MCDONALD'S AUSTRALIA LIMITED and CITY OF BELMONT - [2012] WASAT 42

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MCDONALD'S AUSTRALIA LIMITED and CITY OF BELMONT [2012] WASAT 42

MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: 16, 17 AND 18 JANUARY 2012

DELIVERED : 1 MARCH 2012

FILE NO/S: DR 265 of 2011

BETWEEN: MCDONALD'S AUSTRALIA LIMITED
Applicant
AND
CITY OF BELMONT
Respondent

Catchwords:

Town planning Development Fast food/takeaway outlet McDonald's 24 hour trading Appropriate use in a mixed use zone Mix of varied but compatible uses Nuisances detrimental to amenity Increased traffic Late night traffic Antisocial behaviour Litter Primary regional road Median strip prevents certain movements Adjoining commercial/industrial uses Recent residential development in locality Resident objections Relevant locality Precedent of McDonald's in municipality

Legislation:

City of Belmont Local Planning Scheme No 15, cl 1.6, cl 1.6(c), cl 1.6(f), cl 4.2, cl 9.4.3, cl 10.2, cl 14.6, Pt 4, Sch 1
City of Belmont Town Planning Scheme No 14, cl 10.5.8
Environmental Protection (Noise) Regulations 1987 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)

Result:

Application for review allowed
Decision to refuse development set aside and decision substituted granting approval subject to conditions

Category: B

Representation:

Counsel:

Applicant: Mr MH Zilko SC and Ms L Rowley
Respondent: Mr D McLeod

Solicitors:

Applicant: Norton Rose Australia
Respondent: McLeods

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

Gosatti Holding Pty Ltd v City of Fremantle (Appeal No 48 of 1999 delivered 17 March 2000)
Miller and City of Stirling [2007] WASAT 247
Ridgecity Holding Pty Ltd and City of Albany [2006] WASAT 187
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR WA 296
Woolworths Ltd and City of Joondalup [2009] WASAT 41

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

These proceedings involved an application for review of a decision by the City of Belmont to refuse development approval for the development of a McDonald's Family Restaurant on the corner of Great Eastern Highway and Daly Street, Belmont.
It was accepted by both parties that the objective for the mixed use zone established by the City of Belmont Local Planning Scheme No 15 was central to the assessment of the application.
Two issues arose from cl 4.2 of the City of Belmont Local Planning Scheme No 15:
1)Was the proposed use appropriate in this zone given the parameters for land uses established by the provisions of City of Belmont Local Planning Scheme No 15?
2)Were the potential impacts on the amenity of the district or to the health, welfare and safety of its residents acceptable?
In regard to the former, the Tribunal found it was reasonable to conclude that the proposed use was appropriate in the mixed use zone in terms of the provisions of the scheme.
In assessing the increased traffic impacting on the locality given the close proximity of Great Eastern Highway, existing commercial/industrial uses to the north, the connected nature of the road network in the locality, and, importantly, the link Daly Street and Elmsfield Street provides from Hardey Road to Great Eastern Highway, and the broad catchment for Centenary Park the Tribunal does not regard the projected flows on the local road network as unacceptable.
The respondent's coordinator for crime prevention, in liaison with the Belmont Police, reviewed the incidence of antisocial behaviour in regard to fast food/takeaway outlets in the City of Belmont. It was concluded that, based on the existing Abernathy Road McDonald's and Lyall Street McDonald's, there is currently no evidence to suggest that antisocial behaviour will increase with the proposed development.
Given the increasing trend to 24 hour trading generally, existing 24 hour facilities in proximity to the proposed facility, and a location on a major arterial road which serves to link the Perth Central Business District with Perth Airport and beyond, the Tribunal is of the view that it would not be reasonable to limit the trading hours.
For these reasons the review was upheld subject to conditions.

Introduction

These proceedings involve an application brought by McDonald's Australia Limited (applicant or McDonald's) under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the City of Belmont (respondent, City or Council) to refuse development approval under the City of Belmont Local Planning Scheme No 15 (LPS 15 or Scheme) for the development of a McDonald's Family Restaurant at No 235 (Lot 19) Great Eastern Highway, Belmont (subject site).
The subject site, which is on the corner of Great Eastern Highway and Daly Street, is zoned Mixed Use under the Scheme.
On 6 July 2011 the Council refused to grant development approval for the application, and on 3 August 2011 the applicant made application to the Tribunal for a review of that decision.

Site and locality

The subject site is located on the southeast corner of the intersection of Great Eastern Highway and Daly Street. Great Eastern Highway is classified as a 'Primary Regional Road' under the Metropolitan Region Scheme (MRS) and serves to link the Perth Central Business District (Perth CBD) with the eastern suburbs, Perth Airport and beyond to the regional hinterland. The section of Great Eastern Highway between Kooyong Road and Tonkin Highway is currently undergoing widening by Main Roads WA and will function as a three lane divided road. A median strip will prevent right hand turns into and out of Daly Street for vehicles travelling east on Great Eastern Highway.
The area of the subject site, following the recent resumption for road widening, is 2,783 square metres and it has a 45.95 metre frontage to Great Eastern Highway. It is currently used for administration and the display of prefabricated housing units.
The adjoining uses on Great Eastern Highway comprise the Mane Liquor Store, Muzz Buzz and a backpackers' establishment to the east of the subject site, and to the west, across Daly Street, ORH Engineering, a machine hire business. More broadly, this section of Great Eastern Highway is characterised by fast food/takeaway restaurants, outdoor display, and light industry/service commercial uses.
The western side of Daly Street between Great Eastern Highway and the intersection with Barker Street has, to the south of ORH Engineering, a commercial/industrial structure followed by a large, hard surfaced area which appears to be used as a holding area for Budget Car and Truck Rental. This site goes all the way down to Barker Street and is generally hidden from view, particularly its southern portion, by a large hedge adjacent to the Daly Street and Barker Street boundaries.
The eastern side of Daly Street, between Great Eastern Highway and the intersection with Barker Street, has a number of commercial/industrial structures to the south of the subject site. To the south of these is a Department of Housing residential development comprising approximately 27 dwellings, of which two appear to face Daly Street. This development is 121 metres from the southern extremity of the subject site. To the south of this development, facing the intersection with Barker Street, is the northern edge of Centenary Park.
To the south of Barker Street, between Belgravia Street and Daly Street, is Belgravia Estate, a recently developed residential estate on a former Western Power depot site. The residences on Daly Street face across to Centenary Park. Centenary Park is a large park which includes a sporting field on the northern portion and a water body on the southern portion. A sporting club facility is located on the northern section of the park accessed from Daly Street. The Council has recently undertaken improvements to the park in the central section facing Daly Street. These include improved landscaping, seating areas, lighting and a public toilet.
The residences within Belgravia Estate, which face Barker Street, face commercial/industrial uses to the north of Barker Street. These generally comprise substantial commercial/industrial structures with the exception of the holding area for Budget Car and Truck Rental on the corner of Barker Street and Daly Street.

The proposed development

The proposed development comprises a McDonald's fast food/takeaway restaurant.
The proposed structure will be set well back from Great Eastern Highway towards the rear of the site. A parking lot is to be provided between the proposed building and the Great Eastern Highway boundary. This boundary has been amended following the resumption of 161 square metres for the road widening of Great Eastern Highway. A landscaping strip is proposed between the parking area and both the Great Eastern Highway and Daly Street boundaries.
Access to the development will be provided by two crossovers to Daly Street; the crossover central to the Daly Street boundary will provide ingress and egress to the parking area and entry to the drive through facility on the southern side of the building. Egress only from the drive through facility will be around the rear of the building on the southern end of the Daly Street boundary.
The gross floor area of the proposed building comprises 373 square metres, including an external dining terrace on the corner facing Daly Street and Great Eastern Highway, a roofed play area facing Great Eastern Highway and a roofed corral for refuse bins. Provision for patron seating has been provided as follows:
•Internal dining 71;
•Terrace 35;
•Playland 6;
•Open outdoor 24;
•Total 136;
Fiftyfour car parking spaces have been provided. These comprise 39 parking bays, one accessible bay, 12 drive through stack spaces and two drive through wait bays.
It is proposed that the restaurant will operate from 5 am 11 pm Sunday to Thursday and 5 am 12 pm Friday and Saturday, and that the drive through facility will operate 24 hours per day, seven days per week.

Planning framework

The site is zoned 'Urban' under the MRS. It is zoned Mixed Use under LPS 15. The initial application was dealt with by the respondent under the provisions of the then applicable City of Belmont Town Planning Scheme No 14 (TPS 14). The site was zoned Mixed Use under that scheme.
Although this review commenced under the operation of TPS 14, it was common ground between the parties that the applicable town planning scheme in the determination of this matter was LPS 15, which was gazetted on 1 December 2011. This position is consistent with observations made by Senior Member Parry in Miller and City of Stirling [2007] WASAT 247 at [43 47]. Consideration of the matter under LPS 15 does not make a material difference in terms of either the ability to grant approval or the considerations which need to be taken into account in deciding to give approval.
The site abuts Great Eastern Highway which is classified as a 'Primary Regional Road' under the MRS. This road is identified as an urban corridor and designated as a secondary freight route in the Central Metropolitan Perth SubRegional Strategy August 2010.
Clause 1.6 of LPS 15 sets out the aims of the Scheme and at subclause (c) seeks:
to provide for housing choice and variety in neighbourhoods with a community identity and high level of amenity[.]
At subclause (f) cl 1.6 seeks:
to safeguard and enhance the character and amenity of the built and natural environment of the City[.]
Part 4 of LPS 15 deals with 'Zones and the Use of Land'. Table 1 establishes 'Fast Food/Take Away' as an 'A' use in the mixed use zone. An 'A' use means:
… [T]he use is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 9.4[.]
Clause 9.4.3 of LPS 15 sets out the ways the local government may give notice, or require the applicant to give notice, of an application for planning approval.
A 'Fast Food/Takeaway' use is defined in Sch 1 of LPS 15 as follows:
… [P]remises used for the preparation, sale and serving of food to customers in a form ready to be eaten without further preparation, primarily off the premises, but does not include a lunch bar[.]
The objectives of each of the zones are set out in cl 4.2 of the Scheme which identifies the following objectives for the mixed use zone:
The Mixed Use Zone is intended to allow for the development of a mix of varied but compatible land uses such as housing, offices, showrooms, amusement centres, eating establishments and appropriate industrial activities which do not generate nuisances detrimental to the amenity of the district or to the health, welfare and safety of its residents. Buildings should be of a high standard of architectural design set in pleasant garden surrounds with limited vehicular access from properties to primary roads.
Finally, at cl 10.2 the Scheme sets out 'Matters to be considered by local government' in dealing with a planning application and includes the following:
(a)the aims and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area (including the Metropolitan Region Scheme);
(b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
…
(f)any Local Planning Policy adopted by the local government under clause 2.4, any heritage policy statement for a designated heritage area adopted under clause 7.2.2, and any other plan or guideline adopted by the local government under the Scheme;
…
(i)the compatibility of a use or development with its setting;
(j)any social issues that have an effect on the amenity of the locality;
…
(n)the preservation of the amenity of the locality;
…
(q)the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(y)any relevant submissions received on the application;
(z)the comments or submissions received from any authority consulted under clause 10.1.1;
…

Respondent's decision

The application dated 28 February 2011 seeking approval for the development of a McDonald's Family Restaurant at No 235 (Lot 19) Great Eastern Highway, Belmont was submitted to the Council on 8 March 2011.
The development was referred to the surrounding owners/occupiers in accordance with cl 10.5.8 of the then applicable TPS 14, and 47 submissions were received of which 46 objected to the proposed development.
On 6 July 2011 the Council refused to grant development approval for the application for the following reasons:
1.It is considered that the size and scale of the proposed development is inconsistent with the aim of Town Planning Scheme No 14 to provide for housing choice and variety in neighbourhoods with a community identity and high level of amenity.
2.It is considered that the size and scale of the proposed development is inconsistent with the aim of Town Planning Scheme No 14 to safeguard and enhance the character and amenity of the built and natural environment of the local government area.
3.The proposed development undermines the objectives of the City's Housing Strategy, Local Planning Policy No 1, Local Planning Policy No 22, the objectives [of the] Mixed Business Zone and the City's Vision for the Mixed Business Zone.
4.The proposal is likely to detrimentally impact on the existing amenity of nearby residential and business owners/occupiers due to the hours of use and the vehicle numbers attracted being unusual in the locality. Flow on impacts detrimental to amenity in terms of safety, litter and noise may also be anticipated.

The issues

The respondent identified an extensive schedule of issues in the matter. The applicant challenged a number of these issues and suggested amendments to others. During the hearing these issues were subject to further discussion and the matter proceeded on the basis that the central issues were those set out below.
It was agreed that the definition of 'Fast Food/Takeaway' use under LPS 15 was a use requiring the exercise of discretion by the Council or the Tribunal in its place on review.
The question then turns on the criteria against which the proposal should be assessed in reaching a decision to exercise, or not to exercise, such discretion.
It was accepted by both parties that the objective for the mixed use zone, established by cl 4.2 of LPS 15, was central to any such assessment. This clause reads as follows:
The Mixed Use Zone is intended to allow for the development of a mix of varied but compatible land uses such as housing, offices, showrooms, amusement centres, eating establishments and appropriate industrial activities which do not generate nuisances detrimental to the amenity of the district or to the health, welfare and safety of its residents. Buildings should be of a high standard of architectural design set in pleasant garden surrounds with limited vehicular access from properties to primary roads.
Two issues arise from this clause:
1)Is the proposed use appropriate in this zone given the parameters for land uses established by the provisions of LPS 15?
2)Are the potential impacts on the amenity of the district or to the health, welfare and safety of its residents acceptable?
It was agreed by the parties that the standard of the proposed building was not an issue.
While an assessment of the first issue is fairly straightforward, the impacts on the amenity of the district raise the further question of the establishment of the relevant 'locality'.
In terms of the assessment of the potential impacts on the amenity of the locality in Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346, the Tribunal, at [37], referred to the test of impact on amenity as articulated in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR WA 296 at [304]:
The determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the matter in which the proposed use will affect the existing amenity and the degree of impact on the locality.

Issue 1: is the proposed use appropriate in this zone given the parameters for land uses established by the provisions of LPS 15?

Clause 4.2 of LPS 15 seeks 'to allow for the development of a mix of varied but compatible land uses such as housing, offices, showrooms, amusement centres, eating establishments and appropriate industrial activities' in the mixed use zone.
'Eating establishment' is not defined in TPS 15. The Scheme does, however, differentiate between restaurants 'where the predominant use is the sale and consumption of food and drink … and where seating is provided for patrons'; and a 'Fast Food/Takeaway Outlet' involving 'the preparation, sale and serving of food to customers in a form ready to be eaten without further preparation, primarily off the premises'.
Given the extent of patron seating proposed in the application under review, the only issue is whether the drive through facility meets the 'eating establishment' criteria. This issue was not raised in submissions by the respondent in this matter. In addition, evidence was led that a number of drive through facilities had been approved by the respondent in the immediate locality. These included a drive through Muzz Buzz coffee facility, a liquor store and, fast food restaurants such as Hungry Jacks and KFC, with drive through facilities.

In addition, the Scheme report for TPS 15 at cl 14.6 suggests the mixed use zone provides for the development of a number of varied but compatible land uses which specifically includes reference to fast food/takeaway uses.
In this context, it is reasonable to conclude that the proposed use is appropriate in the mixed use zone in terms of the provisions of the Scheme.

Issue 2: are the potential impacts on the amenity of the district or to the health, welfare and safety of its residents acceptable?

The locality

In St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318 (St Patrick's) the Tribunal drew on Ridgecity Holding Pty Ltd and City of Albany [2006] WASAT 187 which considered the concept of locality and observed at [42] as follows:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case …
The respondent submitted that the relevant locality is that area where there is some potential for impacts, while counsel for the applicant argued there must always be a cutoff in terms of impacts and submitted that, in the applicant's view, Belgravia Estate would not be included in the locality.
It should be noted that the joint town planning expert witness statement of Ms Juliette Gillan, Manager of Planning Services for the respondent, and Mr Ray Haeren, planning consultant, expert witnesses for the respondent and applicant respectively, included their two very different interpretations of 'locality'.
While the Tribunal accepts, in principle, the submission of the counsel for the respondent, it does not accept the area identified by Ms Gillan.
Given that the substantive question at issue was the potential traffic impacts of the development and the additional concerns with noise, antisocial behaviour and rubbish generally derived from such potential traffic flows, the Tribunal is of the view that the relevant locality should derive from the area potentially affected by increased traffic flows. The expert traffic witnesses, while providing differing quantums in terms of potential impacts, agreed the additional vehicle flows would occur on Daly Street, Barker Street and Elmsfield Street.
In this context the Tribunal is of the view that the relevant locality is those properties fronting onto, or in close proximity to, Daly Street, Barker Street and Elmsfield Street.
While recognising the concerns raised by residents in submissions to the respondent with regard to the proposed McDonald's Family Restaurant, the Tribunal notes that many of these were received from residents outside the likely area of impact established by the Tribunal.

The existing amenity of the locality

Mr FernandesDodsley, a locality witness for the respondent, submitted that one of the attractions in choosing his family's home site was the fact that it provided an ideal environment to bring up children, considering that Daly Street is ordinarily a quiet street and from the site he looked directly over Daly Street into Centenary Park. He noted that the park has been improved and landscaped by the City to a very high level, with children's playgrounds and other family orientated facilities.
In crossexamination Mr FernandesDodsley conceded there were litter and traffic issues in the locality but submitted that this only occurred a handful of times during the year.
Dr Trigger, a locality witness for the respondent, submitted that she and her husband had chosen their home site principally because of its location across the road from Centenary Park, but also because of the quality of the estate, and the close vicinity to Perth CBD. She argued that Daly Street is quite wide, but is normally very quiet, and that the quietness of the street and the closeness of Centenary Park was a particular attraction. So far as traffic is concerned she submitted that at the moment Daly Street carries light traffic during the day, and particularly late at night and in the early hours of the morning.
She also submitted that when she and her husband first moved into their home in Daly Street there was an existing behaviour problem. As Daly Street is quite wide, it seemed to encourage speeding, burnouts and hoon driving. The hoon driving extended into the park, originally with vehicles performing donuts and such like. She argued that, as Belgravia Estate was developed, the strangers visiting the area have been greatly reduced, and that during the late night and early hours there are now few visitors to the area and very little hoon driving and unruly behaviour.
Ms Nada Velemir, the final locality witness for the respondent, submitted that she and her husband saw the Belgravia Estate as a quiet, new locality with a high standard of residential development. They valued their proximity to Centenary Park as it provided a place for their sons to play safely.
In regard to traffic, Ms Velimir submitted that traffic at the present time in Vaucluse Circuit during the day and night tends to be principally local traffic, except that during the day a lot of couriers and truck drivers park their vehicles in the Centenary Park parking area, especially at lunch time to eat their lunches. This, she argued, was not an overwhelming problem as those traffic movements occur in daylight hours and, principally, in the middle of the day. At the moment, in the early hours of the morning, there are hardly any vehicles using Daly Street and Vaucluse Circuit.
Ms Velemir also noted that the City went to great lengths during 2009/2010 to upgrade Centenary Park, providing a high level of landscaping and facilities which included public toilets.
Under crossexamination Ms Velemir acknowledged a letter she and her husband had sent to the City on 27 April 2011 in response to the application the subject of this review. This correspondence noted a number of existing problems in the locality which included the fact that the carpark is a hangout for hooligans who meet in groups, do burnouts, behave in an unruly fashion, make noise, play loud music, fight, smash street lights and graffiti the park, particularly at night. The carpark is also inadequate during rugby season with overspill parking occurring in Daly Street, and has been used as the waiting area for a brothel that was operating in Daly Street. In addition, the carpark is utilised for sexual encounters at night.
Ms Velemir did, however, submit that things have changed since this correspondence was written. She suggested that the completion and occupation of most houses in the area was likely to be the reason for this improvement.
Each of the three locality witnesses lived on Daly Street, although Ms Velemir's residence faced Vaucluse Circuit with a side boundary to Daly Street. The closest of these residences to the site the subject of this review was approximately 300 metres. No locality witness statements were received from residents in Daly Street north of Barker Street (125 metres from the subject site) or Barker Street (approximately 197 metres to the closest site, although this site is currently undeveloped).
The pro forma objection letter to the respondent on the proposal, dated 18 April 2011, also acknowledged that the residential area already suffers burnouts, speeding and other hoon activities, particularly on Barker Street and Daly Street.
It is clear that the amenity of the area has, in the past, suffered a range of adverse impacts which included speeding, burnouts and hoon driving, unruly behaviour, overspill parking associated with sporting events, sexual encounters at night in the parking area and the impact of a brothel which operated in the area for some time.
However, the Tribunal accepts, in broad terms, the evidence of locality witnesses that these impacts have greatly reduced since April 2011, and that issues with antisocial and late night behaviour tend to be intermittent rather than a daily experience.

The manner in which the proposed use will affect the existing amenity

The locality witnesses for the respondent raised a number of concerns in terms of the potential impact of the current application on the amenity of the locality.
These generally reflected the issues identified in the pro forma letter prepared by Dr Trigger, which constituted, numerically, the majority of the objections received by the respondent to the proposal. These included:
•increased traffic using the local residential area;
•24 hour takeaway generating late night noise as a result of vehicles using local roads to access the site, and customers using Centenary Park;
•24 hour takeaway encourages antisocial use of local amenities and Centenary Park; and
•24 hour takeaway generating litter in Centenary Park and private gardens.
Both Mr FernandesDodsley and Dr Trigger submitted that the increased traffic raised issues both in terms of noise and safety. All three locality witnesses placed particular concern on the potential impacts of traffic noise and antisocial behaviour in Centenary Park between 10 pm and 6 am. Dr Trigger submitted that attracting 'stranger traffic' back into the area was particularly concerning between 10 pm and 6 am. Evidence was submitted that the residences of both Mr FernandesDodsley and Dr Trigger had master bedrooms facing Centenary Park.
The Tribunal accepts that the potential impacts on the locality result from the increases in traffic on Daly Street, Barker Street and Elmsfield Street, and the additional concerns raised by residents deriving from those increases, particularly later in the evening or in the early morning.

The degree of impact on the locality

Expert witness statements on traffic impacts was provided by Mr Bordbar, consultant traffic engineer for the applicant, and Mr Tan, Manager Project and Development for the respondent. While there remained important issues in contention between these two witnesses they did agree that:
•the level of increase in traffic on the surrounding road network as a result of the proposed McDonald's Family Restaurant is within the function and capacity of these roads; and
•the total estimate of trips (both ins and outs) likely to be generated by the development was 2,960 trips (both in and out on a typical peak Friday).

The major issues on which the traffic experts did not agree were:

•the estimated percentage of customers that would be passing trade, particularly between the hours of 10 pm Friday and 6 am Saturday; and
•the estimated number of vehicles likely to use 'rat run' routes from Belgravia Street and Barker Street to Daly Street, and from Hardey Road and Elmsfield Street to Daly Street, to access the proposed McDonald's Family Restaurant.

Estimated total daily traffic flows

The two traffic experts provided estimated total daily traffic flows on the local road network should the development proceed. These figures, while not directly comparable, are broadly compatible for both Barker Street and Elmsfield Street, where the impacts are of most concern. The estimated total daily flows on Barker Street ranged from 1,209 to 1,296 (VPD) and the estimated total daily flows on Elmsfield Street ranged from 1,296 to 1,380 (VPD),
In terms of potential traffic flows between Friday at 10 pm and Saturday at 6 am the following figures were provided.

Estimated Traffic Flows Friday 10 pm to Saturday at 6 am

Existing	Additional	Total
Daly Street (between Barker and GEH)	27	56 (Bordbar)	83(Bordbar)
Daly Street (between Barker and GEH)	27	112 (Tan)	139 (Tan)
Barker Street (between Belgravia Street and Daly Street)	29	11(Bordbar)	40 (Bordbar)
Barker Street (between Belgravia Street and Daly Street)	29	23(Tan)	52 (Tan)
Elmsfield Street (west of Hardey Road)	57	45(Bordbar)	102 (Bordbar)
Elmsfield Street (west of Hardey Road)	57	90(Tan)	147(Tan)

Mr Tan's estimate flows are higher for all three streets. Also, while he did not provide figures, the estimated flows do not include his estimate of the number of vehicles likely to use 'rat run' routes. This would potentially increase his estimates by an unspecified amount.
Essentially, Mr Bordbar submitted that, in his opinion, the level of potential increased traffic on the surrounding local streets will not undermine traffic flow and road safety, and will not impact on the existing amenity to an unacceptable level.
Mr Tan, however, argued that even relatively small increases in numbers in terms of road capacity may involve substantial increases in amenity terms. He registered his concerns in regard to early morning and late night traffic as a result of the 24 hours, seven days per week business operation, which he felt would be particularly noticeable between 11 pm and 6 am.
Mr Haeren submitted that he considered it most likely that the use of Daly Street and Barker Street to access the site will be by Belmont residents familiar with the locality, rather than passing traffic from Great Eastern Highway. In terms of the potential traffic impacts, he noted that Daly Street and Barker Streets were part of the public street network which connects between arterial roads and links a mixture of residential, recreational and commercial nodes. In his view, the suggestion that long, convoluted movements would occur through these streets was not supported by the traffic modelling.
He also questioned the causal link between a McDonald's Family Restaurant and antisocial behaviour, which he suggested was unfounded, and noted that the respondent's coordinator for crime prevention, in reviewing the application, was of the view that there was no evidence to suggest that antisocial behaviour would increase.
Mr Haeren also noted that McDonald's was proposing the introduction of a litter patrol, and that the respondent's Health Department has concluded the application was compliant with the Environmental Protection (Noise) Regulations 1987 (WA).
Mr Haeren concluded that Daly Street and Barker Street are part of an integrated street network, and that the traffic impact associated with the proposal would not, in his view, have an undue impact on the amenity of the locality, and that any potential concerns could be dealt with through appropriate conditions and management.
Ms Gillan identified the location as the major problem with the current application. She regarded the subject site as the worst possible place for McDonald's Family Restaurant along the whole of the City's Great Eastern Highway frontage.
Ms Gillan submitted there was a clear potential for Daly Street to be used by traffic approaching a McDonald's Family Restaurant from the east. The fact that no right turn was permitted from the subject site onto Great Eastern Highway could also result in the use of Daly Street. Ms Gillan did not assess the efficacy of the proposed Uturn facilities, currently being provided at Belgravia Street and Hardey Street as part of the Main Roads WA upgrade of Great Eastern Highway, in her witness statement.
In submitting these arguments, Ms Gillan suggested that the respondent's LPS 15 Local Housing Strategy Report (Local Housing Strategy) and Mixed Use Study Draft Report were relevant in assessing a discretionary use such as the application the subject of this review. The Local Housing Strategy seeks to provide a direction for the future planning for residential development, densities and housing types within the City. The Mixed Use Study Draft Report seeks to establish a 'Vision Plan' for mixed use developments in an area to the southwest of the subject site. The Tribunal, however, rejects any suggestion that strategies, studies or, in fact, policies specifically developed for the management of either different uses or defined areas which do not cover the subject site are relevant in a determination of the merits of the application under review.
Ms Gillan also submitted that the introduction of incompatible land uses, such as uses which impose additional nonlocal traffic on the streets in and surrounding Belgravia Estate, had the potential to undermine the respondent's objective of encouraging a higher standard of infill housing in appropriate locations. She argued that Centenary Park is, to all intents and purposes, located within Belgravia Estate. The current application created the potential for the integrity of the park to be jeopardised by insensitive activity by nonlocal visitors, and by litter associated with the development and use of a 24 hour fast food/takeaway outlet in close proximity.
Ms Gillan identified actual and perceived problems as increased traffic movements (including safety issues), increased litter and late night noise. Such amenity impacts, in her view, are likely to result in the erosion of the standard of development in Belgravia Estate and surrounds over time.
Mr Deague, Director of Community and Statutory Services for the Council, was the second expert town planning witness called by the respondent. He reiterated the respondent's concern with potential impacts on Belgravia Estate and the lack of compatibility, in his view, between the proposed McDonald's Family Restaurant and nearby residential developments. He argued that the adverse effects associated with the proposed development could not be contained within the subject property which is, in his view, a key requirement for successful mixed use development. Such adverse effects were, in his view, exacerbated where the hours of operation exceed normal working hours.
He concluded that the high quality Belgravia Estate is at serious risk of the amenity of residents being compromised by traffic movements and antisocial behaviour from patrons of a McDonald's Family Restaurant, especially at night.
Essentially, the expert town planning witnesses called by the respondent argued that, in terms of late night/early morning traffic, one additional car per hour would have a huge impact, and any increase in vehicular movements would be a problem.

The precedent of the Lyall Street McDonald's Family Restaurant

In addition to the locality witnesses from Daly Street and Vaucluse Circuit, the respondent also drew upon the experience of complaints in regard to traffic, noise and litter associated with the operation of the 24 hour McDonald's Family Restaurant at the intersection of Lyall Street and Great Eastern Highway, and called witnesses from the Lyall Street locality.
Evidence submitted suggested that, prior to the culdesac treatment provided by the respondent at Lyall Street, traffic travelling toward the Perth CBD which was prevented from turning right onto Great Eastern Highway had utilised Lyall Street and Matheson Road to enter the highway at Epsom Road.
Mr Philip Marks, current Mayor of the City of Belmont, gave evidence that he had previously lived in Matheson Road near the Lyall Street McDonald's Family Restaurant. While the traffic from McDonald's Family Restaurant had been quite bad prior to the commencement of the 24 hour operation, traffic problems afterwards went on all through the night and the early hours of the morning. In his view vehicles from McDonald's Family Restaurant tended to differ from local traffic, tended to travel faster, and drivers seemed to have no familiarity with the road network. There were also issues with litter which impacted on residential properties.
Mr Marks gave evidence that, following his election to Council, he received three to five telephone calls a week from residents who were concerned about the traffic. Eventually the Council took steps to have Lyall Street closed near Great Eastern Highway.
Ms Nore, the respondent's second witness from the Lyall Street area, submitted that the impact of the traffic from McDonald's Family Restaurant involved speeding, blaring radios, and reckless driving. These impacts, in her view, took a turn for the worse when McDonald's Family Restaurant began to operate 24 hours a day; after that the problems with traffic, litter and unruly behaviour went on all hours of the night and morning.

In addition, Ms Nore gave evidence that it was not uncommon for 'half a dozen carloads of kids travelling down Lyall Street to the river foreshore and eating their McDonald[']s and throwing their rubbish onto the ground'. She had found McDonald's Family Restaurant management unsympathetic and unreliable to deal with. The culdesac treatment of Lyall Street had resolved the problems.
Mr Watson, the respondent's third witness from the Lyall Street area, gave evidence that he had suffered regular disturbance prior to the culdesac treatment of Lyall Street associated with traffic, litter and unruly behaviour and petty vandalism. The vehicle problems generally occurred late at night and involved speeding, burnouts, horn blaring, amplified music, shouting and raucous behaviour. These problems have not been occurring since the culdesac was installed.

Weighing the evidence on potential impacts on amenity

In assessing whether the potential impacts on the amenity of the locality or the health, welfare and safety of its residents are acceptable, a number of matters need to be addressed:
•Increased traffic impacting on the locality during the day and early evening.
•Increased traffic impacting on the locality late at night and early in the morning.
•Potential impacts of late night noise as a result of vehicles using local roads to access the proposed development.
•Potential impacts of late night antisocial use of local amenities and Centenary Park.
•Potential impacts of litter on the locality.

Increased traffic impacting on the locality during the day and early evening

Increased traffic between Great Eastern Highway and the access point to the site on Daly Street will not impact on any residential uses, and ia considered acceptable. Increased total traffic flows on Daly Street north of Barker Street are estimated at 924 vehicles per day (VPD) (applicant) and 1,622 VPD (respondent). Given the predominantly commercial/industrial nature of this section of Daly Street, the fact that only two or three residences face this street, and that the capacity of this access road is 3,000 VPD, this impact is considered acceptable.
Evidence of total flows on Barker Street were within the range of 1,209 VPD to 1,296 VPD. Given the fact that this road services commercial/industrial uses to the north, and overall flows are well within the capacity of the road, such impacts are regarded as acceptable.
Projected total flows on Elmsfield Street are estimated to increase from 1025 VPD to 1380 VPD (applicant) and 997 VPD to 1296 VPD (respondent). These suggest overall increases of between 30% and 35% to levels that are, at most, 46% of the capacity of an access road. While figures were not provided for Daly Street south of Barker Street, logically, these figures could be higher than Elmsfield Street, reflecting trips by residents accessing Belgravia Estate. These increases could be offset by people stopping at the Centenary Park parking areas and leaving in a northern direction.
Ms Gillan gave evidence that Centenary Park was a regional park; while in a statutory sense the park is not reserved in the MRS, it clearly draws on a fairly broad catchment for both passive recreation and sporting events. In this context, and given the fact that the estimated flows were peak (Friday) flows, the projected flows on Daly Street (south of Barker Street) and Elmsfield Street during the day are regarded by the Tribunal as acceptable.

Increased traffic impacting on the locality late at night and early in the morning

The particular concern in regard to traffic generation was the potential impacts on the locality of late night and early morning traffic. Logically, these potential increases are likely to be higher on the weekends than during the week, and the Tribunal was provided evidence on projected flows from 10 pm on Friday night to 6 am on Saturday morning.
The estimates for Daly Street (north of Barker Street) were increases from an existing 27 vehicles to 83 vehicles (applicant) or 139 vehicles (respondent). For Barker Street, the estimates were from an existing 29 vehicles (applicant) to 40 or 52 vehicles (respondent), and for Elmsfield Street from an existing 57 vehicles (applicant) to 102 or 147 vehicles (respondent).
There are a number of ways of considering these impacts. The figures represent average increased flows of 5.6 to 11.2 vehicles per hour (VPH) for Daly Street, 1 to 2.3 VPH for Barker Street and 4.5 to 9 VPH for Elmsfield Street. Clearly they also represent substantial changes in terms of percentage increases over the existing flows which are generally very low.
In St Patrick's the Tribunal referred to a decision of the former Town Planning Appeal Tribunal in Gosatti Holding Pty Ltd v City of Fremantle (Appeal No 48 of 1999 delivered 17 March 2000) (Gosatti), where the former Tribunal further stated that:
… [I]t barely needs to be said that residential uses in close proximity to nonresidential uses cannot expect the same degree of amenity as would be found in a homogeneous residential suburb[.]
Given the close proximity of Great Eastern Highway, existing commercial/industrial uses to the north, the connected nature of the road network in the locality and, importantly, the link Daly Street and Elmsfield Street provides from Hardey Road to Great Eastern Highway, the Tribunal does not regard flows of this magnitude as unacceptable.

Potential impacts of late night noise as a result of vehicles using local roads to access the proposed development

The concern raised by locality witnesses was the impact of, what Dr Trigger expressed as attracting 'stranger traffic back into the area'.
Logically, such traffic either constitutes residents from adjoining residential areas accessing the proposed McDonald's Family Restaurant or customers travelling along Great Eastern Highway driving through local streets. Evidence provided to the Tribunal suggested that, while both were a concern, the potential impact of passing traffic was the more critical issue.
Mr Bordbar's evidence was that once the Uturn facilities are established on Great Eastern Highway, traffic on Great Eastern Highway eastbound does not need to use local streets. Mr Tan, on the other hand, formed the view that there was likely to be some 'rat run' traffic in spite of these Uturn facilities. Evidence was submitted that the availability of a Uturn facility had not resolved such issues at Lyall Street.
However, Mr Bordbar also suggested that the option of a Hungry Jack's on the northern side of Great Eastern Highway in close proximity to the subject site, or the McDonald's Family Restaurant at Lyall Street (to which the applicant would seek to erect a directional sign near the subject site) would mitigate 'rat runs' by eastbound traffic.
While the evidence provided was contradictory, the Tribunal can draw some tentative conclusions. As a matter of fact, it is not possible to establish that all passing traffic will use the Uturn facilities provided. The fact that alternative fast food facilities are available may, however, assist in reducing any such potential. Furthermore, the Uturn facilities at Belgravia Street and Hardey Street are far more substantive than the current facility on Lyall Street, and are further from the McDonald's facility, making the required lane changes to perform Uturns more easily effected, particularly at night.
Clearly, there is also, logically, a question of driver/customer education which could further assist in reducing the potential of 'rat runs'.
In this context the Tribunal is of the view that the likely impact of passing traffic using the local road network is an impact that should be able to be adequately managed within acceptable levels.

Potential impacts of late night antisocial use of local amenities and Centenary Park

In Woolworths Ltd and City of Joondalup [2009] WASAT 41 the Tribunal found at [75] that:
Naturally, in many cases such as the present one, residents' objections are based on an apprehension or fear of what may happen and those views are something which councils, when considering the matter, and this Tribunal on review, must try and balance on the evidence before it.
Evidence of late night antisocial behaviour in Centenary Park in the past was provided to the Tribunal. In addition, it is not unreasonable for residents to express concerns in regard to the current application based on issues associated with the McDonald's Family Restaurant facility in Lyall Street. Late night antisocial behaviour is, however, a broader community concern affecting many areas within metropolitan Perth, and, clearly, the potential exists for such behaviour in a park serving a broad catchment in close proximity to a major arterial highway.
However, the application under review was referred to the respondent's coordinator for crime prevention who, in liaison with the Belmont Police, reviewed incidents of antisocial behaviour in regard to fast food/takeaway outlets in the City. It was concluded that, based on the existing Abernethy Road and Lyall Street McDonald's Family Restaurant, there is currently no evidence to suggest that antisocial behaviour will increase with the proposed development.

Potential impacts of litter on the locality

Evidence was provided at the hearing that the litter patrol proposed by the applicant was likely to resolve potential litter impacts. It should, however, be noted that the parties did not agree on the area to be covered by the litter patrol.

Conditions

Of the 26 conditions submitted by the respondent in its without prejudice conditions, the applicant objected to conditions 2, 3 and 5 and sought amended wording on conditions 4 and 12.
The conditions to which the applicant objected read as follows:
…
2The hours of operation for the development are 6.00am to 10.00pm, 7 days a week. Any modification to these hours of operation will require the approval of the City of Belmont.
3The seating capacity of the proposed restaurant is not to exceed 121 seats.
…
5The operator of the fast food/takeaway outlet is to engage a private security officer to monitor the premises on Friday and Saturday nights after 9.00pm. The security officer is to be at the operator[']s cost.
The conditions which the applicant sought to amend read as follows:
…
4The operator of the fast food/take away outlet is to conduct a daily litter inspection and collection of the subject site and Centenary Park to the satisfaction of the City of Belmont.
…
12The footpath to Daly Street is to be reinstalled and upgraded where required to the satisfaction of the City's manager project development.
In regard to condition 12, it was agreed between the parties that the wording should be amended to read as follows:
The part of the footpath to Daly Street immediately adjacent to the subject site is to be reinstalled and upgraded to a standard consistent with footpaths in adjoining streets.

Condition 2

The applicant argued that a 24 hour operation was consistent with approvals for other fast food restaurants, and the proposed development was, importantly, on the route home for many people from Perth Airport. The applicant also advised that many of the McDonald's facilities in Perth operated a 24 hour drive through facility and a restriction of trading hours, as suggested, would not be acceptable.
The respondent submitted that, in any other circumstances, there would be little argument on opening hours. If, for example, the current proposal took access solely from Great Eastern Highway with no impact on local streets, the respondent would not have an issue.
Given the respondent's past problems with the Lyall Street McDonald's Family Restaurant, the City felt bound to take a view that the proposed premises should operate at hours that minimise the impacts on amenity. Should a 24 hour operation be problematic, the City and affected residents have no return. Should McDonald's obtain a restricted hours approval, it could, in future, apply for an extension supported by evidence on traffic and amenity impacts.
Evidence was provided that McDonald's is increasingly moving to 24 hour trading in its metropolitan outlets, and a number, generally located on arterial roads, already provide 24 hour service. In addition, Hungry Jack's on the northern side of Great Eastern Highway, in close proximity to the subject site, already provides 24 hour service.
The Tribunal does not consider that, in the context of the currently applicable planning instruments, the degree of impact on the amenity of the locality is such that it would warrant a restriction on trading hours.
Given the increasing trend to 24 hour trading generally, existing 24 hour facilities in proximity to the proposed facility, and a location on a major arterial road which serves to link the Perth CBD with Perth Airport and beyond, the Tribunal is of the view, therefore, that it would be unreasonable to limit the trading hours.

Condition 3

The respondent advised that this condition sought to mediate the potential impacts of the development by reducing the scale of the operation.
Given the fact that the reduction in seating of approximately 11% would neither reduce overall traffic impacts below the thresholds argued by the respondent in its submissions or, more importantly, would have no impact on late night or early morning traffic when the restaurant was closed, the Tribunal does not consider such a condition is warranted.

Condition 4

The applicant submitted that the litter plan provided in evidence had not been challenged during crossexamination in the hearing. On that basis the applicant argued that the area identified in that plan should stand. The respondent sought to extend the area covered by the litter plan to the southern end of Daly Street.
While the Tribunal believes that the extension of the area of the litter plan to cover all of Daly Street is an unjustifiable burden on the applicant, the fact that customers from the McDonald's Family Restaurant may well use the newly upgraded seating area in Centenary Park requires that the litter plan area is extended somewhat to cover this area.

Condition 5

Given that all the evidence provided by the respondent in this matter related to the offsite impacts of the proposed development, and security officers would have no jurisdiction beyond the subject site, this condition is not, in the Tribunal's view, appropriate.

Main Roads WA conditions

Under the instrument of delegation (PD Act) the application was referred to Main Roads WA for comment. Main Roads WA, in correspondence to the respondent dated 7 February 2012, advised that the application was acceptable subject to a number of conditions.
These matters were included by the respondent in its without prejudice draft conditions. No objection was raised by the applicant to these conditions.

Conclusion

The objective for the mixed use zone, established by cl 4.2 of LPS 15, is central to the assessment of the application under review.
From this, two issues arise:
1)Is the proposed use appropriate in this zone given the parameters for land uses established by the provisions of LPS 15?
2)Are the potential impacts on the amenity of the district or to the health, welfare and safety of its residents acceptable?
In regard to the use, the Tribunal found it was reasonable to conclude that the proposed use was appropriate in the mixed use zone in terms of the provisions of the Scheme.
In terms of the potential impacts, the Tribunal concluded that there will be impacts on the locality in terms of increased traffic flows. The impacts of increased traffic late at night or in the early morning are likely to be of most concern to residents. In addition, it is possible that such increased traffic flows could potentially result in occasional incidents of antisocial behaviour which have occurred in the area in the past.
While cognisant of the concerns expressed by residents, the Tribunal considers that the application warrants approval for the following reasons:
1)In St Patrick's the Tribunal cited the former Town Planning Appeal Tribunal in Gosatti, in which the former Tribunal stated that 'it barely needs to be said that residential uses in close proximity to nonresidential uses cannot expect the same degree of amenity as would be found in a homogeneous residential suburb'. The locality of the development the subject of the current review cannot be characterised as a homogeneous residential suburb.
2)Given the close proximity of Great Eastern Highway, existing commercial/industrial uses to the north, the connected nature of the road network in the locality, and, importantly, the link Daly Street and Elmsfield Street provides from Hardey Road to Great Eastern Highway and the broad catchment for Centenary Park, the Tribunal does not regard the projected flows on the local road network as unacceptable.
3)It should also be recognised that the planning of the regional arterial road network by Main Roads WA, which restricts direct access to such roads, and the increased installation of median strips, will inevitably put increased pressure on local networks in close proximity to such arterial roads. In this case, flows on the local network will be further increased should the respondent's intentions for increased residential densities be achieved.
4)The provision of Uturn facilities at Hardey Road and Belgravia Street as part of the upgrading of Great Eastern Highway will assist in limiting the impact of eastbound traffic on the local road network.
5)Given the increasing trend to 24 hour trading generally, existing 24 hour facilities in proximity to the proposed facility, and a location on a major arterial road which serves to link the Perth CBD with Perth Airport and beyond, the Tribunal is of the view that it would not be reasonable to limit the trading hours.
The respondent in this matter drew heavily on issues it submitted were associated with the operation of the McDonald's Family Restaurant at Lyall Street, and the concerns expressed by residents of Belgravia Estate in regard to the current proposal. In this regard, the Tribunal observes that, neither since the initiation of 24 hour trading by McDonald's in Lyall Street in 2005, nor during the development of the former Western Power depot in Daly Street as Belgravia Estate or in the development of LPS 15, had any substantive review of the planning instruments applicable to the mixed use zone been effected.

Orders

The Tribunal makes the following orders:
1.The decision by the City of Belmont on 6 July 2011 to refuse to grant development approval for the development of a McDonald's Family Restaurant at No 235 (Lot 19) Great Eastern Highway, Belmont is dismissed.
2.Planning consent for the development of a McDonald's Family Restaurant and associated signage at No 235 (Lot 19) Great Eastern Highway, Belmont in accordance with plans DA 01 to DA 09 and S1 to S5 dated January/February 2011 prepared by Hindley and Associates, is granted under the Metropolitan Region Scheme and City of Belmont Town Planning Scheme No 15 subject to the following conditions:
(a)The stamped and dated plans, together with any requirements detailed thereon by the City of Belmont, shall form part of the planning approval issued in respect of the application referred to in this approval.
(b)The operator of the fast food/take away outlet is to conduct a daily litter inspection and collection. This inspection and collection shall cover the subject site, the area identified in the Litter Patrol Toolkit and the recently ungraded seating/recreation area between the playing field and the lake in Centenary Park to the satisfaction of the City of Belmont.
(c)Prior to occupation or use of the development, vehicle parking, manoeuvring and circulation areas shall be designed, constructed, sealed, line marked and kerbed in accordance with:
(i)the approved plan (52 spaces measuring 2.5 metres by 5.5 metres and two spaces complying with the Disability Access provisions of the Building Code of Australia);
(ii)Schedule 11 of the City of Belmont Local Planning Scheme No. 15; and
(iii)the City of Belmont Engineering Requirements and Design Guidelines with respect to drainage requirements.
The areas must be paved in bitumen or concrete in accordance with the City of Belmont specifications, unless otherwise approved by the City's Director Technical Services. All parking bays must be clearly line marked.
(d)Prior to occupation or use of the development, vehicle crossovers shall be approved by the City of Belmont Technical Services and be constructed in coloured concrete, brick paving or hot mix in accordance with the City of Belmont specifications for the construction of concrete, brick or hot mix paved crossovers for industrial and commercial properties.
(e)The redundant crossovers to Lot 732 as shown on the approved plans shall be removed and the verge and kerb reinstated in accordance with the City's technical specifications for crossovers to the satisfaction of the City's Project/Development Engineer.
(f)All accessways, parking areas and hardstand areas shall be maintained in accordance with the City of Belmont Engineering Requirements and Design Guidelines.
(g)In order to facilitate and coordinate the orderly movement of vehicular traffic associated with future development abutting Great Eastern Highway, an easement in gross is to be granted, free of cost, to the City of Belmont as a public access easement in the location/s marked in 'RED' on the approved plans. The easement documentation is to be prepared by the City's solicitors at the applicant's/owner's full expense, and registered on the certificate of title for the land prior to issue of a building licence or application for a building permit.
(h)Prior to the occupation of the development or commencement of the use, the part of Lot 716 the subject of any access easement shall be paved, kerbed and drained in accordance with City of Belmont Engineering Requirements and Design Guidelines, and thereafter maintained to a standard satisfactory to the City's Director Technical Services. Any construction and maintenance costs are to be borne by the owner. The maintenance obligation is to be stated in the grant of easement documentation.
(i)The part of the footpath to Daly Street immediately adjacent to the subject site is to be reinstalled and upgraded to a standard consistent with footpaths in adjoining streets.
(j)No loading or unloading of vehicles is to occur that interferes with the parking of vehicles in the carpark by visitors and employees. All bays in the carpark are to be made available at all times for the parking of vehicles by visitors and employees.
(k)All stormwater from roofed and paved areas shall be collected and disposed of onsite in accordance with the City of Belmont Engineering Requirements and Design Guidelines.
(l)All existing buildings and structures on the lots, including soakwells and septic tanks, shall be removed and the land levelled. The work that is the subject of this condition must be approved by the City of Belmont prior to an application being made for a building licence/permit.
(m)All storage is to occur within the building. The storage of equipment, materials and stock outside the building is not permitted.
(n)No fencing and walls forward of the building line, up to and including a front lot boundary, are permitted unless a separate planning approval is granted by Council.
(o)If any lighting is installed on the building, yard areas or carparking areas, all illumination shall be confined within the property boundaries to the satisfaction of the City's Manager Health and Ranger Services.
(p)No earthworks shall encroach onto the Great Eastern Highway reserve.
(q)No stormwater drainage shall be discharged onto the Great Eastern Highway reserve.
(r)No vehicle access shall be permitted onto Great Eastern Highway.
(s)The proposed pylon sign is not to overhang into the Great Eastern Highway road reservation.
(t)Illuminated signage is not to exceed 300 dc per square metre and is not permitted to flash, chase or pulsate.
(u)Signage is not to contain fluorescent, reflective or retro reflective colours or materials.
(v)A landscaping and reticulation plan is to be prepared by a professional horticulturist or a qualified landscape contractor for the subject development site and street verge, and submitted to the City of Belmont for approval prior to the issue of a building licence, unless otherwise agreed to by the City in writing.
(w)Landscaping, plants and reticulation are to be installed and thereafter maintained in accordance with the approved landscaping and reticulation plan for the duration of the approved development to the satisfaction of the City's Manager Parks and Environment.

I certify that this and the preceding [144] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P DE VILLIERS, SENIOR SESSIONAL MEMBER

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MCDONALD'S AUSTRALIA LIMITED and CITY OF BELMONT [2012] WASAT 42 (S)

MEMBER: MR P McNAB (SENIOR MEMBER)

HEARD: 8 MAY 2012

DELIVERED : 7 SEPTEMBER 2012

PUBLISHED : 15 APRIL 2013

FILE NO/S: DR 265 of 2011

BETWEEN: MCDONALD'S AUSTRALIA LIMITED
Applicant
AND
CITY OF BELMONT
Respondent

Catchwords:

Costs - Town planning - Development application - Application for costs by successful applicant - Fast food outlet on major highway - Amenity concerns of local objectors - Local government vigorously contesting matter in Tribunal - Whether local government's conduct reasonable - Applicant had strong case on zoning and other matters -Whether local government's conduct in not settling matter reasonable - Whether local government's conduct in testing amenity issues (litter, traffic and alleged antisocial behaviour) reasonable - Whether local government's officers lacked impartiality - Tribunal finding no unreasonable behaviour by local government - Weak case insufficient to attract costs order - Tribunal declining to permit rearguing of matters dealt with in review under guise of costs application - Criticism by Tribunal of length of hearing - Criticism by Tribunal of applicant's relentless crossexamination of some witnesses - Discussion by Tribunal of nature of planning reviews - Costs application refused

Legislation:

Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(4)(b)

Result:

Applicant's costs application refused

Summary of Tribunal's decision:

The successful applicant in the principal case (McDonald's Australia Ltd and City of Belmont [2012] WASAT 42) sought costs from the respondent City mainly on the basis that, having regard to the strength of the applicant's case, the respondent had failed to deal with the matter in an objective and rational way (including failing to accept certain offers made in mediation).
In particular, it was alleged that the respondent City of Belmont had allowed itself to be overly influenced by certain objectors who lived in the locality of the proposed fast food outlet. The respondent also alleged that the City of Belmont's expert witnesses had not been impartial.
The Tribunal agreed with the applicant that the respondent had a generally weak case given matters such as the zoning, the existence of other fast food outlets on the relevant highway, and the distance from the highway to where the main objectors lived. However, the particular matters raised by the City of Belmont as amenity concerns were nevertheless considered by the Tribunal in the review; it could not be said that they were devoid of any substance.
In any case, the Tribunal declined to go behind, reopen or revisit matters decided by the Tribunal in the principal case noting that, in respect of the City of Belmont's experts, they were not the subject of any relevant discussion by the senior sessional member who heard the matter; still less did the Tribunal make any adverse findings against these witnesses.
The Tribunal was critical of both the length of the hearing, given the actual issues involved, and the 'sometimes relentless forensic cross-examination' of some of the witnesses by the applicant's counsel. Such conduct was unnecessary in these types of cases and was to be 'firmly discouraged' in what was 'a relatively straightforward, if strongly fought, planning case'. Accordingly, this conduct was a further basis for declining the application for costs.
The Tribunal gave its reasons for decision orally.

Category: B

Representation:

Counsel:

Applicant: Mr M Zilko SC with Ms L Rowley
Respondent: Mr D McLeod

Solicitors:

Applicant: Norton Rose Australia
Respondent: McLeods

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

McDonald's Australia Ltd and City of Belmont [2012] WASAT 42
Medical Board and Kyi [2009] WASAT 22

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is a costs application brought by the successful applicant in McDonald's Australia Ltd and City of Belmont [2012] WASAT 42 (McDonald's) where the Tribunal gave conditional approval for a fast food outlet, notwithstanding apparently significant community opposition on various amenity grounds ‑ opposition which was in turn, at least in part, reflected in the City's rejection of the proposal.
The principal basis for the costs application is the respondent's alleged failure to objectively assess the applicant's case on planning grounds and to respond appropriately to related offers to settle made by the applicant. The claim for costs has been strongly resisted by the respondent. Both parties have been legally represented, by senior counsel in the case of the applicant.
These reasons should be read, of course, consistently with the principal reasons of Senior Sessional Member Mr Patric de Villiers in McDonald's.
I have had the benefit of both written submissions and extensive oral argument on the issues relating to costs; however, the factual framework for the making of costs orders (if any) must, in large measure, be governed by the comprehensive and extensive reasons of the senior sessional member in the principal case.
For the reasons that follow, the Tribunal has refused the applicant's application for costs.
The Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.

Applicant's case for costs

The applicant's case for costs is brought under three broad headings:
1)It is alleged that the respondent failed to arrive at a 'reasonable, objective' decision, based on town planning principles.
2)It is also alleged that the respondent, in effect, unreasonably failed to respond to compromise offers made by the applicant.
3)It is also alleged that the respondent's experts failed to present, in effect, impartial expert evidence.
As I understand the applicant's case, if these matters are established either singly or collectively then they, or any of them, would warrant a costs order in the applicant's favour. I will return to consider these and other arguments, below.

Costs principles

The starting point in respect of costs is, of course, s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which provides as follows:
Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
The enabling Act, the Planning and Development Act 2005 (WA), does not prescribe any other costs regime. Also relevant is s 87(4)(b) of the SAT Act, which provides as follows:
Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to
…
(b)whether the party (being the decisionmaker) genuinely attempted to make a decision on its merits.
With gratitude, I rely on the recently published authoritative commentary by Judge David Parry and Dr Bertus de Villiers of this Tribunal entitled Guide to Proceedings in the Western Australian State Administrative Tribunal (Lawbook Co Thomson Reuters, 2012) (Guide to Proceedings): see chapter 17, which deals with costs.
The Guide to Proceedings, at para 1701, says:
Section 87(1) of the SAT Act provides that, unless otherwise specified in that Act, the enabling Act or an order of the Tribunal under s 87, parties bear their own costs in Tribunal proceedings. It is apparent from the terms of this section that the starting proposition in the Tribunal is that parties bear their own costs in proceedings. However, s 87(2) of the SAT Act confers discretion … Sections 87(1) and 87(2) of the SAT Act together indicate there is a presumption that there will not be an award of costs in the Tribunal except in special circumstances. This presumption is desirable because it promotes access to civil and administrative justice through the Tribunal. SAT can therefore be characterised as a generally 'no costs' or 'cost neutral' jurisdiction.
The other publication dealing with the practice and procedure of the Tribunal (The State Administrative Tribunal of WA Law Practice and Procedure edited by Mr Michael Hardy and published by Presidian in 2008) describes the cost position in similar terms, but summarises the situation for a successful award of costs as needing 'exceptional' circumstances. Thus, at para 2‑2669, the learned authors say:
The approach taken by the tribunal to the award of costs in its review jurisdiction is that there must be some exceptional reason for ordering that the party pay the costs of another.
The Guide to Proceedings, at para 1701, endorses the following quote from Medical Board and Kyi [2009] WASAT 22:
If a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable and no reasonable person would have believed they could be successful.
Further, at para 1702, the Guide to Proceedings says:
The making of a costs application in relation to review proceedings which concern a genuine dispute as to planning merit normally involves unreasonable conduct warranting an order that the applicant for costs compensate the other party or parties for having had to defend the costs application.
Finally, at para 1712, the Guide to Proceedings notes that:
While not expressly recognised by the SAT Rules, an offer to settle review proceedings may be relevant to the exercise of discretion as to costs. For example, an offer to settle 'may bear on the general question of whether the decisionmaker "genuinely attempted" to make a decision on its merits or unreasonably maintained its position in review proceedings having regard to the substantial merits of the case as it may have developed'.

The principal reasons

Senior Sessional Member de Villiers conducted, in my view, a very thorough and detailed review of the issues in this case, resulting in a 32‑page decision covering the three days of the hearing in the matter. The length of the hearing is a matter to which I will return below.
The issues included the 'catchment' area of the locality; how the existing amenity of the relevant locality was to be determined, and how traffic and litter problems were to be dealt with. I should record that traffic flows and their impact occupied many pages of analysis by the Tribunal. In addition, some of the amenity concerns raised had an objective basis in broadly analogous matters; for example, traffic flows from both past and present nearby fast food outlets.
Although the applicant was overwhelmingly successful in the review, there were at least three specific observations by the senior sessional member which are worth noting, as they support, in part, the respondent's opposition to both the development and consequently they are also relevant to the costs application.
At [107], Senior Sessional Member de Villiers said, referring to traffic flows:
Clearly they also represent substantial changes in terms of percentage increases over the existing flows which are generally very low.
At [118], talking about antisocial behaviour, the senior sessional member said:
In addition, it is not unreasonable for residents to express concerns in regard to the current application based upon issues associated with the McDonald's family restaurant facility in Lyall Street.
Relatedly, at [141], in terms of potential traffic impacts, the senior sessional member observed:
In addition, it is possible that such increased traffic flows could potentially result in occasional incidents of antisocial behaviour that have occurred in the area in the past.
Of course, none of these things, when the senior sessional member considered the case as a whole, warranted refusal of the applicant's development. And, I make it clear that I do not intend going behind, revisiting or 'deconstructing' these findings or observations.
Turning generally to the nature of the case, I should say that, in my view, this case resembles dozens of other cases in the Tribunal where significant community opposition has, unsurprisingly, when ventilated and tested, been found wanting in a more formal setting than a local government council chamber. It is also true that, generally speaking, some neighbours tend to unconsciously exaggerate amenity and safety concerns, as the Police evidence in the case discussed by the senior sessional member suggests. But this case was, as I have indicated, more than just these concerns.
Importantly, in Senior Sessional Member de Villiers' careful consideration of the matter, there is not the slightest suggestion by him that the respondent's case was, either on an individual point or collectively, so lacking in purpose, evidence or substance as to warrant special attention, observation or criticism by him.

Discussion of the applicant's case for costs

The gravamen of the first charge is that the respondent allowed itself to be diverted from the objectively reasonable case the applicant was presenting by focusing unnecessarily on the nearby Belgravia residential estate, to the disadvantage of the applicant.
The respondent denies this, saying that it acknowledged its officers' reports which, in any case, were properly premised on Belgravia's status; alleged problems elsewhere with McDonald's stores on Great Eastern Highway, and significant community opposition to the development. These matters essentially relate to the nature of the planning case before the Tribunal and I will return to that matter in more detail below.
On the second charge, respecting the alleged failure to properly respond to offers to compromise, the respondent says that it participated in mediation and says that it was the first party to offer a settlement based upon restricted hours of operation. In the event, the applicant was more successful than what has been suggested by either party, as the Tribunal did not impose any limitation of trading hours: see McDonald's, at [143]. As has been seen, costs principles in the Tribunal may extend to consideration of offers to settle.
It seems to me that the trading hours restrictions, including the issue of whether they should be imposed at all, could have significantly impacted upon other alleged amenity issues in the case. Thus, having regard to the nature of the case argued and to the issues and concerns addressed by the senior sessional member, the respondent's position on restricting trading hours could not be said, in my view, to have been unreasonable conduct or to have been wantonly pursued. I include in this finding the rejection of counter-offers made by the applicant.
I entirely agree that every effort should be made, in planning cases in particular, to reach a compromise and to settle matters both within and without mediation. However, a respondent local government should not be at risk of an adverse costs order for ultimately maintaining its position where an argument (here, on trading hours) is both central to its amenity case and where it turns out to be a matter closely connected with other issues in the case.
The third charge levelled by the applicant against the respondent, which the applicant says warrants a costs order in its favour, refers to alleged bias and the allegedly deliberate modification of, or collusion with respect to, the evidence of certain expert officers of the respondent, namely, Mr Tan and Ms Gillan. Extensive cross‑examination of these officers took place in the hearing and I was taken to some of that material. The arguments were revisited at length in the costs hearing before me.
Again, I am not attracted to conducting a forensic examination, or perhaps a forensic re‑examination, of these issues in the context of, or under the guise of, a costs application. For a start, they were not the subject of any discussion by the senior sessional member. Still less did Mr de Villiers make any adverse findings against these witnesses. At its simplest ‑ and perhaps this is speaking very broadly ‑ they were disagreements of opinion, emphasis and explanation, and the issues were resolved in the review in the normal manner after the senior sessional member heard all of the evidence from all of the experts.
Having read something about these exchanges from the case and having also read the accompanying correspondence, I have to say that, in my experience, such intense exchanges are, thankfully, relatively rare in review matters involving planning issues. I will return in a moment to the nature of review proceedings generally and how review proceedings are usually conducted in the Tribunal.

Relative strengths of the parties' cases

It is appropriate, I think, that I say something about the relative strengths and weaknesses of the respective cases. Generally speaking, I think the respondent's case was weak. This is so for the following reasons.
First, this type of development was a permitted or possible use with approval. Secondly, there was the nature of the highway environment, including the existence of the other fast food outlets in the locality. Thirdly, there was the relatively lengthy distance from the proposed outlet to where the majority of the objecting neighbours resided. Accordingly, I accept Mr Zilko's submission that the applicant had a reasonably strong case for an approval.
However, such characterisations do not, of themselves, justify departure from the statutory position that, in the ordinary course, parties bear their own costs. Much more would be needed to justify a departure from that position.
The relative strength of the applicant's case makes my next observations all the more telling. I have to say that the flavour of some of the cross‑examination by senior counsel for the applicant seems to me to run counter to the nature of review proceedings in an administrative tribunal such as this Tribunal. No doubt the applicant has to run its case as it sees fit, but the sometimes relentless forensic cross‑examination of some witnesses (see, for example, T:5254; 17.01.12) is, I think, to be firmly discouraged for what is, in truth, a relatively straightforward, if strongly fought, planning case.
These are not original proceedings in the Tribunal; they are de novo review proceedings. There is no jury to convince. The proceedings require main attention to matters of planning law, planning principle and planning practice.
Witnesses in such matters are rarely sworn in and the points of disagreement about alleged misconceptions or errors such as the witnesses might have made in their observations, practices or opinions should, in my view, be dealt with expeditiously. Thus, I think a three‑day hearing, having regard to all of the material, seems to me to have been out of proportion to the actual issues involved.
I make these very general observations about the course of proceedings because I believe they are relevant in themselves and also to the exercise of any discretion as to costs, particularly in a 'costs neutral' forum that has statutory objectives requiring attention, amongst other matters, to the efficient despatch and determination of planning and other review matters. Minimising costs to the State and to the parties can be said to be an unstated premise of the Tribunal's exercise of jurisdiction. Accordingly, even if I were minded to award costs against the respondent (which I am not, for the reasons that I have already advanced), I would balance that conduct against the applicant's conduct in the proceedings. It is unnecessary to say any more on this topic.

Conclusions

Although the respondent would, it seems to me, always have had a difficult task in justifying a refusal in a mixed area with a proposed use of this nature (and where development was on a very busy highway and where residential amenity impact was always likely to be based more, perhaps, on perception rather than reality), none of these conclusions mean that the respondent's vigorous opposition to the proposed development could be said to be unreasonable or relevantly disproportionate to the proper advocacy of the amenity interests of the ratepayers such as would be sufficient to attract a costs order against the local authority.
And, even if some of the respondent's evidence was found to be wanting, there is nothing to suggest that it was given other than in good faith and for the purposes of advancing what was ultimately still a planning case about amenity impacts, however weak that case ultimately turned out to be.
On the authorities that I have referred to above and in the circumstances outlined, there is no proper basis to award costs against the respondent local government. Costs will therefore be refused.

Orders

For the reasons given above, the orders of the Tribunal are:
1.The applicant's application for costs is refused.
2.Subject to paragraph 3 of these orders, there is no order as to costs.
3.The operation of paragraph 2 of these orders is suspended for seven days.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, SENIOR MEMBER