McDONALD'S AUSTRALIA LIMITED and CITY OF GOSNELLS
[2012] WASAT 196
•27 SEPTEMBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: McDONALD'S AUSTRALIA LIMITED and CITY OF GOSNELLS [2012] WASAT 196
MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
HEARD: 22 AND 24 AUGUST 2012
DELIVERED : 27 SEPTEMBER 2012
FILE NO/S: DR 108 of 2012
BETWEEN: McDONALD'S AUSTRALIA LIMITED
Applicant
AND
CITY OF GOSNELLS
Respondent
Catchwords:
Town planning - Fast food/takeaway outlet - McDonald's - Conditions - Hours of operation - Signage - Residential development in locality - Amenity impacts - Noise impacts - Potential antisocial behaviour - Character of activity centre - Restriction of trading hours in district level activity centre in a District Centre zone
Legislation:
City of Gosnells Town Planning Scheme No 6, cl 1.6, cl 4.2, cl 4.3.2, cl 10.4, cl 11.2, cl 11.3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Result:
Application for review of condition addressing hours of operation was dismissed
Respondent's condition on signage was amended to reflect conditions on signage agreed between parties
These proceedings initially involved an application for the review of two conditions attached to a decision by the City of Gosnells to approve the development of a McDonald's family restaurant at No 95 (Lot 8) Forest Lakes Drive, Thornlie. These conditions pertained to hours of operation and signage.
However, at the time of the final hearing the parties agreed on amended conditions in regard to signage, leaving the hours of operation as the only matter to be determined by the Tribunal.
During the hearing the issues raised by the parties were subject to discussion and the matter proceeded on the basis that the central issues were:
• whether the use of the land for extended restaurant hours would result in adverse amenity impacts;
• whether the application is compliant with the intended character of the activity centre; and
• whether it is appropriate for the trading hours of businesses to be restricted within an identified district level activity centre and District Centre zone?
In regard to amenity, the Tribunal found that the impacts of noise from the carpark and possible antisocial behaviour associated with McDonald's restaurant trading after midnight, particularly, when read against likely background noise levels in the locality at those times, were likely to generate unreasonable impacts on residential amenity.
In assessing the intended character of the activity centre, the Tribunal took the view that, in the context of an activity centre which was atypically located in a residential neighbourhood, remote from arterial roads, and poorly severed by public transport, the location of a 24 hour restaurant clearly raised issues which needed to be assessed on their planning merits. The Tribunal therefore determined that it could not assume that the application under review was compliant with the intended character of the activity centre.
On the issue of whether it was appropriate to restrict the hours of business within an activity centre within a District Centre zone, the Tribunal noted that the respondent had, in the past, applied conditions restricting the hours of operation of a fast food outlet (Subway) in this centre. In responding to the application the subject of this review, the City of Gosnells had sought to apply very specific conditions relating to hours of operation, presumably based on a merits assessment of the circumstances of the case. Nothing that emerged from the hearing provided an evidentiary basis to challenge that determination.
For these reasons the application for the review of the condition addressing hours of operation was dismissed. The City of Gosnells' original condition on signage was amended to reflect the conditions on signage agreed between the parties.
Category: B
Representation:
Counsel:
Applicant: Mr M Zilko SC and Ms K George
Respondent: Mr S Allerding (Acting as Agent)
Solicitors:
Applicant: Norton Rose
Respondent: Allerding & Associates
Case(s) referred to in decision(s):
Gosatti Holding Pty Ltd v City of Fremantle (Appeal No 48 of 1999, delivered 17 March 2000)
McDonald's Australia Ltd and City of Belmont [2012] WASAT 42
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR WA 296
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
These proceedings initially involved an application for the review of two conditions attached to a decision by the City of Gosnells to approve the development of a McDonald's family restaurant at No 95 (Lot 8) Forest Lakes Drive, Thornlie. These conditions pertained to hours of operation and signage.
However, at the time of the final hearing the parties agreed on amended conditions in regard to signage, leaving the hours of operation as the only matter to be determined by the Tribunal.
During the hearing the issues raised by the parties were subject to discussion and the matter proceeded on the basis that the central issues were:
•whether the use of the land for extended restaurant hours would result in adverse amenity impacts;
•whether the application is compliant with the intended character of the activity centre; and
•whether it is appropriate for the trading hours of businesses to be restricted within an identified district level activity centre and District Centre zone.
In regard to amenity, the Tribunal found that the impacts of noise from the carpark and possible antisocial behaviour associated with McDonald's restaurant trading after midnight, particularly, when read against likely background noise levels in the locality at those times, were likely to generate unreasonable impacts on residential amenity.
In assessing the intended character of the activity centre, the Tribunal took the view that, in the context of an activity centre which was atypically located in a residential neighbourhood, remote from arterial roads, and poorly served by public transport, the location of a 24 hour restaurant clearly raised issues which needed to be assessed on their planning merits. The Tribunal therefore determined that it could not assume that the application under review was compliant with the intended character of the activity centre.
On the issue of whether it was appropriate to restrict the hours of business within an activity centre within a District Centre zone, the Tribunal noted that the respondent had, in the past, applied conditions restricting the hours of operation of a fast food outlet (Subway) in this centre. In responding to the application the subject of this review, the City of Gosnells had sought to apply very specific conditions relating to hours of operation, presumably based on a merits assessment of the circumstances of the case. Nothing that emerged from the hearing provided an evidentiary basis to challenge that determination.
For these reasons the application for the review of the condition addressing hours of operation was dismissed. The City of Gosnells' original condition on signage was amended to reflect the conditions on signage agreed between the parties.
Introduction
These proceedings involve an application brought by McDonald's Australia Limited (applicant, McDonald's or McDonald's Restaurant) under s 252(1) of the Planning and Development Act 2005 (WA) for review of two conditions attached to the decision of the City of Gosnells (respondent, City or Council) under the City of Gosnells Town Planning Scheme No 6 (TPS 6 or Scheme) to approve the development of a McDonald'srestaurant at No 95 (Lot 8) Forest Lakes Drive, Thornlie (subject site).
The site, which is on the corner of Forest Lakes Drive, OvensRoad and MurdochRoad in Thornlie, forms part of the ForestLakes DistrictCentre.
At the ordinary council meeting held on 13 March 2012 the City approved the development, subject to a range of conditions which included the following:
An amended signage plan is to be submitted prior to the issue of a building licence to indicate
(a)the proposed direction signage being setback a minimum of 2m from the boundary of the subject site and reduced in size so that the dimensions of the signage do not exceed 1.2m in height and 0.6m in width.
(b)the proposed horizontal signage elements being modified so as to conform with the City's Signage and Flags Policy.
…
Hours of trading within the restaurant are to be restricted to:
•Sunday to Friday 6am to 11pm
•Saturday 6am to 2am Sunday
with the drive-thru permitted to operate 24 hours a day.
The applicant subsequently made application to the Tribunal for a review of these two conditions. At the time of the final hearing the parties agreed on amended conditions in regard to signage, leaving the hours of operation as the only matter to be determined by the Tribunal.
Site and locality
The subject site at No95 (Lot 8) Forest Lakes Drive, Thornlie, is located on the corner of Forest Lakes Drive, Ovens Road and Murdoch Road. The lot has an area of 2,384 square metres and is of an irregular shape. The site was formerly occupied by a service station and the construction of the approved development is currently in its early stages.
Each of the three roads abutting the site is classified as a District Distributor (B) road under the Perth Metropolitan Area Functional Road Hierarchy established by Main Roads Western Australia. Access to the site will be provided from a private road located primarily on the adjoining Part Lot 11. An easement over this road will ensure ongoing access is maintained to the subject site. This road runs northsouth with crossovers to both Forest Lakes Drive and Murdoch Road.
Forest Lakes Drive, which runs in a southwesterly direction to Garden Street and in a southeasterly direction to Warton Road from the subject site, carries approximately 6,350 vehicles per regular weekday. Ovens Road runs in a northeasterly direction to Spencer Road and carries approximately 4,950 vehicles per regular weekday. Murdoch Drive runs in a northwesterly direction to Yale Road from the subject site and carries approximately 6,200 vehicles per regular weekday.
The subject site forms part of the Forest Lakes District Centre. This centre is characterised in the respondent's Draft Activity Centre Planning Strategy as a 'big box' style commercial centre, surrounded by a large area of carparking. There are a number of vacant lots earmarked for further commercial or mixed use development. The major component of the centre is the shopping centre but it includes the Don Russell Performing Arts Centre (Arts Centre) and the Lakers Tavern (Tavern) which is approximately 40 metres northwest of the subject site. More recently, development has occurred on the site to the west of the subject site at No 97 Forest Lakes Drive (Lot 107). This has included a Jetts fitness centre, a Subway outlet and a small retail outlet. The Forest Lakes District Centre is served by the No 212 bus route along Forest Lakes Drive which links with Thornlie Train Station and the No 223 bus route.
To the north and east of the site, on the opposite side of Murdoch Road, are a number of single storey residences. These dwellings take access from Hampton Court and have rear fences on their Murdoch Road boundaries. The closest two houses are 42 metres and 48 metres respectively from the approved carpark. The residence on the corner of Murdoch Road and Ovens Road is shielded to some degree by an existing stone wall and electrical substation on the Murdoch Road boundary of the approved development. These lots are zoned R20/R40 which could generate an average of an additional dwelling per lot. To the east of the site, across Ovens Road, is a grouped housing development. This development takes access from Chesterton Drive with a solid wall to Ovens Road and a somewhat more permeable fencing condition facing Forest Lakes Drive.
To the south of Forest Lakes Drive, two residences to the west of the subject site face the recent Jetts and Subway developments immediately across the road. The closest residence is 36 metres from the approved carpark. Further residences which face the site are set back approximately 150 metres from the subject site on Water Edge Road to the south of the lake fronting Forest Lakes Drive.
The approved development
The development currently being undertaken on the subject site comprises a McDonald's fast food/takeaway restaurant.
The structure, which comprises approximately 515 square metres including a 67 square metre alfresco dining area, is located on the eastern portion of the subject site, close to the Ovens Road boundary, with a 20 bay parking area located on the western side between the building and the private access road. The drive through facility is located on the eastern side with a one way access arrangement entered on the northern side of the building and operating in a clockwise direction.
The western edge of the development, which faces the carpark, comprises a corral (refuse bin area), an external roofed play area with a partial height glazed screen to the west, a party room with a window facing the carpark and the main entry and external alfresco terrace, also with a partial height glazed screen to the west. Glazed areas provide views from the interior of the restaurant into both the play area and the party room. The entry wall is fully glazed.
There is no direct line of sight from the sales and service area to the carpark. Partial views of the southern section of the carpark are possible from the McCafé serving area. A full closed circuit television (CCTV) system will be installed covering all of the carpark which will be lit at night.
Planning framework
The site is zoned Urban under the Metropolitan Region Scheme. The Forest Lakes District Centre is designated as District Centre under State Planning Policy No 4.2 'Activity Centres for Perth and Peel' (SPP 4.2).
SPP 4.2 identifies activity centres as community focal points. The policy recognises that they may vary in size and diversity, and suggests they are designed to be well serviced by public transport.
SPP 4.2 establishes a hierarchy of activity centres and Table 3 sets out typical characteristics and performance targets for the various centre designations in the hierarchy. These establish the following for district centres:
District centres have a greater focus on servicing the daily and weekly needs of residents. Their relatively smaller scale catchment enables them to have greater local community focus and provide services, facilities and job opportunities that reflect the particular needs of their catchments[.]
Clause 5.2.1(4) of SPP 4.2 requires that:
Land uses that generate activity outside normal business hours (eg hospitality and entertainment, community facilities, gymnasiums) should be located in activity centres to generate additional evening and weekend activity and to take advantage of shared use of facilities such as carparking and public transport. …
Clause 5.4 of SPP 4.2 suggests district centres should incorporate a network of streets and public spaces as principal elements and should consider a well formed structure consisting of small walkable blocks to improve accessibility and buildings which address streets and public spaces to promote vitality and encourage natural surveillance.
Clause 6.4 of SPP 4.2 requires structure plans to be developed for activity centres.
Clause 6(2) of SPP 4.2 requires that responsible authorities should not support development proposals that are likely to unreasonably affect the amenity of the locality through traffic or other impacts. Appendix 2, which sets out 'Model Centre Frameworks' in cl 7, offers suggestions for statutory planning tools to support the delivery of an activity centre structure plan. This includes the use of conditions to 'proactively manage the impacts of development'.
The Designing Out Crime Planning Guidelines (Guidelines) were published by the Western Australian Planning Commission in 2006. The Guidelines are, from a local government perspective, advisory. They identify passive surveillance as one of five design and usage concepts on which design out crime principles could be based. The Guidelines encourage clear sightlines to public realm spaces from adjacent buildings.
The subject site is zoned District Centre under TPS 6.
Clause 1.6 of TPS 6 sets out the aims of the Scheme which include:
…
(g)To ensure the use and development of land does not result in significant adverse impacts on the physical and social environment.
Clause 4.2 of TPS 6 establishes objectives for the various zones and sets out the following objective for the District Centre zone:
To provide for weekly shopping needs, local offices, health, welfare and community facilities, consistent with the district-serving role of the centre.
The approved McDonald's development falls under the category of Fast Food Outlet under the provisions of TPS 6 and this constitutes a 'D' use which, under the provisions of cl 4.3.2, means that the use is not permitted unless the local government has exercised its discretion by granting planning approval.
Clause 10.4 of TPS 6 makes provision for the advertising of applications while cl 11.2 sets out matters to which the respondent shall have regard in assessing development applications. These provisions include the following:
…
(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;
(o)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
…
(y)any relevant submissions received on the application;
…
(za)any other planning consideration the local government considers relevant.
Clause 11.3 of TPS 6 establishes powers for the respondent to apply conditions in determining an application for planning approval.
The issues
The issues submitted by the respondent in relation to the review of extended restaurant hours were as follows:
1)Is the development and use of the land for extended restaurant hours capable of inappropriately affecting the current and likely future amenity of residential land near the subject land?
2)Will the use of the land for extended restaurant hours result in undue and adverse amenity impacts associated with noise, traffic or other factors?
3)Is the design of the facility conducive to accommodating the use of the land for extended restaurant hours?
4)Would it be consistent with orderly and proper planning to grant approval to extended restaurant hours in light of the above issues?
The applicant in its statement of issues, facts and contentions submitted the following:
•It is not agreed that the design of the facility is a relevant issue.
The applicant also submitted the following additional issues:
•In terms of impact on the standards of amenity, what is the 'locality' to be taken into consideration?
•Is it appropriate for the trading hours of businesses to be restricted by development approval conditions within an identified district level activity centre and District Centre zone?
•Is it agreed that the application is compliant with the intended character of an activity centre?
During the hearing, these issues were subject to further discussion and the matter proceeded on the basis that the central issues were:
•whether the use of the land for extended restaurant hours would result in adverse amenity impacts;
•whether the application is compliant with the intended character of the activity centre; and
•whether it is appropriate for the trading hours of businesses to be restricted within an identified district level activity centre and District Centre zone.
The Tribunal will deal with each of these issues in turn.
Whether the use of the land for extended restaurant hours would result in adverse amenity impacts
The basis for the assessment of amenity is set out in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR WA 296 (Tempora) at 304:
The determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality.
Existing amenity
In her witness statement, Ms Butterworth, the expert planner called by the respondent, provided a locality plan; the extent of the locality identified in this plan was not challenged in the hearing by the applicant.
Ms Butterworth gave evidence that while she accepted that the existing amenity of adjacent residents was not the same as residents in the middle of a homogeneous residential suburb (McDonald's Australia Ltd and City of Belmont [2012] WASAT 42 (McDonald's and Belmont) and Gosatti Holding Pty Ltd v City of Fremantle (Appeal No 48 of 1999, delivered 17 March 2000), it was her view that between the hours of midnight and 6 am, there would be very limited activity and noise generated in the locality.
Mr Price, the second expert planning witness called by the respondent, accepted that housing in close proximity to a shopping centre will have lesser amenity value than housing in a quiet residential street. However, he submitted that the immediate area presents as suburban in nature, with relatively low traffic volumes and a direct and close interface with abutting residential uses. Mr Price also noted the objections raised by residents during the original advertising of the development application.
Mr Haeren, the expert planner called by the applicant, argued that the nature of development in the vicinity is varied and that the development form is typical of its period with a clear distinction between commercial and surrounding residential areas. Mr Haeren also submitted that no residential properties directly abut the site and the closest residences back onto Murdoch Road.
The effect on the existing amenity
Ms Butterworth argued that her evening and early morning visits to a number of McDonald's restaurants in the metropolitan area had raised concerns over restaurant customers congregating in the carpark, voices elevated beyond normal conversation and the closing of car doors in a noisy manner. Ms Butterworth drew the conclusion that extended hours at the Forest Lakes McDonald's had the potential to inappropriately affect the current amenity of residential land near the subject site.
Mr Haeren, on behalf of the applicant, submitted that he was aware of similar fast food outlets having been developed in comparable contexts; that is, within commercial areas or activity centres set within a suburban locality, not on a highway/regional road, and also operating 24 hours and sometimes in proximity to a tavern or an open space. The examples submitted by Mr Haeren included Southlands, Ellenbrook, Kwinana, Mindarie, Beechboro and Warwick.
While noting issues of antisocial behaviour associated with the existing tavern, he argued that extended trading hours would not contribute to existing issues of antisocial behaviour, with the increased activity, lighting and appropriate management likely to assist in improving the situation. In addition, he submitted that the primary issue was noise and McDonald's had an appropriate management plan to address this issue.
In his witness statement, Mr Bellerby, the Real Estate Development Manager at McDonald's, reported that in following up community concerns over existing antisocial behaviour generated by the adjoining tavern, he had held a meeting with a senior officer from the Western Australia police force based at Canning Vale police station. The officer suggested that it was important the site was well lit, that high quality CCTV cameras were installed, and suggested security guards should be employed from 10 pm until the restaurant closes on Thursday to Saturday nights. Mr Bellerby advised that Maddington McDonald's has security from 8 pm to 2 am.
While Ms Butterworth and Mr Haeren generally agreed that the increase in traffic associated with extended trading was unlikely to be an issue in terms of amenity impacts, Mr Price submitted that traffic impacts after midnight could be substantial.
The opinions of the planning experts were divided on the question of the level of passive surveillance of the carpark. It was agreed that staff at the sales and service counter in the restaurant would not be in a position to provide passive surveillance of the carpark. Mr Haeren argued that the value of passive surveillance was the creation of a perception of increased risk of detection rather than constant observation. Ms Butterworth argued that she was of the view that the design does not meet the surveillance principles detailed in the Guidelines. It should be noted that the McDonald's facility will be equipped with a comprehensive CCTV camera system.
In his evidence, Mr Price also raised the potential for the congregation of tavern patrons in the area after midnight. It was generally accepted that the operation of the tavern had generated concerns in the locality. The applicant submitted that such issues needed to be tackled by the tavern, but the potential to get a meal after closing was likely to assist in dealing with this issue. The applicant also submitted that the Art Centre often operated late into the evening and the opportunity for a coffee or meal following events at this facility provided a considerable benefit.
In the context of the evidence provided, the Tribunal concluded that while the impacts of increased traffic associated with extended trading are unlikely to be significant, the potential congregation of customers in the carpark, and the noise in the carpark associated with doors slamming and loud talking, is likely to impact on the amenity of residential uses in the locality in the late evening and early morning when background noise levels are low. In addition, the need for comprehensive CCTV cameras and the suggestion that security staff are likely to be required during extended hours trading, suggest that antisocial behaviour is more than a remote possibility. Any such behaviour would further impact on the amenity of the locality.
The degree of impact on the locality
The only activity in the locality operating after midnight is the Jetts fitness centre and the nature of this use is unlikely to generate adverse impacts on the local amenity. In this context, the impacts of noise from the carpark and potential antisocial behaviour associated with McDonald's restaurant trading after midnight, particularly when read against the background noise levels at those times, are likely to generate unreasonable impacts on residential amenity in the locality.
Whether the application is compliant with the intended character of the activity centre
Mr Haeren, drawing on SPP 4.2, submitted that land uses that generate activity outside normal business hours should be located in activity centres to generate additional evening and weekend activity. While he accepted that each case should be assessed on its merits and the application of conditions as set out in SPP 4.2 might, in certain cases, be appropriate, the policy did not establish any specific provisions in regard to hours of operation.
Mr Haeren also identified a number of extended hours and 24 hour premises within the City of Gosnells and provided a map setting out their locations. The respondent, in its turn, provided a map of fast food outlets within the Gosnells area. While both parties raised issues with the methodology of their respective maps, it is clear to the Tribunal that the majority of such uses are located on major arterial roads within the municipality. In this context, the location of a district centre, not adjacent to an arterial road, is atypical, although it does also occur in Maddington.
The evidence of Mr Haeren regarding similar fast food outlets within commercial areas or activity centres set within a suburban locality, and not on a highway/regional road, also warrants scrutiny. Of the six examples provided, a review of the plans provided in evidence reveals that there are no single residences in the immediate vicinity of either the McDonald's facilities in Southlands and Kwinana. The Mindarie facility is located adjacent to a two storey residential complex.
Of the three examples which are in reasonably close proximity to single residential development, the McDonald's restaurants at both Beechboro and Warwick close at 11 pm. Thus, the Ellenbrook McDonald's restaurant which trades 24/7, is atypical. This is also the facility in regard to which Ms Butterworth raised amenity issues in her evidence.
Mr Haeren provided evidence that none of the six examples had any restriction on their operating hours under their respective planning approvals and submitted that, in his view, it was only standalone restaurants within a local or neighbourhood centre that could potentially require a different response to manage amenity impacts.
The intended character of the activity centre is not at this stage clear. While the respondent has developed a Draft Activities Centres Planning Strategy which notes the opportunity for many types of development, including, potentially, a 50% increase in retail floor space, the centre does not currently have a structure plan.
However, in the context of an activity centre which is atypically located in a residential neighbourhood, remote from arterial roads and poorly served by public transport, the location of a 24 hour restaurant clearly raises issues which need to be assessed on their planning merits. There cannot be any assumption that such an application is compliant with the intended character of the activity centre.
Whether it is appropriate for the trading hours of businesses to be restricted within an identified district level activity centre and District Centre zone
Mr Hearen, for the applicant, noted that businesses in the Forest Lakes District Centre have a variety of trading hours to suit the needs of their customers. Ms Butterworth provided evidence that these include: Subway, which opens till 9 pm; the tavern, which is open 11 am to 10 pm Sunday to Tuesday, 11 am to 11 pm on Wednesdays and Thursdays and 11 am to 12 midnight on Friday and Saturday; and Jetts fitness centre, which operates 24 hours a day, seven days a week. Evidence was also provided that the Don Russell Performing Arts Centre often closes at weekends at 11.45 pm.
Clause 5.2.1(4) of SPP 4.2 requires that '[l]and uses that generate activity outside normal business hours (eg hospitality and entertainment, community facilities, gymnasiums) should be located in activity centres to generate additional evening and weekend activity and to take advantage of shared use of facilities such as car parking and public transport'.
At the hearing, Ms Butterworth submitted that the aspirations of cl 5.2.1(4) of SPP 4.2 to encourage land uses which operate 'outside normal business hours' to 'generate additional evening and weekend activity' in activity centres should be interpreted as evening hours, rather than extending to early morning hours. This is an interpretation which the Tribunal accepts.
Mr Haeren submitted that the only use which is restricted in its operating hours under a condition of approval is the Subway outlet and other uses are free to determine their own opening hours based primarily on market demand. He considered it appropriate and legitimate that the McDonald's restaurant be able to operate according to market demand.
Ms Butterworth argued that whilst she accepted that the adjacent residents should not have the same expectation in regard to the amenity of a resident in the middle of a homogenous residential suburb, this should not equate to meaning that operations should be permitted to be conducted 24 hours per day, seven days per week, adjacent to existing dwellings.
She noted that cl 6(2) of SPP 4.2 requires that responsible authorities should not support development proposals that are likely to unreasonably affect the amenity of the locality through traffic or other impacts and that cl 11.2 of TPS 6 requires these matters to be weighed up for the actual site.
In preferring the evidence of Ms Butterworth, the Tribunal finds that the trading hours of businesses within district level activity centres and District Centre zones need to be assessed on the merits of the particular case in the context of the characteristics of the specific centre in question.
TPS 6 provides in cl 11.3 explicit powers to place conditions on planning approvals. In addition, Appendix 2 of SPP 4.2 sets out Model Centre Frameworks. Clause 7, which offers suggestions for statutory planning tools to support the delivery of an activity centre structure plan, suggests the use of conditions to 'proactively manage the impacts of development'.
Importantly, the respondent, has in the past, applied conditions restricting hours of operation of a fast food outlet (Subway) in this centre. In responding to the application the subject of this review, the Council applied very specific conditions relating to hours of operation, presumably based on a merits assessment of the circumstances of the case. Nothing emerging from the hearing provides an evidentiary basis to challenge that determination.
Signage conditions
At the time of the final hearing the parties agreed on amended conditions in regard to signage.
Conclusion
In the hearing, both the applicant and the respondent made reference to the decision of the Tribunal in McDonald's and Belmont. In the Tribunal's view, this matter can be differentiated from that case for the following reasons:
•The first substantive issue in those proceedings was whether the proposed use was appropriate in the 'Mixed Use' zone. The planning provisions in this case are clearly distinguishable from those applying in the McDonald's and Belmont case.
•The second substantive issue was whether the potential impacts on the amenity were acceptable. However, the evidence in that case was that in regard to potential impacts, increased late night traffic flows were the major concern. In the current matter, it was generally agreed by the expert witnesses that traffic was not a substantive issue.
•Finally, the location of the Belmont McDonald's on a major arterial which serves to link the Perth Central Business District with Perth Airport and beyond, and the presence of existing 24 hour fast food facilities in proximity to the proposed facility, are clearly very different from the locality of the facility the subject of this review.
The substantive argument put by the applicant in regard to hours of operation was that it was inappropriate to restrict the hours of operation of businesses located in district level activity centres and in the District Centre zone. The Tribunal does not accept this argument.
The respondent, or the Tribunal acting in its place on review, has a clear responsibility to assess each application on its merits, and any assessment of the merits of the case needs to assess the application in terms of the aims of the Scheme set out in cl 1.6 of TPS 6 and the matters to be considered under cl 10.4 of the Scheme.
In this case, as the extended hours are likely to generate unreasonable impacts on residential amenity in the locality and in the context of an activity centre which was atypically located in a residential neighbourhood, remote from arterial roads and poorly served by public transport, the location is not regarded as appropriate for a 24 hour restaurant.
For these reasons the application for the review of the condition addressing hours of operation was dismissed. The respondent's original condition on signage was amended to reflect the conditions on signage agreed between the parties.
Orders
The Tribunal makes the following orders:
1.Condition 13 of the City of Gosnells approval dated 13 March 2013 dealing with signage, and amended by the respondent at is meeting of 26 June 2012, shall be varied to read as follows:
The signage plan dated 17 October 2012 is approved subject to the following variations:
(a)The height of the pylon sign being not more than 7 m above the finished ground level immediately below the sign.
(b)Sign S5 (McCafe) being deleted from the front elevation.
(c)The two flagpoles being deleted.
(d)Directional sign S8A being modified to be set back a minimum of 2 m from the Murdoch Road boundary of the subject site and a minimum of 2 m from the western side boundary of the site.
(e)The location of the Sign S8B is to be modified to be set back:
(i)a minimum of 1 m from the front and side boundaries of the subject site; or
(ii)a minimum of 2 m from the side boundary and 0.56 m from the front boundary.
2.The review of Condition 13 of the City of Gosnells approval dated 13 March 2013 dealing with hours of operation is dismissed and the original condition upheld.
I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P DE VILLIERS, SENIOR SESSIONAL MEMBER
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