders
For the reasons given above, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision under review is set aside and the matter is sent back to the decision-maker for reconsideration in accordance with the following direction: the respondent Town is to issue a consent to the development upon such conditions (if any) as are reasonable and not inconsistent with the reasons for decision of the Tribunal.
3.Liberty to apply is reserved to the parties for 21 days.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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