MAJOR HOLDINGS PTY LTD and TOWN OF VINCENT

[2007] WASAT 40

MAJOR HOLDINGS PTY LTD and TOWN OF VINCENT [2007] WASAT 40

Last Update :19/02/2007

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 40
Published:
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:338/2006	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR L GRAHAM (SENIOR SESSIONAL MEMBER)	Delivered:	13/02/2007
No Pages:	19	Judgment Part:	1 of 1
Result:	The decision under review is set aside
Category:	B

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MAJOR HOLDINGS PTY LTD and TOWN OF VINCENT [2007] WASAT 40 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 14 FEBRUARY 2007 FILE NO/S : DR 338 of 2006 BETWEEN : MAJOR HOLDINGS PTY LTD

Applicant

AND

TOWN OF VINCENT
Respondent

Catchwords:

Fee paying car park - Orderly and proper planning - Amenity - Visual amenity

Legislation:

Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 249(1)
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(i)
Town of Vincent Beaufort Precinct Policy (Policy 3.1.13)
Town of Vincent Planning and Building Policy Manual ­ Parking and Access (Policy 3.7.1)
Town of Vincent Town Planning Scheme No 1, cl 38(5), Sch 1

(Page 2)

Result:

The decision under review is set aside

Category: B

Representation:

Counsel:

Applicant : Ms C Murray (Acting as Agent)
Respondent : Mr SJ Bain (Acting as Agent)

Solicitors:

Applicant : The Planning Group WA Pty Ltd (Town Planners)
Respondent : SJB Planning and Urban Design (Town Planners)

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

Cipriano v City of Perth (Unreported, Appeal No 20 of 1979)

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The application for review was lodged against a decision of the Town of Vincent to refuse a planning application for a change of use of the western portion of the subject land to "Warehouse and Fee Paying Car Park".

2 In undertaking this review the Tribunal has had regard to the submissions of the parties along with the background to the matter, the existing statutory and policy provisions, the need or otherwise for a fee paying car park and the matter of amenity; particularly visual amenity.

3 In the view of the Tribunal the proposed development is consistent with the Beaufort Precinct Policy and, in that sense, accords with the orderly and proper planning of the locality. Also, the proposal would help to improve the visual amenity of the site over and above its current dilapidated state and, in so doing, improve to a degree the amenity of the immediate locality.

4 The decision under review is set aside and the matter determined in favour of the applicant for a limited five (5) year period, and subject to appropriate conditions.

Introduction

5 The application for review, dated 10 October 2006, was lodged by Ms Claire Murray of The Planning Group WA Pty Ltd on behalf of Major Holdings Pty Ltd (applicant) against a decision of the Town of Vincent (respondent) at its Ordinary Meeting, on 12 September 2006, to refuse a planning application dated 10 January 2006 for a change of use of the western portion of the subject land, to "Warehouse and Fee Paying Car Park".

6 The application for review was made under the provisions of s 249(1) of the Planning and Development Act 2005 (WA) which provides for a review of a decision to refuse to grant approval.

7 The refusal to commence development was based on the following reasons:

"(i) the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality with respect to the adverse affect on the visual

(Page 4)

amenity of the locality and the streetscapes of Beaufort, Stirling and Parry Streets, and
(ii) the proposal is inconsistent with the Town's Policy relating to the Beaufort Precinct."

8 Prior to taking this decision, the matter had been considered at an Ordinary Meeting of Council on 22 August 2006 where it was resolved:

"That the item be DEFERRED to allow the Town's Officers to liaise with the applicant."

The subject land and legislative framework

9 The subject land can be described as Lot 123 (Nos 208 – 212) Beaufort Street, corner of Parry Street, Perth, on Diagram 9320. It is registered on Certificate of Title 1913, Folio 76.

10 An examination of the Certificate of Title shows that the site is 3040 square metres in area with a frontage to both Beaufort Street to the west and Stirling Street to the east of 30.2 metres. The side boundary to Parry Street is 100.76 metres long.

11 The subject land is zoned "urban" in the Metropolitan Region Scheme (MRS) and "commercial" in the Town of Vincent Town Planning Scheme No 1 (TPS 1). There is an existing building on the site towards Beaufort Street. The overall appearance of the western portion of the property was described as "dilapidated" in the report to Council of 12 September 2006. The site is directly opposite Weld Square to the south.

12 The land is subject to the Town of Vincent Planning and Building Policy Manual – Parking and Access (Policy 3.7.1) and the Town's Beaufort Precinct Policy (Policy 3.1.13).

Respondent's position

13 The position of the respondent is outlined in its Statement of Issues, Facts and Contentions, dated November 2006, as received at the Tribunal on 2 November 2006. It contends:

(a) The proposed development is considered to have a negative impact on the amenity of the locality; with specific impacts in terms of visual amenity.

(b) The development conflicts with Policy 3.1.13; namely:

(Page 5)

"Opportunities to improve the amenity of the area exist through the redevelopment of under-utilised or vacant sites to achieve predominantly, residential development. The focus on the city as a place for people to live is to see Beaufort, and the adjacent Northbridge and East Perth Precincts, and areas east and west of the city centre, develop further as inner city communities, each with shopping and meeting places, where owners and tenants in a variety of dwelling units will accept commercial neighbours as an advantage. The Beaufort Precinct provides a good illustration of a potential residential community. It still retains a solid residential component and links Northbridge which provides the required local facilities and services."

Applicant's position

14 The applicant's position is outlined in its Statement of Issues, Facts and Contentions, dated 10 November 2006. It argues:

(a) The proposed development will not have a negative impact on amenity (including visual amenity) for the following reasons:
(i) The subject land is zoned "commercial" where a car park is a discretionary use.

(ii) The proposed use is consistent with the current use of the eastern portion of Lot 123 and the adjacent Lot 802 being a 74 bay fee paying public car park operated by Wilson Parking. Wilson Parking would include the subject land within the operation of the existing car park. The eastern portion of Lot 123 was approved by the Town under delegated authority on 5 March 1998.

(iii) The site is surrounded predominantly by other commercial uses along Beaufort and Stirling Streets and is therefore consistent with immediately adjacent development and commercial uses along the surrounding streets.

(Page 6)

(iv) The proposed resurfacing and boundary landscaping works will enhance the surrounding streetscape along Parry and Beaufort Streets and from Weld Square and other surrounding streets.

(v) The use of the subject land as an active public car park will afford greater passive surveillance to the site itself and the entire locality by way of a "flow on" effect. Policy 3.1.13 encourages a link between the Beaufort Precinct and Northbridge and this development will promote passive surveillance for visitors to Northbridge.

(vi) The car park will operate all day, seven days a week and promote activity in a relatively stagnant inner urban area and reduce an overspill of parking from the adjacent car park onto residential streets.

(vii) The proposal will replace the current vacant and under-utilised site and eliminate the regular and unsavoury habitation by vandals and vagrants.

15 The proposed development is consistent with Policy 3.1.13 in that:

(a) the policy makes specific comments on four elements; namely Residential/Commercial, Commercial, Reserves and Traffic and Parking and Access. Commercial uses are to abut the streetscape and represent the primary use on the site.

(b) The policy requires careful control over design and site layout to ensure that the level of noise, visual amenity and privacy are appropriate to surrounding residential areas. Given that there are no residences in the immediate locality, and the proposed development is sufficiently distanced from mixed residential and commercial uses, there will be no visual impact on these developments.

(c) Any requirement that car parks should be located at the rear of properties is unreasonable in that the car park is the principal use of the site and needs to be visible to enable the public to easily identify available parking

(Page 7)

spaces. However, there will be a landscaped buffer around the perimeter of the site to improve appearance and contribute to the streetscape.
(d) The proposed car park will take pressure for parking off residential streets and service the commercial, entertainment and restaurant area of Northbridge. Given the recent closure of the Entertainment Centre car park, and the proposed residential/commercial development at the corner of Newcastle and Beaufort Streets, a greater demand for additional parking appears necessary.

Planning issues

16 The principal planning issues are:

(a) Is the proposed development consistent with orderly and proper planning and the preservation of the amenity of the locality; particularly with respect to visual amenity?

(b) Is the proposed development consistent with local policy; particularly that relating to the Beaufort Precinct?

Assessment of proposal

Background

17 On 5 March 1998 a conditional approval was granted under delegated authority for the construction of a 74 bay fee paying car park on the eastern half of the subject land and the adjacent Lot 802 to the north.

18 The development conditions included the construction of the car bays, footpaths and crossover, the management of on-site stormwater, the submission of detailed plans for site works, the containment of traffic and car parking so as not to be detrimental to adjoining property and the removal of a verge tree in Stirling Street. The car park is now fully operational.

19 The proposed development seeks to construct a further 36 car parking bays on the remaining western half of the subject land which has been vacant and advertised for rent for approximately two years. Only one expression of interest from Wilson Parking has been received to tenant the site.

(Page 8)

The proposed development

20 The proposed development envisages the construction of a 36 bay fee paying car park on the western portion (1471 square metres) of the subject land to be managed by Wilson Parking. The existing 98.7 square metres of landscaped garden area fronting Beaufort Street is to be retained, as well as the dividing fence and trees separating the western and eastern portions of the subject land.

21 There is a 334.6 square metre building on the western portion of the site which was formerly a Tandy electronics store. It is to be retained for warehouse purposes and for the archival storage of office documents for Wilson Parking. Four of the proposed car parking bays are for the use of the warehouse.

22 There are three existing cross-overs from Parry Street, one of which provides access to the existing 74 bay car park, whilst the other two provide access to the western portion of the subject land. A ticket machine is proposed to service the site and a disused ticket booth will be removed.

23 A new 1.5 metre landscaped area along the Parry Street frontage is proposed and resurfacing work will be required.

Statutory and policy provisions

24 The subject land is zoned "commercial" under TPS 1, wherein a warehouse is a permitted use and a car park is an "AA" use. "AA" means:

"the use is not permitted unless the Council has exercised its discretion by granting planning approval."

25 Under cl 38(5) of TPS 1 the Council is required, when determining an application, to have regard to:

"(a) the provisions of the scheme.

(b) any relevant planning policy.

…

(g) the orderly and proper planning of the locality.

(h) the conservation of the amenities of the locality."

26 Within Policy 3.1.13 the following statements are made: (Page 9)

"(1) General
The Beaufort Precinct is to become, essentially, a mixed-use area of predominantly residential uses. A diverse range of dwelling types integrated with compatible commercial activities, incorporating a strong commercial link with Northbridge along William Street, is to be strongly promoted … A sensitive mix of uses, built form and development intensity is to be attained through the establishment of residential/commercial areas. … The Beaufort Precinct provides a good illustration of a potential residential community…"
"(3) Commercial area
This area is to form an extension to Northbridge with shops, restaurants and other interactive uses continuing to be the predominant uses, cementing the physical link between Northbridge and the surrounding residential areas. … Car parks should not visually detract from the public environment or character of the area and, preferably, should not be visible from streets and public spaces. They should, therefore, be located underground or at the rear of properties…

Where it is considered that a particular development could have a detrimental impact on the amenity of the surrounding area (mainly adjacent residential development) it is to be subject to the advertising procedure set down in the Town of Vincent Town Planning Scheme No 1 and Town of Vincent Policy Manual."

"(5) Traffic, Parking and Access
The Town of Vincent is to endeavour to manage traffic flow in accordance with its functional road hierarchy and, in particular, the Town of Vincent is to discourage the movements of commercial traffic into adjacent residential streets.

Safe accessible provision for pedestrians, cyclists, public transport and other vehicles is to continue to be an important aim for the Precinct."

(Page 10)

27 Within Policy 3.7.1 the following statements are made:

(a) "Introduction
This Policy consolidates the Town of Vincent's parking requirements and outlines its approach to the provision of parking facilities for uses in the Town of Vincent … the provision of parking is based on the need to maintain high environmental standards and to facilitate the development of parking facilities that are regarded as valuable community facilities."
(b) "Policy Statement
1) 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.

2) The amenity of areas surrounding parking facilities is to be safeguarded. Parking facilities are to complement their surroundings and provide a convenient service, without causing undue disruption to surrounding uses. The development of facilities of the highest standard of design, layout and landscaping is expected.

3) Parking facilities are to be located so they do not dominate the surroundings or intrude into residential areas, public spaces or landscaped features of the environment …

…

5) Parking facilities are to be maintained to a high standard in terms of lighting, paving, draining, landscaping and layout, ensuring that the use of these facilities does not visually detract from the locality or impede pedestrian and cycle movement and vehicle circulation …"

(c) Under the Land Use Parking Requirement Table a warehouse use requires three spaces for the first 200 square metres of gross floor area and thereafter

(Page 11)

one space per 100 square metres of gross floor area or part thereof. As there is a warehouse use proposed as part of the development, an appropriate number of spaces would be required in accordance with the Table.

The matter of amenity

28 Amenity is defined in Sch 1 of TPS 1 as:

"all those factors which combine to form the character of the area to residents and passers by and shall include the present and likely future amenity."

29 In Cipriano v City of Perth (Unreported, Appeal No 20 of 1979) at page 5 amenity is described as:

"The sum of the expectations of the residents concerning the quality of their residential environment as determined by the character of the area, its appearance and land uses."

30 It would appear that it is the "visual" amenity that is of most concern to the respondent in this matter.

Other matters

31 In the applicant's submissions of 17 November 2006 the matter of the changing character of the locality was acknowledged in this way:

"The long-standing landowner acknowledges that the locality is beginning to change and accordingly a car park use may not reflect the optimal long-term use for the site. However, redevelopment in the area has only recently begun and higher land values that would encourage alternative uses on the site are not expected for some time.

As a compromise the landowner has suggested that a temporary planning approval be granted for a period of five years after which the approval would be reviewed."

32 In the view of the Tribunal, having regard to the circumstances of this case and the changing pattern of development in the locality, a time limit on any approval could be warranted.

33 The matter of a future 6 metre by 6 metre truncation at the corner of Beaufort Street and Parry Street as part of the existing "Other Regional Road" reservation in Beaufort Street in the MRS was raised in a letter to

(Page 12)

the Town of Vincent by the Department of Planning and Infrastructure (DOI) on 24 March 2006. One of the proposed car parking bays closest to the intersection is affected by the future truncation.

34 The point here is that the future planning requirements for the truncation need to be recognised by the parties at this time, and prior to the land being required for the widening.

35 The matter of an existing over-supply of car parking spaces in the locality was raised at the Ordinary Meeting of Council of 12 September 2006 in this way:

"… the Town's Ranger Services and Community Safety have observed that the general usage rates of the fee-paying car parking in the area, including along the surrounding streets, Stirling Street, Brisbane Street, and around Members Equity Stadium, are rarely full to capacity during the day (excluding the Brisbane Street car park at lunchtimes, evenings and weekends and the facilities closer to the Members Equity Stadium on days when functions are being held at the Stadium). This indicates that another fee-paying car park is not required in the area in the short term."

36 In the applicant's submissions of 17 November 2006 the following response was made:

"Observation of the adjacent car park indicates that there are consistently occupied car bays onsite. The Town's rangers have investigated a larger area than that concerning the immediate locality of the subject site and only during certain times. Furthermore, no evidence of these reports has been provided. An aerial photograph attached to the Applicant Statement of Facts, Issues and Contentions indicates that the existing car park on lot 123 is well utilised. As the locality develops further in the near future, and therefore attracts greater activity, a greater supply of car parking opportunity will reduce an overspill of parking into residential streets …"

37 The Tribunal is inclined to accept the position of the respondent in this matter because of their day to day exposure to parking demand and supply. However, in the total scheme of things, an additional 30 odd car bays, once the bays for the warehouse use have been provided, is unlikely to influence the market for car bay parking to a significant degree.

(Page 13)

38 A further matter relates to a draft "without prejudice" list of conditions should the development proceed. These conditions were listed in an advice to the Tribunal from the Town on 23 November 2006 and responded to on 8 December 2006 by the applicant.

39 Only two of the sixteen draft "without prejudice" conditions were opposed by the applicant in relation to new crossovers and the "making good" of the existing verge and kerb for any redundant or so-called "blind" crossovers. The Tribunal has noted the position taken by the parties on these matters and would not consider it unreasonable for any redundant crossover to be removed, and the verge and kerb made good by the applicant should the development proceed.

Conclusions

40 The application for review was lodged against a decision of the respondent to refuse a planning application for a change of use of the western portion of the subject land (1471 square metres) to "Warehouse and Fee Paying Car Park". The western portion is currently vacant.

41 In undertaking this review the Tribunal has had regard to the submissions of the parties along with the background to the matter, the existing statutory and policy provisions, the need or otherwise for such a facility, the matter of amenity and a set of draft "without prejudice" conditions prepared by the respondent should the development proceed.

42 What is clear from the submissions of the respondent is the belief that the proposed development is inconsistent with Policy 3.1.13 and would have a detrimental impact on the amenity of the locality; particularly visual amenity.

43 On the other hand, although the applicant acknowledges that the prime objective of Policy 3.1.13 is to become a mixed-use area of predominantly residential uses, and that this transition is beginning to occur, they argue that there are no residential uses immediately surrounding the site and the proposed development could not, therefore, impact on residential amenity.

44 From an analysis of Policy 3.1.13, the Precinct is divided into a Residential/Commercial area, a Commercial area and an area for Reserves. The subject land falls within the Commercial area which, although allowing for residential development, is intended to form an extension to Northbridge with shops, restaurants and other interactive uses

(Page 14)

continuing to be the predominant uses. The proposed development could be construed as an "interactive" use.

45 What can be said, though, is that the location of the subject land directly opposite Weld Square may well see a reconsideration of its zoning in the future to reflect its residential potential. However, that is certainly not the case today.

46 On the question of car parking, Policy 3.1.13 advises that, in the Commercial area, car parks should not visually detract from the public environment, should not be visible from streets and public spaces and should be located underground or at the rear of properties.

47 However, the Tribunal would agree with the applicant that these requirements are more appropriate to individual commercial developments which need to plan their associated parking sensitively. They are not requirements that can, as a whole, sensibly fit with a fee paying car park.

48 Of more assistance is Policy 3.7.1 which sets down broad objectives for so-called "parking facilities", which includes a fee paying car park; and a Land Use Parking Requirements Table for individual land uses, such as Warehousing.

49 What is clear is that there should be a strong emphasis on the design, layout and landscaping of "parking facilities" and that they should not dominate the surroundings or intrude into residential areas. This is a visual amenity issue.

50 Now on that point, it is also clear from the photographic evidence provided from both parties that the subject land in its current state is unkempt, and although a fee paying car park is of limited attractiveness, the proposed development would improve the present situation by way of resurfacing work, lighting, improved fencing and landscaping.

51 On the matter of amenity, it is stated in Policy 3.7.13 that in the Commercial area where a development could have a detrimental impact on the amenity of the surrounding area (mainly residential development) it is to be subject to the advertising procedure set down in TPS 1 and the Town of VincentPolicy Manual. That process was not followed in this case and it is not therefore possible to apply the Cipriano test of assessing the sum of the expectations of residents concerning the effect of the proposal on the quality of their residential environment.

(Page 15)

52 It may well be that the absence of adjacent residential development did not necessitate advertising, but this does not assist the respondent's argument on amenity grounds.

53 One test that is achieved in Policy 3.1.13 is in relation to traffic flow where ingress and egress to the proposed parking facility is on the minor Parry Street, rather than the more important Beaufort and Stirling Streets. In that sense the traffic flow is being managed in accordance with the road hierarchy and there is no vehicle movement into residential streets.

54 On the matter of supply and demand for car parking spaces there is a difference of view between the parties as to whether there is in fact a need for the proposed facility. The Tribunal is more inclined to the view of the respondent in that another fee paying car park is not required in the short term. However, there is no hard data to support the argument one way or the other.

55 The Tribunal takes the view that no matter what the market circumstances, the mere provision of some 30 odd bays, once the parking requirements for the warehouse have been met, is unlikely to influence the market to a significant degree.

56 In the view of the Tribunal it is not possible to take a position, as the respondent has, that the proposed development is inconsistent with the Beaufort Precinct Policy. The proposal is consistent with the Policy and, in that sense, is consistent with orderly and proper planning. Again, the development would help to improve the visual amenity of the site over and above its current dilapidated state. In so doing, it will moderately improve the amenity of the immediate locality.

57 On balance the Tribunal believes that the weight of argument falls with the applicant, but that any approval should be limited in time and subject to conditions.

58 The following conditions are imposed by the Tribunal:

(a) the approval is granted for a five year period only from the date of this decision;

(b) the car parking area(s) on the subject land shall be sealed, drained, paved and line marked in accordance with the approved plans prior to the first occupation of the development and maintained thereafter by the

(Page 16)

owner(s)/occupier(s) to the satisfaction of the Town of Vincent;
(c) all signage that does not comply with the Town's Policy relating to signs and advertising shall be subject to a separate planning application, and all signage shall be subject to a separate sign licence application, being submitted and approved prior to the erection of the signage;




(d) prior to the first occupation of the development or commencement of the use on-site, whichever occurs first, the owner(s) shall enter into a legal agreement with the Town and lodge an appropriate assurance bond/bank guarantee of $5000, undertaking to create the fee paying car park use within three (3) years of the first occupation of the development or commencement of the use on-site. The legal agreement shall be secured by an absolute caveat on the Certificate(s) of Title of the subject land. The legal documentation shall be prepared by the Town's solicitors or other solicitors agreed upon by the Town. All costs associated with this condition, including the cost of the Town's solicitors to check the documentation if prepared by other solicitors, shall be borne by the applicant/owner(s);




(e) any new street/front wall, fence and gate between the Beaufort Street boundary and Parry Street boundary and the main building, including along the side boundaries within this front setback area, shall comply with the following:

(1) the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;

(2) decorative capping on top of posts and piers may extend the total maximum height of the posts and piers to 2.0 metres above the adjacent footpath level;

(3) the maximum width, depth and diameter of posts and piers being 350 millimetres;

(Page 17)

(4) the maximum height of the solid portion being 1.2 metres above the adjacent footpath level, and the section above this solid portion being visually permeable, with a minimum 50 per cent transparency; and

(5) the provision of a minimum 1.5 metres by 1.5 metres truncation where walls, fences and gates adjoin vehicle access points, or where a driveway meets a public street or right of way; and a minimum 3.0 metres by 3.0 metres truncation where two streets intersect. Walls, fences and gates may be located within this truncation area where the maximum height of the solid portion is 0.65 metre above the adjacent footpath level;

(f) all car-parking bays shall comply with the minimum specifications and dimensions specified in the Town's Parking and Access Policy and Australian Standards AS2890.1 – "Off Street Parking";

(g) all pedestrian access and vehicle driveway/crossover levels shall match into existing verge/footpath levels;

(h) all stormwater produced on the subject land shall be retained on site to the satisfaction of the Town's Technical Services Division. No further consideration will be given to the disposal of stormwater without the submission of a geotechnical report from a qualified consultant. Plans detailing stormwater disposal shall be submitted and approved prior to the first occupation of the development or commencement of the use on-site;

(i) all new crossover/s to allotments are subject to a separate approval by the Town's Technical Services Division and shall be constructed in accordance with the Town's Standard Crossover Specification/s which, in particular, specify that the portion of the existing footpath traversing the proposed crossover, subject to the existing footpath being in a good condition as determined by the Town's Technical Services Division, must be retained such that it forms a part of the proposed crossover and the proposed

(Page 18)

crossover levels shall match the level/s of the existing footpath. Crossovers may be constructed by a private contractor provided they are constructed in accordance with the above specifications and a security bond of $275 is paid prior to crossover approval. Application for the refund of the bond must be submitted in writing;
(j) proposed crossovers shall be positioned in consultation with and as directed by the Town's Technical Services Division;

(k) prior to the first occupation of the development, redundant or "blind" crossovers shall be removed and the verge and kerb made good to the satisfaction of the Town's Technical Services Division, at the applicant's/owner(s)' full expense;

(l) the movement of all path users, with or without disabilities, within the road reserve shall not be impeded during construction works. The area shall be maintained in a safe and trafficable condition and a continuous path of travel (minimum width of 1.5 metres) shall be maintained for all users at all times during construction works. If the safety of the path is compromised by either construction damage or a temporary obstruction then appropriate warning signs (in accordance with AS1742.3) are to be erected. If a continuous path cannot be maintained, temporary pedestrian facilities suitable for all users shall be installed. Prior approval must be obtained from the Town's Technical Services Division if scaffolding, site fencing or the like is to be erected, or building materials stored, within the road reserve;

(m) provision of adequate car parking bays and associated parking facilities for persons with disabilities;

(n) the illuminance from any lighting within the subject property shall be confined to the limits of the property boundaries and away from adjoining properties;

(o) a detailed landscaping plan, including a list of plant, landscaping and reticulation of the landscaped areas adjacent to Parry Street and Beaufort Street, and the provision 1 tree for every 4 car bays, shall be submitted

(Page 19)

and approved prior to first occupation of the development. All such works shall be undertaken prior to the first occupation of the development, and maintained thereafter by the owner(s)/occupier(s);
(p) a minimum of four non-fee paying car bays shall be provided, marked and signposted exclusively for the warehouse use on site; and

(q) a road and verge security bond or bank guarantee of $700 shall be lodged with the Town prior to the first occupation of the development, and be held until all building/development works have been completed and/or any disturbance of, or damage to, the Town's infrastructure, including street verge trees, has been repaired/reinstated to the satisfaction of the Town's Technical Services Division. An application for the refund of the security bond or bank guarantee must be made in writing. This bond is non-transferable.

Orders

59 For the foregoing reasons, and in accordance with s 29(3)(c)(i) of the State Administrative Tribunal Act 2004 (WA), the orders of the Tribunal are as follows:

1 The decision under review is set aside.

2 That the matter is determined in accordance with the conditions outlined in paragraph 58 of this decision.

I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR L GRAHAM, SENIOR SESSIONAL MEMBER