MAJOR HOLDINGS PTY LTD and TOWN OF VICTORIA PARK
[2015] WASAT 58
•26 MAY 2015
MAJOR HOLDINGS PTY LTD and TOWN OF VICTORIA PARK [2015] WASAT 58
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 58 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:226/2014 | 17 FEBRUARY 2015 | |
| Coram: | MS L EDDY (MEMBER) | 26/05/15 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MAJOR HOLDINGS PTY LTD TRANSOCEAN YACHT SALES PTY LTD TOWN OF VICTORIA PARK |
Catchwords: | Town planning Development application Nonconforming use Whether nonconforming use continued Proposed change of use to another nonconforming use Proposed outdoor vehicle sales premises Demolition of existing building Impact on amenity |
Legislation: | Planning and Development Act 2005 (WA), s 252(1) Town of Victoria Park Town Planning Scheme No 1, cl 15, cl 18, cl 19(3), cl 26(2), cl 36, cl 39 |
Case References: | City of Nedlands Aged Persons Home Trust Inc and City of Nedlands [2012] WASAT 75 |
Orders | On the application heard on 17 February 2015 before Member Lisa Eddy, it is on 26 May 2015 ordered that:,1. The application for review is dismissed.,2. The decision of the respondent of 10 June 2014 to refuse to grant the applicants' requested development approval is affirmed. |
Summary | The applicants sought review of a development proposal that contemplated removal of an existing building and subsequent improvements that would allow the site to be used for the purpose of a motor vehicle sales premises with open air display of vehicles. The site was located in a residential zone and within the Shepparton Precinct in Victoria Park. Use of the site for motor vehicle sales would, as such, normally be prohibited under the respondent's town planning scheme. However, the site had been authorised to be used for a nonconforming use prior to the gazettal of the current town planning scheme.,In order to determine this application, the Tribunal had to determine the nature of the nonconforming use that was authorised for the site and whether that use had been discontinued. The Tribunal found that the use that had been authorised was 'automotive showroom, spare parts sales and associated administration' and that this was something different to the use 'motor vehicle sales premises'. The Tribunal also determined that the authorised use was limited to the building located on the site and did not extend to the entire site. The evidence relied on by the applicants established that the building on the site had for some time (more than six months) been used for storage purposes, including the storage of some spare parts, with the rear of the building being used for vehicle servicing. The rear of the site outside of the building had been used for the purposes of display of vehicles for sale but this had never been an authorised use. The Tribunal found that the nonconforming use right that had existed had been discontinued.,As the parties had fully canvassed the merits of the development proposal and its impact on the amenity of the locality, the Tribunal also determined that issue. If it were assumed that the nonconforming use right had not been discontinued, the Tribunal found on the evidence that the development proposal involved a change to another nonconforming use, namely motor vehicle sales premises with open air display of vehicles. The Tribunal determined that the proposed change of use was not able to be approved under the town planning scheme as it did not meet the requirements of cl 18(3) of Town of Victoria Park Town Planning Scheme No 1. The proposed development was not less detrimental to the amenity of the locality than the original nonconforming use and was not closer to the intended purpose of the residential zone that the site was located within. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MAJOR HOLDINGS PTY LTD and TOWN OF VICTORIA PARK [2015] WASAT 58 MEMBER : MS L EDDY (MEMBER) HEARD : 17 FEBRUARY 2015 DELIVERED : 26 MAY 2015 FILE NO/S : DR 226 of 2014 BETWEEN : MAJOR HOLDINGS PTY LTD
- First Applicant
TRANSOCEAN YACHT SALES PTY LTD
Second Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords:
Town planning Development application Nonconforming use Whether nonconforming use continued Proposed change of use to another nonconforming use Proposed outdoor vehicle sales premises Demolition of existing building Impact on amenity
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Town of Victoria Park Town Planning Scheme No 1, cl 15, cl 18, cl 19(3), cl 26(2), cl 36, cl 39
Result:
Application dismissed
Summary of Tribunal's decision:
The applicants sought review of a development proposal that contemplated removal of an existing building and subsequent improvements that would allow the site to be used for the purpose of a motor vehicle sales premises with open air display of vehicles. The site was located in a residential zone and within the Shepparton Precinct in Victoria Park. Use of the site for motor vehicle sales would, as such, normally be prohibited under the respondent's town planning scheme. However, the site had been authorised to be used for a nonconforming use prior to the gazettal of the current town planning scheme.
In order to determine this application, the Tribunal had to determine the nature of the nonconforming use that was authorised for the site and whether that use had been discontinued. The Tribunal found that the use that had been authorised was 'automotive showroom, spare parts sales and associated administration' and that this was something different to the use 'motor vehicle sales premises'. The Tribunal also determined that the authorised use was limited to the building located on the site and did not extend to the entire site. The evidence relied on by the applicants established that the building on the site had for some time (more than six months) been used for storage purposes, including the storage of some spare parts, with the rear of the building being used for vehicle servicing. The rear of the site outside of the building had been used for the purposes of display of vehicles for sale but this had never been an authorised use. The Tribunal found that the nonconforming use right that had existed had been discontinued.
As the parties had fully canvassed the merits of the development proposal and its impact on the amenity of the locality, the Tribunal also determined that issue. If it were assumed that the nonconforming use right had not been discontinued, the Tribunal found on the evidence that the development proposal involved a change to another nonconforming use, namely motor vehicle sales premises with open air display of vehicles. The Tribunal determined that the proposed change of use was not able to be approved under the town planning scheme as it did not meet the requirements of cl 18(3) of Town of Victoria Park Town Planning Scheme No 1. The proposed development was not less detrimental to the amenity of the locality than the original nonconforming use and was not closer to the intended purpose of the residential zone that the site was located within.
Category: B
Representation:
Counsel:
First Applicant : Mr D Caddy (Acting as Agent)
Second Applicant : Mr D Caddy (Acting as Agent)
Respondent : Mr R Cruickshank (Acting as Agent)
Solicitors:
First Applicant : The Planning Group (TPG)
Second Applicant : The Planning Group (TPG)
Respondent : Town of Victoria Park
Case(s) referred to in decision(s):
City of Nedlands Aged Persons Home Trust Inc and City of Nedlands [2012] WASAT 75
Introduction
1 In March 2014 Major Holdings Pty Ltd and Transocean Yacht Sales Pty Ltd (applicants) requested planning approval from the Town of Victoria Park (respondent or Town) to demolish an existing RSL Hall located on Lot 302, one of three lots (Lots 300, 301 and 302) identified as No 526 - 528 Albany Highway, Victoria Park, and to alter the use of Lot 302 from an existing non-conforming use to another non-conforming use. On 10 June 2014 the respondent refused to grant the requested approvals. On 8 July 2014 the applicants lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) seeking review of the respondent's decision to refuse planning approval.
2 The application for review was heard on 17 February 2015. At the conclusion of that hearing, orders were made providing for the lodgement of some further documents and closing submissions, following which the decision of the Tribunal was reserved. These are the reasons for decision of the Tribunal of the review application.
Site and locality
3 Lots 300 to 302 are located near the corner of Albany Highway and Salford Street, Victoria Park, and are in single ownership. All three lots are used in connection with a motor vehicle sales business that faces Albany Highway. While the three lots are treated by their owner as, in effect, a single area, the application for planning approval, and consequently this review, relates only to one of the lots, Lot 302 (site). In order to understand the context of the application for planning approval, it is necessary to have some information about Lots 300 and 301 as well as the site.
4 Lots 300 and 301 are neighbouring properties and both face Albany Highway. Lot 301 also has a secondary street frontage to Salford Street. Lot 300 is occupied by a single storey showroom and a hardstand area, both used for the display and sale of motor vehicles. Lot 301 is entirely covered by a hardstand area, also used for the display and sale of motor vehicles. The site abuts the rear (or eastern) boundaries of Lots 300 and 301. It faces Salford Street and formerly had the street address of No 2 Salford Street, Victoria Park. The site is approximately 30 metres to the east of Albany Highway.
5 The existing single storey building on the site faces Salford Street. The building is located very close to the Salford Street boundary, so the site does not have any real front setback area. The building was formerly an RSL Hall, but its use for that purpose ceased in approximately the 1960s or the 1970s. The building is not identified on the respondent's Municipal Heritage Inventory. Behind the existing building is an area of hardstand.
6 The immediately neighbouring property to the east of the site, known as No 4 Salford Street, contains a single two storey building that is residential in appearance but has non-conforming use rights for use as 'Offices', and apparently is used as such. The remainder of the properties to the east of the site that face Salford Street (of which there are four) each contain two or more residential buildings, with the buildings being mostly two storeys. All of the residential buildings facing Salford Street appear to have similar, reasonably small, front setback areas. On the south-east boundary of Lot 302, the site abuts a property containing three residential buildings. The land on the opposite side of Salford Street to the site is used as a local park, known as Read Park.
The applicants' development proposal
7 The applicants' development proposal seeks to demolish the existing building on Lot 302 and to convert the site into an open air hardstand area to be used for the display and sale of motor vehicles. The applicants wish to use Lot 302 as an extension of the existing open air vehicle display sales areas on Lots 300 and 301. The proposal includes:
1) construction of seven car parking bays at the rear of Lot 302 for the use of staff and visitors;
2) installation of overhead lighting adjacent to the eastern and western property boundaries of Lot 302 (that is, on the lot boundaries which are perpendicular to Salford Street);
3) incorporation of landscaping strips as follows:
a) 3.7 metre wide strip adjacent to the Salford Street boundary;
b) 1.5 to 8 metre wide strip adjacent to the common boundary with the residential units to the south-east; and
c) 1 metre wide strip adjacent to the common boundary with the property to the east (No 4 Salford Street); and
4) hardstand covering over the remainder of Lot 302.
Planning framework
8 The site is zoned Residential under the Town of Victoria Park Town Planning Scheme No 1 (TPS 1 or Scheme). The properties to the east and south-east of the site are also zoned Residential under TPS 1. Lots 300 and 301 are zoned Commercial. The Scheme area is divided into precincts and for each precinct there is one or more precinct plans. The site is located within Precinct 10 - Shepperton Precinct. Lots 300 and 301 are located within Precinct 11 - Albany Highway Precinct.
9 The applicants' proposed use of the site comes within the meaning of 'Motor Vehicle Sales and Marine Sales Premises' as defined by the Scheme. That use is a prohibited use in a Residential zone. However, the site was granted planning approval for use as an automotive related purpose prior to the gazettal of TPS 1. This means that any development application in relation to the site has to be determined having regard to cl 18 of TPS 1 relating to non-conforming uses, as well to cl 36 of the Scheme which relates generally to the determination of planning applications. The demolition aspect of the proposal requires consideration of cl 39 of TPS 1.
10 Clause 18 of TPS 1 relevantly provides:
NON-CONFORMING USES
(1) Except as otherwise provided in this Scheme, no provision of the Scheme shall be deemed to prevent:
(a) the continued use of any land or building for the purpose for which it was being lawfully used at the Gazettal date of the Scheme;
…
(2) A person shall not alter or extend a non-conforming use or erect, alter or extend a building used in conjunction with a non-conforming use without first having applied for and obtained the planning approval of the Council under the Scheme and unless in conformity with any other provision and requirements contained in the Scheme. All applications for planning approval under this clause will be subject to notice under clause 35 and the Council shall have special regard to the impact of the proposed erection, alteration or extension of the building on the preservation of the amenity of the locality.
(3) Notwithstanding anything contained in the Zoning Table, the Council may grant its planning approval to the change of use of any land from a non-conforming use to another non-conforming use if the proposed use is, in the opinion of the Council, less detrimental to the amenity of the locality than the original non-conforming use and is, in the opinion of the Council, closer to the intended purpose of the Zone or Reserve.
(4) When a non-conforming use of any land or buildings has been discontinued for a period of six months or more such land or building shall not thereafter be used otherwise than in conformity with the provisions of the Scheme.
…
(6) When a building used for a non-conforming use is destroyed to 75 per cent or more of its value, the land on which the building is built shall not thereafter be used otherwise than in conformity with the Scheme, and the buildings shall not be repaired or rebuilt, altered or added to for the purpose of being used for a non-conforming use, or in a manner not permitted by the Scheme, except with the planning approval of the Council.
11 Clause 36 of TPS1 relevantly provides:
DETERMINATION OF APPLICATION - GENERAL PROVISIONS
…
(5) Without limiting the scope of the Council’s discretion to determine an application under subclause (3), the Council is to have regard to -
(a) The provisions of this Scheme and of any other written law applying within the Scheme area including the Metropolitan Region Scheme;
…
(c) any relevant precinct plan;
…
(g) the orderly and proper planning of the locality;
(h) the conservation of the amenities of the locality[.]
The Shepperton Precinct should remain a pleasant, low scale, medium density housing area. …
The retention of structurally sound houses and health, mature trees is an important aim for the precinct. Selective infill and the development of grouped dwellings is also encouraged. New development is to enhance the existing character of the area and have regard for the remaining quality housing stock.
To ensure its cohesion as a residential locality, the only new non-residential activities to be permitted in the area should be those which predominantly function to provide for day to day local needs.
The application of residential development standards should ensure a high level of environmental amenity and maintain a pleasant atmosphere characterised by low to medium scale architecture, oriented to the street and set in landscaped surrounds. Development should generally be one to two storeys in height and be in harmony with the scale, character and style of the original buildings. …
13 The Shepperton Precinct plan further provides, in relation to the Residential zone:
The area will be consolidated as a residential area comprising of a range of dwelling types to cater for a variety of househole [sic household] types and housing needs.
Local shops serving the day-to-day needs of residents, and recreational areas such as Kate Street Park and Read Park, and child care facilities are appropriate uses for the residential area.
14 Clause 39 of TPS1 provides:
DETERMINATION OF APPLICATION FOR DEMOLITION
(1) In considering an application for or involving demolition, the Council is to have regard to the matters listed in clause 36 (5) and -
(a) may defer consideration of the application until -
(i) it has granted planning approval for subsequent development of the relevant site;
(ii) it has issued a building licence for that development; and
(iii) it is satisfied that the subsequent development will commence;
(b) may approve the application, subject to conditions including -
(i) the retention, maintenance, reinstatement or repositioning of any part of the existing building or structure;
(ii) the screening of the site during redevelopment; and
(iii) where the development that has been approved has not been substantially commenced for a total period of more than six months, the landscaping of or other treatment of the site to the satisfaction of the Council; or
(c) may refuse the application.
15 The site has in the past been approved for a use that would otherwise be an 'X', or prohibited, use under the Scheme. Having regard to this fact and to the planning framework as identified above, the following issues arise for determination by the Tribunal.
1) Has the non-conforming use of the site been discontinued for a period of six months or more?
2) Does demolition of the existing building extinguish any non-conforming use rights that apply to the site?
3) What is the correct and preferable determination of the development application having regard to the relevant provisions of the Scheme?
Continuation of non-conforming use
What is the non-conforming use right?
16 The applicants contend that the approved non-conforming use of the site allowed for the whole of the site to be used as a motor vehicle premises. The respondent submits that the relevant approval was more limited than this, and was predominantly for the use of an automotive showroom.
17 By application dated 16 September 1992, the applicants applied for development approval to use the site as 'automotive showroom, spare parts and associated administration' (a copy of this application for development approval was provided to the Tribunal pursuant to the order to lodge further documents following the hearing and was accepted as part of the evidence before the Tribunal in this matter). It is noted on the application for development approval that the town planning scheme in existence at the time defined 'showroom' to mean 'a building or part of a building in which goods are displayed but in which the predominant use is not the sale of goods'. It is relevant to note that the town planning scheme also identified 'vehicle sales premises' as a different use to 'showroom'. 'Vehicle sales premises' was defined to mean 'any land or building used for the keeping or display for sale or hiring of new or second hand vehicles, other than bicycles, but does not include a workshop'. The development application expressly identified that the application included the sale of spare parts, and therefore the application was 'for a specific land use rather than for a "showroom proper" or any other general land use approval'.
18 The plan accompanying the development application shows a line dividing the existing building effectively into two large areas, with a bit more than half of the building being on one side of the dividing line (the front portion) and the remainder on the other side (the rear portion). The drawing also indicates a small reception area and two small office areas within the front portion of the building, and male and female toilets located in the rear portion of the building. The front portion of the building is labelled 'automotive showroom' and the rear portion is labelled 'parts and accessories'. At the rear of the building, provision for 10 car parking spaces is shown.
19 The Council minutes dated 17 May 1993 (Exhibit 3) state that 'during discussion at the Town Planning Committee meeting held on 29 April 1993, members considered that the application could be supported, provided the existing streetscape was retained'. The motion that was carried was:
That … the Council approves the application submitted … on behalf of Major Holdings Pty Ltd for the use of the existing vacant building for an automotive showroom spare parts sales and associated administration uses at Lot 302 (No. 2) Salford Street (also referred to as No. 528 Albany Highway), Victoria Park, as shown on plans dated 16 September 1992 and 30 November 1992, subject to the existing streetscape being retained.
20 Prior to the Council's decision, the then Minister for Planning (Minister) had consented to the Council approving use of the site for a purpose that was otherwise prohibited, being an 'X' use in a Residential zone according to the City Planning Scheme which then applied: see page 10 of Exhibit 2, decision of the Minister for Planning dated 13 April 1993. The Minister's letter described his consent as consent to approve use of 'the land for an automotive showroom and ancillary purposes'. With the Minister's consent, under cl 26(2) of the City Planning Scheme, the Council was able to approve the applicants' development application if satisfied by an absolute majority that:
a) the proposed development will be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality; and
b) the use of the land for that purpose will not have any adverse effect upon the occupiers or users of the development, or upon property in, or the inhabitants of, the locality or the likely future development of the locality.
21 Given this framework, the Tribunal is satisfied that the use that was rendered lawful on the site was the use approved by the Council at its meeting on 17 May 1993 (1993 approval). That approval was expressly limited to the building located on the site, and allowed use of the building as 'an automotive showroom, spare parts sales and associated administration uses … as shown on plans dated 16 September 1992 and 30 November 1992'. The reference to the plan dated 16 September 1992 is clearly a reference to the plan submitted with the development application, which is described above. No plan dated 30 November 1992 has been put before the Tribunal.
Current use of the building
22 A view of the site was conducted at the commencement of the hearing and the parties agree that it was observed that:
1) there were vehicles parked in the area outside the rear of the building;
2) the rear of the building was being used for vehicle repairs; and
3) the majority of the building contained partitioned walls and was configured for administration activities.
23 Mr Grant Young, a Director of both of the applicant companies, gave evidence in relation to the use of the site. Mr Young's evidence is that from the time of the approval to use the site for the purpose of 'automotive showroom, spare parts sales and associated administration', it has, to varying degrees over the years, been used as an automotive showroom, for administration associated with the sale of cars, spare parts sales and servicing, storage of vehicles and pre-delivery services (Exhibit 8, [2.3] - [2.4]). Mr Young attached to his statement a letter from Mr Mark Topley, Managing Director of Youngs Holden, dated 20 January 2015. It is stated in this letter that Youngs Holden has leased No 526 Albany Highway and No 2 Salford Street, Victoria Park from the applicants since 2007. It is further stated that 'I am pleased to confirm beyond any doubt that all the above properties have indeed been in full automotive use for the past 7 years by Youngs WA Pty Ltd'. This information is of no assistance to the Tribunal as it is not at all clear what is meant by 'full automotive use' and no clarification on this point was provided to the Tribunal.
24 Mr Young stated in oral evidence at the hearing that, at present, the building on the site was being used for storage, including some storage of parts, and for servicing of vehicles in the rear of the building. He stated that the building had not been used to display vehicles for a number of years. It was Mr Young's evidence that the majority of the building had been fitted out for use for administrative purposes some time ago and had been used for administrative uses of various types over the years.
25 Mr Young stated that it was his understanding that the site, and the building on it, had been approved generally for the display and sale of motor vehicles. He was aware that in order to maintain the site's non-conforming use rights, he had to ensure continuation of that use. His evidence was that he had done this by ensuring that 'automotive activities' continued on the site at all times.
26 The Tribunal accepts the evidence of Mr Young in relation to the use of the building on the site, and finds that the building, for at least the last six months, has been used for storage, including storage of some spare parts, and for the servicing of vehicles in the rear of the building. The Tribunal finds that the building, in recent times and certainly not within the last six months, has not been used for the purpose of an automotive showroom. There is no evidence before the Tribunal as to whether any of the spare parts stored within the building are sold, either through the process of servicing or otherwise. The Tribunal is satisfied that the rear of the site behind the building has consistently been used for car parking purposes and perhaps for the storage or display of vehicles for sale.
Is the current use a continuation of the approved non-conforming use?
27 The applicants submit that the current uses of the site all support the use of Lots 300 and 301 as a motor vehicles sales premises. It is argued that the 1993 application for development approval states that the automotive showroom, spare parts and administration uses 'will be complementary to the proposed car sales premises along the Albany Highway frontage'. As such, it is submitted that use of the rear of the building on the site for the servicing of vehicles and the remainder of the building for storage purposes, as well as use of the hardstand to the rear of the building on the site for the storage of vehicles for sale, has continued the non-conforming use of the site because they are all uses that support 'the umbrella' use of all three lots for the purpose of a motor vehicle sales premises.
28 The respondent submits that the 1993 approval should be taken as predominantly an approval for use as an automotive showroom. As there is insufficient evidence before the Tribunal for it to be satisfied that the site has continued to be used as an automotive showroom within the last six months, the respondent says that the non-conforming use rights in relation to the site have been extinguished. This submission cannot be accepted.
29 As indicated above, the Tribunal is satisfied that the building on the site has not been used as an automotive showroom for at least six months - probably for a number of years. However, the 1993 approval was not limited to, or conditional upon, an automotive showroom. The Tribunal finds that there were two main uses approved: automotive showroom and spare parts sales. Although the plan accompanying the development application indicates a division between those two main uses, there is only one reception area and both of the offices are within the automotive area, and therefore there is insufficient basis to find that those uses were ever intended to be, or were, approved as two separate, independent uses.
30 In relation to the use of 'spare parts sales', no direct evidence was put forward by the applicants to the effect that the site was currently being used for this purpose. The only potentially relevant evidence in relation to that use before the Tribunal is that the building on the site is currently being used for 'some' storage of spare parts and the rear of the building is being used to service vehicles. It might be that the spare parts stored in the building are for use in the course of vehicle servicing and therefore are stored and sold as part of the vehicle servicing that takes place. However, that is a matter of pure speculation, as no evidence that any of those spare parts were for sale was put before the Tribunal. In any event, even if those facts could be inferred, the storage of 'some' spare parts for use in the context of servicing vehicles is, without something more, insufficient to establish that the use of 'spare parts sales', as specified in the 1993 approval, had been continued to present day.
31 The 1993 approval also allowed 'associated administrative uses'. Taken in its context, this must mean administrative uses associated with the automotive showroom or spare parts sales uses. The reception area and offices shown on the plan accompanying the development application that was the subject of the 1993 approval would provide administrative support for either or both the automotive showroom and spare parts sales uses. It is accepted, as pointed out by the applicants, that within the development application, the proposed uses are stated to be 'complementary' to the proposed car sales premises. However, there is nothing in the terms of the 1993 approval or in the development application (including the attached plan) that provides any basis to conclude that the 'associated administrative uses' approved included administrative uses associated with Lots 300 and 301 rather than the site. The applicants' submission that, as long as the site is used for administrative purposes in connection with the motor vehicle sales use carried out on Lots 300 and 301, the site's non-conforming use right is maintained cannot be accepted. The respondent's submission that the non-conforming use right relates only to the site and, as such, whether or not it is used in conjunction with Lots 300 and 301, for the non-conforming rights to have continued, the site must have been used for the purposes of automotive showroom, spare parts sales and associated administration uses is plainly correct.
32 In conclusion, the building on the site is currently used, and has been used for at least the past six months, for the purposes of storage, including some storage of spare parts, and for vehicle servicing. To the extent that either of those uses is an 'administration' use, they are not associated with any of the primary uses that were rendered lawful by the 1993 approval - that is, automotive showroom and/or sale of spare parts - and therefore do not come within the 1993 approval. Therefore, the non-conforming use of the site, as approved by the 1993 approval, has been discontinued for a period of six months or more. Pursuant to cl 18(4) of TPS 1, the site may not now be used other than in conformity with the provisions of the Scheme.
Effect of demolition on non-conforming use rights
33 The parties agreed in this matter that demolition of the building on the site would not affect the non-conforming use rights of Lot 302. In their statements of issues, facts and contentions, the respondent and the applicants referred to the City of Nedlands Aged Persons Home Trust Inc and City of Nedlands [2012] WASAT 75 (Aged Persons Home Trust) and contended that the intentional demolition of the building under the appropriate planning approval did not extinguish the non-conforming use rights of the site, pursuant to cl 18(6) of TPS 1. As such, there was no argument in relation to the applicability of the relevant reasoning in the Aged Persons Home Trust case to this matter, or in relation to whether the Tribunal should further consider the proper meaning and effect of cl 18(6) of TPS 1. For that reason, and because it is not necessary to determine this issue in order to determine the application for review, the Tribunal has not determined this issue.
Determination of development application
34 Pursuant to cl 15 of TPS 1 and the Zoning Table that follows, use of the site, which is zoned Residential, for the purpose of 'motor vehicle and marine sales premises, open air sales and display' is not permitted by the Scheme. Therefore, as the Tribunal has found that the non-conforming use allowed by the 1993 approval has been discontinued, the applicants' development proposal cannot be approved. However, as the merits of the proposed development were fully argued in this matter, it is considered appropriate to determine this issue. In order to do this, it will be hypothesised, for the purposes of determining this issue, that the non-conforming use of the site for an automotive showroom, spare parts sales and associated administration has not been discontinued.
35 In its statement of issues, facts and contentions, the respondent asserted, and the applicants agreed, that cl 18(2) of TPS 1 was relevant to the determination of the development proposal. This seems to have been on the basis that the proposed demolition of the building on the site is an alteration of a building used in conjunction with a non-conforming use. Under cl 18(2) of TPS 1, the decision-maker is required to have special regard to the impact of the proposed alteration of the building on the preservation of the amenity of the locality. At the hearing the respondent submitted that, on further consideration, the applicable provision was, in fact, cl 18(3) of TPS 1 because the proposed demolition and improvements were for the purpose of using the site to display vehicles for sale as part of the motor vehicle sales premises use currently applying to Lots 300 and 301. It was made clear to the applicants that the respondent was raising application of cl 18(3) of TPS 1 and the applicants were offered the opportunity to submit that they were prejudiced by the late raising of this issue and request an adjournment. The applicants declined this opportunity.
36 The Tribunal finds that use for an automotive showroom, spare parts sales and associated administration is, and was under the Scheme in place at the time of the 1993 approval, a different use to the use for motor vehicle sales premises. As such, cl 18(3) of TPS 1 is the applicable provision. Therefore, planning approval may be granted if the Tribunal is satisfied that the proposed use is less detrimental to the amenity of the locality than the original non-conforming use and is closer to the intended purposes of the zone.
Respondent's position
37 Mr Robert Cruickshank, a planner employed by the respondent as its Executive Manager Built Life, provided his opinion evidence in relation to the impact of the proposed development on the amenity of the locality. In essence, Mr Cruickshank's evidence is as follows.
38 There is a strong residential character to Salford Street. The existing building, although not residential in character, has a limited impact on the otherwise residential character of the street. In addition, it provides a visual break between the commercial premises facing Albany Highway and the residential appearance of the rest of Salford Street. The form and scale of the building provides a complementary transition from the commercial premises facing Albany Highway to the residential appearance of the properties along Salford Street. The building also has the effect, to a significant degree, of obscuring from the street the nature and extent of any motor vehicle sales related use of the site.
39 The development proposal would result in a significant change in appearance to the site because of the removal of the building, the installation of hardstand over the majority of the site, and the introduction of lighting towers on the site. Demolition of the existing building on the site and replacement of that with hardstand, lighting and some landscaping would be detrimental to the amenity of the locality. The proposal to provide landscaping to the Salford Street frontage of the site would not sufficiently obscure the proposed large hardstand area that would cover the site (and its use to display vehicles) and the associated overhead lighting.
Applicants' position
40 The applicants relied on Ms Susannah Kendall, a Senior Heritage Planner employed at TPG Town Planning, Urban Design and Heritage (a private consultancy practice), to provide opinion evidence in relation to the planning merits of the proposed development. Ms Kendall's evidence, in summary, is as follows.
41 The building located on the site does not represent characteristics typical of a residential building, in that it has no setback to Salford Street with no landscaping between it and the street. The building is large and imposing, with bright red horizontal banding, which is not commensurate with the character of the adjacent residential buildings. It is heavily secured with security screens. The building is not in harmony with the existing residential character of Salford Street and its demolition will not have an unacceptable adverse impact on the amenity of the streetscape or the locality. The building does provide a sense of separation for the residential buildings along Salford Street from the commercial premises on Albany Highway, but the retention of the building is not the only solution to providing this sense of separation.
42 The applicants' development proposal provides the required sense of separation between different use types by providing landscape buffers. Those buffers act to separate the site from the neighbouring residential properties and to screen the proposed hardstand area, providing a complementary transition between the commercial and residential uses, and provides a unified landscape character as viewed from Salford Street in the front setback area along the street.
Determination
43 It was agreed between the expert witnesses, and it was apparent from the site view, that the building on the site is not residential in character. Rather, it has the appearance of a hall, albeit tired looking, in line with its historical use as an RSL Hall. On the site viewing, although the building had a reasonably imposing appearance, it did not appear to be entirely out of context with the scale and form of the residential buildings further along Salford Street. It was more the lack of any front setback that appeared out of context with other lots facing Salford Street. It was also apparent from the site view that the building completely obscures the hardstand behind the site and any vehicles on display there.
44 Ms Kendall accepted at the hearing that the proposed landscaping would not obscure the view of the proposed hardstand on the site and the vehicles which would be on display there. Ms Kendall's evidence was that the landscape would 'soften' that view. A main reason for Ms Kendall's opinion that the proposed development would not be detrimental to, but rather would improve, the amenity of the locality was that the proposed landscaping in the front setback area would provide a consistent appearance with the other lots along Salford Street and would thereby provide a visual consistency that would improve the amenity of the locality.
45 The Tribunal accepts Ms Kendall's point that landscaping in the front setback area of the site would improve the amenity of the locality. It also accepts her opinion, which was not disputed by Mr Cruickshank, that the existing building on the site is 'tired' in appearance and, in its current state, is not of any real aesthetic value. However, the Tribunal is not satisfied that the proposed hardstand area and the accompanying open air display of vehicles on the site would not be detrimental to the amenity of the locality, or that any 'softening' of the view of those things by landscaped areas would be sufficient to ameliorate the impact on amenity. The Tribunal is not satisfied that any proposed landscaping could provide the same extent of visual break between the commercial operations on Lots 300 and 301, and any non-residential use of the site, and the residential character of Salford Street. For these reasons, the Tribunal prefers the evidence of Mr Cruickshank on the issue of amenity.
46 The Tribunal is not satisfied that the development proposal as a whole, including the beneficial aspect of the provision of landscaping in the front setback area consistent with the neighbouring residential properties, would be less detrimental to the amenity of the locality than the existing building located on the site and the existing non-conforming use carried out therein.
47 The Tribunal is also not satisfied that the proposed change of use from 'automotive showroom, spare parts sales and associated administration' to use as a motor vehicle sales premises involving open air display of vehicles is closer to the intended use of the site within its Residential zone. The existing non-conforming use is a specific one that is restricted to within the building on the site. It never authorised the open air display and sale of vehicles, or even the display of vehicles for sale where they could be seen from Salford Street. The intended use of the site within its zoning can be understood from the permissible uses identified in the Zoning Table in TPS 1, and is expanded upon in the Shepparton Precinct Plan as stated above. To change the use of the site to one which allows a large area of hardstand, the open air display of vehicles and the provision of lighting towers which would be visible from Salford Street cannot be said to be closer to that intent.
48 Therefore, the proposed development does not meet the requirements that raise the discretion to approve the application in cl 18(3) of TPS 1. It is noted that the parties raised a number of other issues, including the possible relevance of amendment 60 to TPS1 and the applicants' future plans for the site. These matters are relevant to the determination of whether the proposed development is consistent with orderly and proper planning. That is one of the factors made relevant to the exercise of the discretion to approve a development application under cl 36 of the Scheme. Given the Tribunal's finding that the proposed development does not meet the requirements in cl 18(3) of the Scheme and therefore there is no discretion to approve the application, it is not necessary to consider these issues.
Conclusion
49 The correct and preferable decision in relation to this application is that the applicants' request for development approval should be refused. The non-conforming use right in relation to the site has been discontinued. Even if it had not, the Tribunal finds that demolition of the existing building on the site and the proposed subsequent improvements would adversely impact on the conservation of the amenity of the locality and would not be consistent with orderly and proper planning.
Orders
50 The Tribunal orders that:
1. The application for review is dismissed.
2. The decision of the respondent of 10 June 2014 to refuse to grant the applicants' requested development approval is affirmed.
- I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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