McDONALD'S AUSTRALIA LIMITED and PRESIDING MEMBER OF THE METROPOLITAN CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL

[2015] WASAT 146

McDONALD'S AUSTRALIA LIMITED and PRESIDING MEMBER OF THE METROPOLITAN CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2015] WASAT 146

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2015] WASAT 146
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:221/2015	Heard:	25, 26 AND 27 NOVEMBER 2015
Coram:	JUDGE D R PARRY (DEPUTY PRESIDENT) MR P DE VILLIERS (MEMBER)	Delivered:	18/12/15
No of pages:	47	Judgment Part:	1 of 1
Result:	Application for review allowed Decision of respondent to refuse development approval for fast food outlet with drive-through facility at Nos 844 ­ 846 (Lots 146 and 145) Canning Highway, Applecross set aside and decision substituted that development approval is granted subject to conditions
Category:	B
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Parties:	McDONALD'S AUSTRALIA LIMITED PRESIDING MEMBER OF THE METROPOLITAN CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL BP AUSTRALIA PTY LTD
Catchwords:	Town planning ­ Development application ­ Fast food outlet with drive­through facility ­ 24 hour, seven day a week operation ­ Community Centre zone precinct on primary regional road adjacent to R 25/40 coded residential area ­ Vehicular access to proposed fast food outlet from residential access road rather than from primary regional road ­ Traffic amenity impact ­ Traffic convenience and safety ­ Proposed local planning scheme ­ Four versions of proposed local planning scheme have been produced ­ Whether proposed local planning scheme would prohibit fast food outlet with drive­through facility ­ Weight to be given to inconsistency between proposed development and proposed local planning scheme
Legislation:	City of Melville Community Planning Scheme No 5, cl 2.1, cl 2.3, cl 2.3.1, cl 2.3.7, cl 7.5, cl 7.8 City of Melville Local Planning Scheme No 6 Environmental Protection (Noise) Regulations 1997 (WA) Planning and Development Act 2005 (WA), s 116, s 242, s 252(1), s 256(1), s 257B(2) Planning and Development Local Planning Schemes Regulations 2015 (WA), reg 8(1)(c), reg 10(4), reg 80, Sch 2 cl 67, cl 67(b) State Administrative Tribunal Act 2004 (WA), s 27, s 27(3), s 37(3)
Case References:	Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
Orders	1. The application for review is allowed.,2. The decision made by the Metropolitan Central Joint Development Assessment Panel on 12 June 2015 to refuse development approval for a fast food outlet with drive-through facility at Nos 844 - 846 (Lots 146 and 145) Canning Highway, Applecross is set aside and a decision is substituted that development approval is granted for the proposed development subject to the following conditions:,1. The development is to be carried out in accordance with the following plans and is to incorporate the angled canopy design proposal for acoustic walls outlined in the angled canopy design documents listed below:,Plans,(a) DA02, Rev C, dated 27 October 2015,(b) DA03, Rev C, dated 27 October 2015,(c) DA04, Rev B, dated 20 October 2015,(d) DA05, Rev C, dated 27 October 2015,(e) DA06, Rev D, dated 27 October 2015,(f) DA07, Rev B, dated 25 October 2015,(g) DA08, Rev B, dated 25 October 2015,(h) DA10, Rev D, dated 27 October 2015,(i) DA011, Rev A, dated 27 October 2015,(j) S01, Rev B, dated 27 October 2015,(k) S02, Rev B, dated 25 October 2015,(l) S03, Rev B, dated 25 October 2015,(m) S04, Rev A, dated 12 October 2015,Angled canopy design documents (attached to the orders made by the State Administrative Tribunal on 7 October 2015 in proceeding DR 221 of 2015),(a) Table 1: Wall requirement description,(b) Figure 1: Site layout showing wall extents and details,(c) Figure 2: Wall canopy section showing absorptive lining,(d) a designer's sketch of the proposed design.,2. All stormwater generated on site is to be retained on site and no stormwater drainage shall be discharged onto the Canning Highway road reserve.,3. No earthwork shall encroach onto the Canning Highway road reserve.,4. No development (including fencing, letter boxes or any other structure) or landscaping over 0.6m in height is to be located within the 1.5m x 1.5m sightline truncation where the vehicle access point meets the road reserve to the satisfaction of the Manager Statutory Planning of the City of Melville.,5. Lighting to be provided to all car parking areas and the exterior entrances to all buildings in accordance with Australian Standard AS 1158.3.1 (Cat. P). All external lighting to be hooded and oriented so that the light source is not directly visible to the travelling public or abutting residences.,6. Prior to commencement of the development, a detailed landscaping and reticulation plan for the subject site and the road verge(s) adjacent to the site shall be submitted to and approved in writing by the Manager Statutory Planning of the City of Melville. The landscaping plan is to include details of (but not limited to):,• The location, number and type of proposed trees and shrubs including size and planting density;,• Any lawns to be established;,• Any existing vegetation and/or landscaped areas to be retained; and,• Any verge treatments.,The approved landscaping and reticulation plan shall be fully implemented within the first available planting season after the initial occupation of the development and maintained thereafter to the satisfaction of the Manager Statutory Planning of the City of Melville. Any species which fail to establish within the first two planting seasons following implementation shall be replaced in accordance with the City's requirements.,7. Prior to the commencement of works, a scheme for the provision of Public Art shall be submitted to and approved in writing by the Manager Statutory Planning of the City of Melville in consultation with the City's Public Art Panel. Once approved, the Public Art shall be provided in accordance with the City of Melville Council Policy - 085: Provision of Public Art in Development Proposals prior to the initial occupation of the development to the satisfaction of the Manager Statutory Planning of the City of Melville. Alternatively, the public art contribution may be satisfied by a cash­in­lieu payment to the value of 1% of the cost of the development, as set out in the Policy Statement 2 of the City of Melville Council Policy - 085: Provision of Public Art in Development Proposals made prior to the commencement of works.,8. A Construction Management Plan is to be prepared by the applicant and submitted to the Manager Statutory Planning of the City of Melville for approval at least 30 days prior to the commencement of works. The Construction Management Plan shall detail how the construction of the development will be managed including the following:,• Public safety and site security;,• Hours of operation;,• Noise and vibration controls;,• Air and dust management;,• Stormwater, groundwater and sediment control;,• Waste and material disposal;,• Traffic management plans for the various phases of construction, including any proposed road closures;,• The parking arrangements for contractors and sub­contractors;,• On-site delivery times and access arrangements;,• The storage of materials and equipment on site (no storage of materials on the verge will be permitted); and,• Any other matters likely to impact upon the surrounding properties or road reserve.,Once approved, the development is to be constructed in accordance with the Construction Management Plan to the satisfaction of the Manager Statutory Planning of the City of Melville.,9. Prior to the initial occupation of the development, a Waste Management Plan shall be prepared in accordance with the City of Melville Council Policy - Waste and Recyclables Collection for Multiple Dwellings, Mixed Use Developments and Non­Residential Developments and submitted in writing for the approval of the Manager Statutory Planning of the City of Melville. Once approved, the development is to be constructed and operated in accordance with the Wast Management Plan to the satisfaction of the Manager Statutory Planning of the City of Melville.,10. Any roof mounted or freestanding plant or equipment shall be located and/or screened so as not to be visible from the surrounding streets prior to the initial occupation of the development to the satisfaction of Manager Statutory Planning of the City of Melville.,11. This decision constitutes planning approval only and is valid for a period of two years from the date of approval. If the subject development is not substantially commenced within the two year period, the approval shall lapse and be of no further effect.,12. Prior to the commencement of the development, the applicant shall enter into a Deed of Agreement with Main Roads Western Australia in respect of the ceding of land for the future widening of Canning Highway, addressing the transfer of land to the Commissioner for Main Roads WA for road improvement purposes.,13. The applicant is to provide a written acknowledgment by way of Notification registered on Title under s 70A of the Transfer of Land Act 1893 (WA) that development is permitted on the basis that no compensation will be sought by the applicant or the applicants successors in respect of the loss of the approved improvements in the portion reserved for road purposes, if and when the identified portion of the land is acquired for any works consistent with the purpose of the reservation.,14. The noise attenuation wall hereby approved shall be implemented in full prior to the initial occupation of the development.,15. No vehicle access shall be permitted to and from the Canning Highway road reserve from the subject site.,16. Prior to the commencement of development a Traffic Management Plan shall be submitted to and approved in writing by the Manager Statutory Planning of the City of Melville. The Traffic Management Plan shall outline how the proposed use will be serviced, including product delivery and waste collection. The use shall operate in accordance with the approved Traffic Management Plan to the ongoing satisfaction of the Manager Statutory Planning of the City of Melville.
Summary	McDonald's Australia Limited sought review by the Tribunal of the decision of the Metropolitan Central Joint Development Assessment Panel to refuse development approval for a McDonald's fast food restaurant and drive­through facility at Nos 844 ­ 846 (Lots 146 and 145) Canning Highway, Applecross.  The site is located at the corner of Canning Highway and Reynolds Road.  The proposed development would operate 24 hours a day, seven days a week.  It would replace an existing McDonald's fast food restaurant and drive­through facility at the corner of Canning Highway and Sleat Road, Applecross, approximately 400 metres to the east of the site, which operates 24 hours a day, seven days a week.,The development application attracted significant community opposition.  The Tribunal granted leave to residents of 23 properties in Reynolds Road, Macrae Road and Glenelg Street, Applecross to make a submission in relation to the traffic impacts and consequences of the proposed development.  The Tribunal considered the residents' submission as part of the review.,The respondent contended that the proposed development should be refused for two reasons, namely, that the traffic generation of the proposed development would have unacceptable impacts in terms of residential amenity in Reynolds Road and traffic safety and convenience in Reynolds Road and at the intersection of Reynolds Road and Canning Highway, and that the proposed drive­through facility is a prohibited use under draft local planning scheme LPS 6.,The Tribunal determined that the proposed development merits development approval, because:,it is consistent with the applicable planning framework, and in particular, a relatively recent rezoning of the site and of the Reynolds Road Community Centre Precinct (of which the site forms part) in August 2013;,it is acceptable in terms of amenity impacts, including traffic amenity impacts;,it is acceptable in relation to traffic safety and convenience; and,although, as it includes a drive­through component, it is inconsistent with the planning objective or planning approach reflected in draft LPS 6, that inconsistency should only be accorded limited weight in the circumstances of this case.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : McDONALD'S AUSTRALIA LIMITED and PRESIDING MEMBER OF THE METROPOLITAN CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2015] WASAT 146 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT)

MR P DE VILLIERS (MEMBER)

HEARD : 25, 26 AND 27 NOVEMBER 2015 DELIVERED : 18 DECEMBER 2015 FILE NO/S : DR 221 of 2015 BETWEEN : McDONALD'S AUSTRALIA LIMITED

Applicant

AND

PRESIDING MEMBER OF THE METROPOLITAN CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

BP AUSTRALIA PTY LTD
Intervenor

Catchwords:

Town planning ­ Development application ­ Fast food outlet with drive­through facility ­ 24 hour, seven day a week operation ­ Community Centre zone precinct on primary regional road adjacent to R 25/40 coded residential area ­ Vehicular access to proposed fast food outlet from residential access road rather than from primary regional road ­ Traffic amenity impact ­ Traffic convenience and safety ­ Proposed local planning scheme ­ Four versions of proposed local planning scheme have been produced ­ Whether proposed local planning scheme would prohibit fast food outlet with drive­through facility ­ Weight to be given to inconsistency between proposed development and proposed local planning scheme

Legislation:

City of Melville Community Planning Scheme No 5, cl 2.1, cl 2.3, cl 2.3.1, cl 2.3.7, cl 7.5, cl 7.8

City of Melville Local Planning Scheme No 6
Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development Act 2005 (WA), s 116, s 242, s 252(1), s 256(1), s 257B(2)
Planning and Development Local Planning Schemes Regulations 2015 (WA), reg 8(1)(c), reg 10(4), reg 80, Sch 2 cl 67, cl 67(b)
State Administrative Tribunal Act 2004 (WA), s 27, s 27(3), s 37(3)

Result:

Application for review allowed

Decision of respondent to refuse development approval for fast food outlet with drive-through facility at Nos 844 ­ 846 (Lots 146 and 145) Canning Highway, Applecross set aside and decision substituted that development approval is granted subject to conditions

Summary of Tribunal's decision:

McDonald's Australia Limited sought review by the Tribunal of the decision of the Metropolitan Central Joint Development Assessment Panel to refuse development approval for a McDonald's fast food restaurant and drive­through facility at Nos 844 ­ 846 (Lots 146 and 145) Canning Highway, Applecross. The site is located at the corner of Canning Highway and Reynolds Road. The proposed development would operate 24 hours a day, seven days a week. It would replace an existing McDonald's fast food restaurant and drive­through facility at the corner of Canning Highway and Sleat Road, Applecross, approximately 400 metres to the east of the site, which operates 24 hours a day, seven days a week.

The development application attracted significant community opposition. The Tribunal granted leave to residents of 23 properties in Reynolds Road, Macrae Road and Glenelg Street, Applecross to make a submission in relation to the traffic impacts and consequences of the proposed development. The Tribunal considered the residents' submission as part of the review.
The respondent contended that the proposed development should be refused for two reasons, namely, that the traffic generation of the proposed development would have unacceptable impacts in terms of residential amenity in Reynolds Road and traffic safety and convenience in Reynolds Road and at the intersection of Reynolds Road and Canning Highway, and that the proposed drive­through facility is a prohibited use under draft local planning scheme LPS 6.
The Tribunal determined that the proposed development merits development approval, because:

• it is consistent with the applicable planning framework, and in particular, a relatively recent rezoning of the site and of the Reynolds Road Community Centre Precinct (of which the site forms part) in August 2013;
• it is acceptable in terms of amenity impacts, including traffic amenity impacts;
• it is acceptable in relation to traffic safety and convenience; and
• although, as it includes a drive­through component, it is inconsistent with the planning objective or planning approach reflected in draft LPS 6, that inconsistency should only be accorded limited weight in the circumstances of this case.

Category: B

Representation:

Counsel:

Applicant : Mr PG McGowan
Respondent : Ms CA Ide
Intervenor : N/A

Solicitors:

Applicant : Corrs Chambers Westgarth
Respondent : State Solicitor's Office
Intervenor : Clayton Utz

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

Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 McDonald's Australia Limited (McDonald's) seeks review by the Tribunal, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision of the Metropolitan Central Joint Development Assessment Panel (DAP) to refuse development approval for a McDonald's fast food restaurant and drive-through facility at Nos 844 ­ 846 (Lots 146 and 145) Canning Highway, Applecross (site). The site is located at the corner of Canning Highway and Reynolds Road. The proposed development would operate 24 hours a day, seven days a week. It would replace an existing McDonald's fast food restaurant and drive­through facility at the corner of Canning Highway and Sleat Road, Applecross, approximately 400 metres to the east of the site, which operates 24 hours a day, seven days a week.

2 The development application has attracted significant community opposition. Residents in Reynolds Road and elsewhere in Applecross made 47 written objections to the development application and six oral submissions against the proposed development were presented at the DAP meeting at which it was refused consent. Residents of 23 properties in Reynolds Road, Macrae Road and Glenelg Street, Applecross sought leave to make submissions to the Tribunal in respect of the application pursuant to s 242 of the PD Act. On 7 October 2015, the Tribunal granted leave to those residents to make a submission 'in relation to the traffic impacts and consequences of the development the subject of the application in the form of a single written submission'. The residents' amended submission under s 242 of the PD Act was filed on 23 October 2015 and became Exhibit 16 in the proceeding.

3 At its meeting on 12 June 2015, the DAP refused the development application for the following six reasons:

1. The proposed development is not consistent with State Planning Policy 4.2: Activity Centres for Perth and Peel (SPP 4.2) as it does not respect the centre hierarchy.

2. The proposed use is inconsistent with the Statement of Intent for the City of Melville Community Planning Scheme No 5 (CPS 5 or Scheme) Reynolds Road Community Centre Precinct.

3. The proposed use and the resultant traffic generation does not satisfy cl 7.8 of CPS 5 as it is not consistent with orderly and proper planning or the existing and likely future amenity of the area.

4. The proposed acoustic noise walls do not satisfy cl 7.8 of CPS 5, by virtue of their height, length and location and are not consistent with orderly and proper planning or the existing and likely future amenity of the area.

5. The proposed use is inconsistent with the objectives of the Neighbourhood Centre as outlined in the draft City of Melville Local Planning Scheme No 6 (LPS 6).

6. The drive­through facility is an 'X' use within the Neighbourhood Centre zone in the draft LPS 6.

4 However, during the course of the review proceeding, the respondent abandoned four of these issues. In particular, the respondent did not ultimately advance any issue, present any contention or call any evidence to the effect that the proposed development would be inconsistent with SPP 4.2 (the DAP's first reason for refusal); that the proposed development would be inconsistent with the Statement of Intent for the Reynolds Road Community Centre Precinct under CPS 5 (the DAP's second reason for refusal); that the proposed acoustic noise walls are unacceptable (the DAP's fourth reason for refusal); or that the proposed development is inconsistent with the objectives of the Neighbourhood Centre as outlined in draft LPS 6 (the DAP's fifth reason for refusal).

5 Most significantly, in this regard, although the town planning expert witness called by the respondent, Mr Peter Prendergast, the Manager Statutory Planning at the City of Melville (City), said in his witness statement that the proposed development 'would seriously conflict with the objectives of the Scheme, and be contrary to the Statement of Intent' for the Reynolds Road Precinct under the Scheme (Exhibit 4, paragraph 40), by the time he came to give oral evidence at the hearing, Mr Prendergast had changed his opinion, stating that it 'would be difficult to resist [approval of the proposed development] in the context of the provisions of CPS 5 as they stand' (T:97.3; 26.11.15) and that the proposed development is consistent with the Statement of Intent for the Reynolds Road Precinct under the Scheme (T:97.5; 26.11.15). The respondent did not seek to call any other town planning expert witness. Mr Prendergast's change of opinion, and the respondent's consequent abandonment of its second reason for refusal, constituted a significant change of position in the proceeding. Had Mr Prendergast's evidence remained as it was originally foreshadowed in his witness statement and had the respondent's case remained as it was originally formulated, the Tribunal's determination as to the correct and preferable decision in this proceeding may well have been different.

6 Ultimately, the respondent contended that the proposed development should be refused for two reasons, namely, that the traffic generation of the proposed development would have unacceptable impacts in terms of residential amenity in Reynolds Road and traffic safety and convenience in Reynolds Road and at the intersection of Reynolds Road and Canning Highway (the DAP's third reason for refusal) and that the proposed drive­through facility is a prohibited use under draft LPS 6 (the DAP's sixth reason for refusal). Other contentions foreshadowed in the respondent's statement of issues, facts and contentions were ultimately not pressed.

7 For reasons set out after referring to the site and locality, the proposed development and the planning framework, the Tribunal has determined that the proposed development merits approval in the exercise of planning discretion under the Scheme. The Tribunal considers that, on the evidence before it, the amenity, safety and convenience consequences of the traffic generation of the proposed development are acceptable. The Tribunal also considers that, although the proposed development is inconsistent with the planning objectives or planning approach reflected (although somewhat imperfectly) in various versions of draft LPS 6, insofar as the proposed development incorporates a drive­through component, only limited weight should be given to that inconsistency in the circumstances of this case. When this consideration is weighted together with other relevant considerations relating to the development application, it is appropriate, in the exercise of planning discretion, to grant approval to the proposed development subject to conditions.

Site and locality

8 The site comprises two similarly sized lots with a combined frontage to Canning Highway (to the south) of approximately 40 metres, a frontage to Reynolds Road (to the east) of approximately 56 metres, and a total area of approximately 2,208m². Each lot is currently occupied by a single storey building, originally a dwelling, which has been converted and is used for commercial purposes (consulting rooms and real estate agency). Access to both lots is via an existing single driveway from Reynolds Road to a shared car parking area at the rear (north) of the site.

9 The site is located on the north­western corner of the Canning Highway/Reynolds Road intersection. The site and the adjoining property to the north, which fronts Reynolds Road, comprises the north­western portion of the Reynolds Road Community Centre Precinct (Reynolds Road Precinct) under CPS 5. The Reynolds Road Precinct is bisected by Canning Highway, which runs roughly east-west, and by Reynolds Road, which runs roughly north­south.

10 The north­eastern portion of the Reynolds Road Precinct (across Reynolds Road (north) from the site) comprises a petrol filling station and convenience store owned and operated by BP Australia Pty Ltd (BP), which operates 24 hours a day, seven days a week, and a lot, currently comprising a dwelling, to its north. (On 6 November 2015, the Tribunal granted leave to BP, pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), to intervene in the proceeding 'in relation to the potential effect of an extension of the median strip on Reynolds Road, Applecross, upon its property and use of its property' and limited the intervention to calling a representative of BP to give evidence in that regard; a witness statement of Katherine Lyn Bond, who is employed by BP in the role of Asset Manager Western Australia, was Exhibit 15 in the proceeding.)

11 The south­western portion of the Reynolds Road Precinct (across Canning Highway from the site) comprises the Reynolds Road Medical Centre, at the corner of Canning Highway and Reynolds Road (south), which operates seven days a week, and to its south, a building containing allied health professional consulting rooms, including chiropractic, speech pathology and psychology.

12 The south-eastern portion of the Reynolds Road Precinct (diagonally across Canning Highway from the site) comprises two lots, the first comprising a two storey apartment block at the corner of Canning Highway and Reynolds Road (south), and the second comprising a single storey building, originally a dwelling, which has been converted and is used as an allied health professional consulting room for podiatry, to its east.

13 As discussed below, the Reynolds Road Precinct was zoned Community Centre and specifically identified as the Reynolds Road Precinct within that zoning under CPS 5 by Amendment No 63 to CPS 5 (Amendment 63), which was gazetted on 27 August 2013.

14 The locality surrounding the Reynolds Road Precinct comprises a residential area containing single houses, grouped dwellings and multiple dwellings. This area is zoned Living Area with a residential density coding of R 25/40 under CPS 5.

15 The properties comprising the Reynolds Road Precinct north of Canning Highway, which include the site, occupy slightly less than half of the frontage of Reynolds Road between Canning Highway (south) and Macrae Road (north). Significantly, the zoning boundary in Reynolds Road does not occur at the northern boundary of the site, but rather, at the northern boundary of the property that adjoins this site to the north.

16 The intersection of Canning Highway and Reynolds Road is a controlled intersection with traffic lights. Canning Highway is a primary regional road carrying in excess of 45,000 vehicles per day.

17 Reynolds Road north of Canning Highway is classified under the Main Roads WA road hierarchy as an access road. The Main Roads WA road hierarchy road types and criteria document states that, for an access road in a built up area, the 'maximum desirable volume' is 3,000 vehicles per day. In November 2012, an average of 2,032 vehicles per day were calculated on Reynolds Road at a point 80 metres north of the intersection with Canning Highway. The traffic engineering expert witnesses and the parties in this proceeding agree that the number of vehicles in Reynolds Road in the location of the site currently is likely to be 2,032 vehicles per day.

18 Physically, for most of its length between Macrae Road (north) and Canning Highway (south), Reynolds Road is a two lane, undivided, local access road, with a constructed, approximately 6 metre wide carriageway and with no centre line. However, about 40 metres north of Canning Highway, Reynolds Road begins to widen out to create a divided, two lane southbound approach to the traffic signals at the Canning Highway intersection and a northbound carriageway at the entry to Reynolds Road (north) which has a similar width to the two southbound lanes, although in the form of a wide, single lane.

Proposed development

19 As noted earlier, the proposed development comprises a McDonald's fast food restaurant and drive­through facility that would operate 24 hours a day, seven days a week. The proposed restaurant would have 96 seats (an increase of 36 seats or 60% over the seating at the current Applecross McDonald's restaurant) and a McCafé. The drive­through facility would contain a double queuing and ordering area, although only a single cashier and only a single window for drive-through fast food collection. The physical form of the proposed development comprises a two storey (approximately 8.5 metre high) commercial style building at the south­eastern corner of the site, addressing Canning Highway/Reynolds Road, with a façade treatment emphasising the corner location.

20 On 6 November 2015, McDonald's sought leave to amend the development application, and the Tribunal granted leave with the consent of the respondent, to modify the design of the proposed development so as to exclude any built form from the south­eastern corner of the site which forms part of Planning Control Area No 117 (PCA 117), which was gazetted on 18 September 2015 for the purposes of future road widening on Canning Highway.

21 The main entry point for the development would be from Reynolds Road, with pedestrian access from the car parking area and Reynolds Road. The existing vehicular entry to the site off Reynolds Road is proposed to be relocated further to the north, so that it is approximately 50 metres from the Canning Highway/Reynolds Road intersection.

22 The carpark, located in the northern part of the site, would contain 28 car parking bays, exclusive of the vehicle capacity of the drive-through facility. The plans of the proposed development nominate four car parking bays for staff parking, although during the course of concurrent evidence of the traffic engineering expert witnesses, they agreed that the first two car bays in the north-eastern corner of the site should be allocated to staff, rather than to customers, because of potential traffic conflicts with vehicles entering and exiting the site. The traffic engineering expert witnesses agreed that this change could appropriately be shown in a Traffic Management Plan that is required to be submitted to and approved by the City's Manager Statutory Planning in accordance with a proposed and agreed draft, 'without prejudice' condition of development approval to be imposed if the Tribunal considers that the proposed development merits approval. The expert witnesses also agreed that the Traffic Management Plan should require vehicles to proceed in a clockwise direction through the carpark, so as to minimise the potential for collisions. Furthermore, the expert witnesses agreed that the Traffic Management Plan should restrict deliveries to between 9 am and 11.30 am, because delivery trucks would have to reverse into the loading bay located on the western side of the proposed building, across the drive­through pick up lane, and then drive out across that lane to exit the site, so as to avoid the breakfast and lunchtime peak periods.

23 The proposed development also includes acoustic fencing and acoustic walls along the western and northern boundaries. On 7 October 2015, the Tribunal granted leave, with the consent of the respondent, to modify the development application to incorporate an 'angled canopy design proposal for acoustic walls'. The proposed fencing at the western boundary comprises a 1.8 metre high fence of Colorbond on blockwork (0.8 ­ 1.2 metre) retaining wall and then a 2.85 metre high wall comprising a 2 metre high acoustic wall with a 1.2 metre angled steel frame acoustic screen canopy. The fence to the northern boundary is principally 2.65 metres in height and comprises a 1.8 metre high acoustic wall with a 1.2 metre high angled steel frame acoustic screen canopy.

24 McDonald's called Mr Benjamin Wilson, an acoustic engineer, to give evidence. Mr Wilson gave evidence that noise emissions from the proposed development can meet the noise limits set by the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations). The respondent did not present any contrary evidence or advance any contrary contention. The respondent did not cross­examine Mr Wilson. In light of Mr Wilson's qualifications and experience and the fact that his evidence was not challenged, we accept it.

Planning framework

25 The site is zoned Urban under the Metropolitan Region Scheme (MRS). Canning Highway is reserved as a Primary Regional Road under the MRS.

26 As noted earlier, PCA 117 was gazetted on 18 September 2015 for the purposes of future road widening on Canning Highway. The area the subject of PCA 117 includes the south­eastern corner of the site, the south­western corner and westernmost part of the BP property and the area of Reynolds Road north of Canning Highway for approximately half its length to Macrae Road. As noted earlier, the proposed development was amended on 6 November 2015 so as to exclude any built form from the area the subject of PCA 117. Under s 116 of the PD Act, the Western Australian Planning Commission (Commission) is the planning consent authority for all development in a planning control area. McDonald's has sought development approval from the Commission for the proposed relocation of the crossover on Reynolds Road to the position shown on the plans the subject of the development application.

27 As noted earlier, the site and the whole of the Reynolds Road Precinct was zoned Community Centre and recognised as the Reynolds Road Precinct under CPS 5, by Amendment 63 to the Scheme, which was gazetted on 27 August 2013.

28 It is common ground that the proposed development is properly classified as 'fast food outlet' under CPS 5 and that, because this land use is not listed in Table 1: Use Class Table in cl 7.5 of the Scheme, it is a 'D' use, that is, a 'use not permitted unless the Council [relevantly, the DAP or the Tribunal on review] exercises discretion and grants planning approval'.

29 The report by the Commission to the Minister for Planning recommending final approval of Amendment 63 included the following under 'discussion':

The amendment proposes to rezone the land abutting the Canning Highway and Reynolds Road intersection from 'Living Area' and 'Additional Use' to 'Community Centres (Reynolds Road)'. The intent of the amendment is to formalise the established commercial land-uses located on these sites and to acknowledge the importance of the area as a specialised local centre. In this regard the amendment recognised the range of facilities and services already available, including medical consulting rooms, small-scale offices and a service station.

A 'Community Centre' Precinct is classified as a low order activity centre under CPS No. 5, with land use and development provisions that reflect this status. More specifically, the 'Community Centres' Precincts are intended to accommodate primarily community facilities, such as shops, medical facilities, small offices, religious establishments, schools and halls but may include aged persons housing and other medium density residential to take advantage of their proximity to community facilities. This will ensure that higher order centres such as Riseley Street and Canning Bridge can continue to operate at their higher order level without being compromised by the proposed centre.

…

[T]he amendment will expand the range of uses that can be developed on the amendment sites, which will facilitate redevelopment and better serve the needs of the community.

30 The Statement of Intent for the Community Centre Precincts under CPS 5 states as follows:

Primarily community facilities, such as shops, schools and halls but may include aged persons housing and other medium density residential to take advantage of facilities. May include licensed premises, parks, religious, public, recreational, educational and medical uses, and small scale offices provided they are not developed to such an intensity that they disturb the Precinct. Any additional retail facilities shall adjoin existing shops and shall be advertised in accordance with Clause 7.5.

31 The Statement of Intent for the Reynolds Road Precinct, which was included in CPS 5 as part of Amendment 63, states as follows:

To provide for a limited range of retail, personal and commercial services to meet the daily needs of local residents.

32 Clause 2.1 of CPS 5 states that the general objective of the Scheme is to 'maintain and improve the quality of life and services for the residents of the City of Melville'. Under clause 2.3 of CPS 5, the specific objectives of the Scheme include to 'enhance the character and amenity of existing residential areas' (clause 2.3.1) and to 'achieve safe, equitable, convenient and efficient movement of people and goods, where travel is required' (clause 2.3.7).

33 As noted earlier in these reasons, although Mr Prendergast stated in his witness statement that the proposed development 'would seriously conflict with the objectives of the Scheme, and be contrary to the Statement of Intent' of the Reynolds Road Precinct, by the time he came to give his oral evidence at the hearing, he had changed his opinion and said that it 'would be difficult to resist [approval of the proposed development] in the context of the provisions of CPS 5 as they stand' (T:97.3; 26.11.15) and that the proposed development is consistent with the Statement of Intent for the Reynolds Road Precinct under the Scheme (T:97.5; 26.11.15).

34 The deemed provisions for local planning schemes in Sch 2 of the Planning and Development Local Planning Schemes Regulations 2015 (WA) (LPS Regulations) (deemed provisions) came into force on 19 October 2015 under s 256(1) of the PD Act. In consequence of s 257B(2) of the PD Act and reg 8(1)(c) and reg 10(4) of the LPS Regulations, the deemed provisions have effect as part of CPS 5. Clause 67 of the deemed provisions states, in part, as follows:

In considering an application for development approval the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application ­

(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;

(b) the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 …

(m) the compatibility of the development with its setting including the relationship of the development 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 development;

(n) the amenity of the locality including the following ­


(i) environmental impacts of the development;

(ii) the character of the locality;

(iii) social impacts of the development;


…

(t) the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;

…

(y) any submissions received on the application;

…

(zb) any other planning consideration the local government considers appropriate.

35 The City has prepared draft LPS 6 which was advertised from 3 October 2014 to 16 January 2015 (version 1). A second version of draft LPS 6 was adopted by the Council of the City in May 2015 (version 2). Subsequently, later in May 2015, a third version of draft LPS 6 was forwarded by the City to the Commission for approval by the Minister for Planning (version 3). As discussed below, it appears that version 3 of draft LPS 6 has been replaced by a fourth version (version 4), which is under discussion between officers of the City and of the Department of Planning. Draft LPS 6 is a 'proposed local planning scheme … that has been advertised' (under the now repealed Town Planning Regulations 1967 (WA), which is taken by reg 80 of the LPS Regulations to be advertising under the LPS Regulations), within the meaning of cl 67(b) of the deemed provisions, and is, therefore, a relevant matter for consideration in the exercise of planning discretion in the determination of this review proceeding.

36 Finally, the site is subject to the City of Melville Reynolds Road Community Centre Policy (Reynolds Road Policy), the objective of which is to 'prescribe additional development requirements for the Reynolds Road Community Centre which are not addressed by CPS 5 or by other Council policies'. In terms of design, clause 1.1 of the Reynolds Road Policy states as follows:

All development must have regard to the following design principles:

(a) Buildings must be designed to respect the residential character of the surrounding area in terms of scale, appearance and curtilage treatment.

(b) To provide a suitable interface between residential and commercial land uses to ensure that residential amenity is safeguarded.

(c) Mixed-use developments that promote an 'urban village' environment, with ground floor commercial tenancies and residential uses above, are encouraged.

37 The respondent did not ultimately raise any issue or concern in relation to the proposed development with respect to the Reynolds Road Policy, other than in terms of adverse amenity impacts associated with traffic generated by the proposed development.

38 Clause 2.1 of the Reynolds Road Policy concerns traffic and access. Clause 2.1(c) provides that new vehicle access or egress to Canning Highway 'is not permitted' and that a 'reduction in the existing number of access/egress points onto Canning Highway is encouraged.' Clause 2.1(f) states that the construction of 'new vehicle crossovers to Reynolds Road should be avoided' and that '[w]here this is not possible, they should be located as far from the Canning Highway/Reynolds Road intersection as practicable'. The proposed development complies with the parking and access requirements of the Reynolds Road Policy.

Consideration of review

39 Section 27 of the SAT Act states as follows:

(1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision­maker but may involve the consideration of new material whether or not it existed at the time the decision was made.

(2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.

(3) The reasons for decision provided by the decision­maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.

40 Thus, the Tribunal's function in this proceeding is 'to produce the correct and preferable decision at the time of the decision upon the review'. As is apparent from s 27(3) of the SAT Act, the reasons for refusal provided by the DAP do not limit the Tribunal in conducting a proceeding for a review of the decision to refuse development approval. However, the Tribunal is usually guided in the identification of relevant issues for determination by the issues ultimately advanced by the respondent in the review proceeding. As noted earlier, the respondent has abandoned four of the DAP's six reasons for refusal, including, in terms of consistency with the current planning framework, during the evidence of Mr Prendergast. The respondent has also not raised any issue against approval of the proposed development on the basis of any consideration introduced by the deemed provisions.

Consistency with the Scheme

41 As noted earlier, Mr Prendergast gave evidence that 'it would be difficult to resist [approval of the proposed development] in the context of the provisions of CPS 5 as they stand' (T:97.3; 26.11.15) and that the proposed development is consistent with the Statement of Intent for the Reynolds Road Precinct under the Scheme (T:97.5; 26.11.15). Mr Ray Haeren, a town planner who was called by McDonald's, gave evidence to the same effect. Mr Haeren said that 'the existing uses within the precinct include a service station[,] medical centre, specialist services and offices' and that this 'reflects the function of the centre which contains a range of services which have a broader catchment based on the relative exposure and accessibility of the centre as part of the Canning Highway activity centre'. Mr Haeren gave evidence that a 'restaurant and take away food outlet will serve local residents, as well as a broader catchment through passing trade'. He also gave evidence that 'the network of McDonald's restaurants limit[s] the likely catchment draw of such a facility, with existing restaurants located in Booragoon, Myaree and Kensington'. Mr Haeren suggested that 'this would be similar to the BP, with the nearest BP's [sic] being at Attadale, Myaree and Manning' and that '[t]his results in a focus of serving local residents'. Mr Haeren was not cross­examined on any of this evidence.

42 Mr Prendergast and Mr Haeren are both very experienced town planners. Mr Prendergast holds a senior position with the City. Having regard to their evidence, the Tribunal finds that the proposed development is consistent with the Statement of Intent for the Reynolds Road Precinct and with the provisions of the Scheme generally (subject to the consideration of the impact of the proposed development on residential amenity and on traffic safety and convenience, in consequence of the traffic generation of the proposal, which is discussed below).

43 A finding that a proposed development is consistent with the applicable local planning scheme is a powerful factor in favour of its approval. The finding in this case is even more significant, given that the site and the Reynolds Road Precinct generally were rezoned 'to formalise the established commercial land­uses located on these sites' and to 'facilitate redevelopment and better serve the needs of the community' by means of a relatively recent amendment to the Scheme in August 2013.

44 However, this finding must be balanced in the exercise of planning discretion with other relevant considerations.

Impact on the amenity of the locality

45 The respondent has not raised any issue, advanced any contention or called any evidence to the effect that the proposed development would have any adverse impact on the amenity of the locality other than in consequence of traffic generation. In particular, as noted earlier, McDonald's presented acoustic evidence which was not contested by the respondent in this review. Furthermore, the respondent has not advanced any argument that the proposed development would have any adverse impacts in any respect, including social impacts, beyond amenity impacts and traffic safety and convenience impacts associated with traffic generation.

46 Having regard to the issues, contentions and evidence presented by the parties, the Tribunal finds that the proposed development would not have any adverse impacts (subject to the consideration of impacts of traffic generation of the proposal, discussed below). This finding is also a powerful reason in favour of approval of the proposed development. However, this finding, too, must be balanced in the exercise of planning discretion with all other relevant considerations.

Traffic amenity, safety and convenience

47 The Tribunal had the benefit of expert evidence in relation to traffic from three qualified traffic engineers, Mr Jonathan Riley (a traffic engineer with over 30 years' experience, called by McDonald's), Mr Jacob Martin (a traffic engineer with eight years' experience, also called by McDonald's), and Mr Stephen Yapp (a traffic engineer with 25 years' experience, called by the respondent). These witnesses provided individual witness statements, conferred with one another before the hearing and prepared a joint statement of evidence (Exhibit 7), and then gave concurrent expert evidence at the hearing, as an expert panel, in which they were encouraged to respond to each other's evidence.

48 The three traffic experts each adopted different methodologies to determine the likely traffic generation of the proposed development. Mr Riley said that, because the proposed development involves the 'relocation' of the existing McDonald's facility at the corner of Canning Highway and Sleat Road, Applecross, to the site, he carried out a survey of the number of vehicles associated with McDonald's at the existing Applecross facility during the peak periods of 5 pm to 7 pm on a Friday and 12 pm to 2 pm on a Saturday, and then applied the transaction ratios of that store during the relevant period to the daily number of transactions at the store to determine the likely all day traffic volume at the proposed development. On the basis of this methodology, Mr Riley determined the likely traffic generation of the proposed development to be 2,667 vehicle trips per day.

49 Mr Martin approached the determination of traffic generation of the proposed development differently. He utilised the number of drive­through customers at the existing Applecross McDonald's (as did Mr Riley), but he did not utilise the number of dine­in customers at the existing Applecross McDonald's, because it does not have a McCafé facility. Rather, Mr Martin looked for 'the nearest equivalent store in Western Australia' that includes a McCafé, which he identified as the Warnbro McDonald's (T:60.5; 25.11.15). He then made an adjustment for the difference in the floor area between the Warnbro McDonald's and the proposed development. On the basis of his methodology, Mr Martin determined the likely traffic generation of the proposed development to be 2,533 vehicle trips per day.

50 Mr Yapp applied Mr Riley's methodology with a variation. The variation was that he only conducted, or caused to be conducted, a survey at the existing Applecross McDonald's on a Thursday morning from 7.25 am to 8.55 am, on the basis that, at that time, the Chicken Treat and the Domino's Pizza fast food outlets, which adjoin McDonald's, were not operating. Mr Yapp applied the same transaction ratios applied by Mr Riley. On the basis of his methodology, Mr Yapp determined the likely traffic generation of the proposed development to be 2,769 vehicle trips per day.

51 Given that the likely traffic generation of the proposed development determined by each of the expert witnesses is similar, it is unnecessary to decide which of their methodologies is to be preferred. The difference between the highest traffic generation (Mr Yapp, 2,769 vehicle trips per day) is only 102 vehicle trips higher than the second highest (Mr Riley, 2,667 vehicle trips per day) and only 236 vehicle trips higher than the lowest (Mr Martin, 2,533 vehicle trips per day). Thus, the highest of the figures is less than 10% more than the lowest. In our view, nothing turns on this difference. The correct and preferable decision in this case would be the same, whichever of the traffic engineers' methodology and traffic generation is preferred.

52 There was a difference of opinion between the traffic expert witnesses as to whether the fact there would be 60% more seats in the proposed development (96 seats), as compared with the existing Applecross McDonald's (60 seats), would result in an increase in the number of vehicle trips per day generated by the proposed development, as compared with the existing Applecross McDonald's. Mr Yapp gave evidence that 'I do believe that the new store is bigger and will generate more traffic' (T:81.8; 25.11.15). In contrast, Mr Riley expressed the opinion that 'I do not believe there is going to be a significant rise in customer numbers in the relocated Applecross store' (T:83.8; 25.11.15), because it is a 'store relocation' (T:63.7; 25.11.15), in which 'the attraction and the catchment from McDonald's is the same' (T:64.6; 25.11.15), and because 'the Applecross store, compared to other McDonald's stores that I do have customer numbers for, is quite a high trader and I suspect that it is probably overtrading at the present time' (T:83.9; 25.11.15). Mr Riley also said that 'when I have undertaken surveys of the [existing Applecross McDonald's] store, particularly, on a Saturday, there would appear to be a lot of people standing, and, whilst there are spare seats available, there are many people who use McDonald's on a single or a couples basis who do not want to share a table' (T:70.5; 25.11.15). Mr Riley was not cross­examined in relation to this evidence and no contrary evidence was presented by the respondent.

53 Given that the proposed development involves, in effect, the relocation of the existing, established McDonald's restaurant and drive­through facility in Applecross, which has an existing catchment and market and which is 'quite a high trader … [and is] probably overtrading at the present time' (T:83.9; 25.11.15), we accept Mr Riley's evidence that the 60% increase in the number of seats between the existing Applecross McDonald's and the proposed development is not likely to lead to a significant increase in the number of vehicle trips generated by the proposed development, in comparison to the existing Applecross McDonald's. Furthermore, if there is any increase in traffic generation as a result of the increased seating capacity of the proposed development, in comparison with the existing Applecross McDonald's, outside of peak mealtimes, it is likely that that additional traffic would be from/to Canning Highway and would not affect the residential area to the north of the site. Mr Riley gave evidence in this regard that 'you tend to find that the ­ outside of those mealtimes is generally passed ­ by traffic' and 'once you get past seven o'clock in the evening, the majority of trade attracted into the McDonald's store will be coming from the Canning Highway' (T:15.2; 26.11.15). Mr Martin agreed 'that outside of peak times, outside of trips otherwise made, we ­ I would expect ­ the majority of traffic will be from Canning Highway and back to Canning Highway, particularly in the evenings and overnight' (T:15.6; 26.11.15). Mr Yapp said that he and the other witnesses 'have different opinions' (T:15.4; 26.11.15) on this aspect, but did not expand on the reason why. Having regard to Mr Riley's extensive experience as a traffic engineer, including in relation to the characteristics of McDonald's restaurants and drive-through facilities, and that his evidence was supported by Mr Martin in this respect, we find that, outside peak mealtimes, most vehicular traffic generated by the proposed development would be from/to Canning Highway and not from/to the residential area to the north.

54 There was a difference of opinion between the expert witnesses in relation to the likely proportion of vehicle trips per day generated by the proposed development that would access the site from/exit to the residential area to the north, rather than from/to Canning Highway to the south. Mr Riley gave evidence that approximately 28.5% of vehicles accessing or exiting the proposed development would be from/to the residential area to the north. Mr Riley derived this figure of 28.5% by averaging the 20% of traffic he found in his survey to be entering the existing Applecross McDonald's on Sleat Road from the north and the 37% of traffic that he found to be exiting the existing Applecross McDonald's to the north. However, Mr Riley gave evidence that 'the 37 per cent is very likely to be an overestimation, purely because of the access arrangement at the existing McDonald's store, which prohibits right turns back to Canning Highway from the McDonald's access' (T:112.7; 25.11.15). Twenty­eight point five per cent of Mr Riley's estimated traffic generation from the proposed development of 2,667 vehicle trips per day equates to 760 vehicle trips per day from/to the residential area to the north.

55 Mr Martin coincidentally also arrived at the same number of 760 vehicle trips per day from/to the residential area to the north. However, he arrived at that number on a different basis. Mr Martin viewed a 'heat map' showing the results of surveys undertaken at the existing McDonald's Applecross premises as to where customers live. Approximately 70% of customers lived in Applecross and contiguous areas shown on the heat map. Mr Martin said that 'of the remaining 70 per cent, from a visual inspection only, it would appear that approximately 50 per cent of that very local area would be ­ so that the dark red splodge that's on either side of Canning Highway, approximately 50 per cent of that is associated with properties ­ residential locations to the north' (T:115.5; 25.11.15). On the basis of this 'visual assessment' of 'the dark red splodge', Mr Martin concluded 'that it would be in the range of 30 per cent' from/to the residential area to the north of the site.

56 Mr Yapp gave the following evidence in relation to this aspect:

My feeling is that off peak they ­ they aren't going to be commuter trips, and they're much more ­ many more of them, a higher proportion of them, are going to be local trips from local homes to McDonald's and back home again. Something along those lines. In that case, the ones that are north of the site are going to be generating two trips each. One to get there and one to get back. So I feel the proportion will change through the day, and therefore I've just added another 10 per cent. I've taken 40 per cent, rather than 30.

(T:117.9­118.1; 25.11.15)

57 Forty per cent of Mr Yapp's estimate of 2,769 vehicle trips per day generated by the proposed development equates to 1,108 vehicle trips per day from/to the residential area to the north.

58 We prefer the evidence of Mr Riley over that of Mr Martin and over that of Mr Yapp in relation to the likely proportion of vehicle trips per day generated by the proposed development from/to the residential area to the north. Mr Riley's estimate of 28.5% is based on actual surveys of vehicles entering and exiting the existing Applecross McDonald's premises from and to the north. Although the existing Applecross McDonald's is located approximately 400 metres to the east of the site, given the geography of Applecross north of Canning Highway (a peninsula at the congruence of the Swan and Canning Rivers) and the street pattern in that area, it is likely that the proportion of vehicles that would access/egress the proposed McDonald's on the site from/to the residential area to the north via Reynolds Road would be the same as the proportion of vehicles accessing/egressing the existing Applecross McDonald's from/to the residential area to the north via Sleat Road. Although Mr Martin adopted a similar percentage (30%), and coincidentally arrived at the same number (760 vehicle trips per day), we prefer Mr Riley's approach, as it is more scientific than visually assessing 'the dark red splodge' on the 'heat map'. We also prefer Mr Riley's evidence to Mr Yapp's evidence in this respect, because Mr Yapp's estimate of 40% of vehicles from/to the residential area to the north has no empirical or other scientific basis and, indeed, is inconsistent with Mr Yapp's own survey which found that only 23% of vehicles entering the existing Applecross McDonald's premises between 7.25 am and 8.55 am on a Thursday came from the north (Mr Yapp chose not to count the number of vehicles exiting the existing Applecross McDonald's premises to the north).

59 We, therefore, find that the likely proportion of vehicle trips per day generated by the proposed development from/to the residential area to the north of the site is 28.5%, although we note that this percentage may overstate the actual proportion from/to the north, because it is based on an average of the percentage of the surveyed vehicles entering/exiting the existing Applecross McDonald's premises from/to the north and the 37% found in that survey to be leaving to the north 'is very likely to be an overestimation, purely because of the access arrangements at the existing McDonald's store, which prohibits right turns back to Canning Highway from the McDonald's access (T:112.7; 25.11.15). Applying 28.5% to the expert witnesses' respective estimates of traffic generation of the proposed development means that the number of vehicle trips per day generated by the proposed development from/to the residential area north would be 722 (Mr Martin), 760 (Mr Riley) or 789 (Mr Yapp).

60 Adding the existing volume of 2,032 vehicles per day in Reynolds Road, if the proposed development were approved, there are likely to be 2,754 (Mr Martin), 2,792 (Mr Riley) or 2,821 (Mr Yapp) vehicles in Reynolds Road between the site and Macrae Road to the north. Again, nothing in this case turns on which of these figures is preferred. Although the increase in traffic generated by the proposed development is likely to be noticeable in Reynolds Road between the site and Macrae Road, the total amount of traffic in Reynolds Road to the north of the site if the proposed development were approved would still be within the 'maximum desirable volume' of 3,000 vehicles per day for an access road under the Main Roads WA road hierarchy. The proposed development would therefore have an acceptable impact in terms of traffic amenity, safety and convenience in Reynolds Road to the north of the site.

61 Furthermore, as Mr Riley observed, the rezoning of the site and of the rest of the Reynolds Road Precinct in August 2013 gave rise to 'an expectation there's going to be traffic increase on Reynolds Road' (T:16.2; 26.11.15). The increase in traffic in Reynolds Road north of the site that would be generated by the proposed development is within the reasonable contemplation of the relatively recent rezoning of the site and of the rest of the Reynolds Road Precinct. As noted earlier, the Statement of Intent for the Reynolds Road Precinct under the Scheme is 'To provide for a limited range of retail, personal and commercial services to meet the daily needs of local residents'. Local residents who have their daily needs met in the Reynolds Road Precinct would need to get to and from the Reynolds Road Precinct. As the traffic expert witnesses all agreed, traffic generated by the proposed development from/to the residential area to the north would be local residents. That the increase in traffic from/to the residential area to the north generated by the proposed development is within the reasonable contemplation of the Scheme is a further reason why the proposed development would have an acceptable impact in terms of traffic amenity, safety and convenience in Reynolds Road to the north of the site.

62 Mr Yapp gave evidence that the proposed development would 'add 24­hour commercial traffic onto that residential road [that is, Reynolds Road north of the site], and that doesn't occur in those same peaks' at the moment (T:10.1; 26.11.15). However, the existing BP petrol filling station and convenience store, which operates 24 hours a day, seven days a week, would also be accessed by local residents who live to the north of Canning Highway via Reynolds Road. Traffic going to or from the BP property is '24­hour commercial traffic [on] that residential road'. Furthermore, the existing planning framework does not seek to limit the hours of operation of developments in the Reynolds Road Precinct. Thus, the rezoning of the Reynolds Road Precinct in August 2013 reasonably contemplated the potential addition of '24­hour commercial traffic onto that residential road'. However, the total amount of traffic on Reynolds Road north of the site, including existing traffic and the traffic likely to be generated by the proposed development, is still within the maximum desirable volume for an access road.

63 Specifically in relation to increased risk to pedestrians and cyclists in Reynolds Road, Mr Yapp gave evidence that:

We're not talking about, you know, a massive safety issue that you can do something about. We're talking about an increase exposure to risk, rather than increased risk itself.

(T:48.2; 26.11.15)

64 However, the increased exposure to risk as a consequence of the proposed development is still within the reasonable contemplation of the maximum desirable volume for an access road north of the site and within the reasonable contemplation of the Scheme since the rezoning of the site in August 2013.

65 The Tribunal also finds that the proposed development is acceptable in terms of traffic amenity, safety and convenience in relation to the portion of Reynolds Road between the proposed entry/exit for vehicles to and from and site and Canning Highway, and in relation to the Reynolds Road and Canning Highway intersection.

66 As 28.5% of vehicle trips per day generated by the proposed development are likely to be from/to the residential area to the north of the site, 71.5% of vehicle trips per day are likely to be from/to Canning Highway to the south. Applying the estimated traffic generation of the proposed development determined by each of the expert witnesses, this means that the number of vehicle trips per day generated by the proposed development from/to Canning Highway would be 1,811 (Mr Martin), 1,907 (Mr Riley) or 1,979 (Mr Yapp). Adding the existing volume of traffic in Reynolds Road of 2,032 vehicle trips per day, if the proposed development were approved, there would be 3,843 vehicle trips per day (Mr Martin), 3,939 vehicle trips per day (Mr Riley) or 4,011 vehicle trips per day (Mr Yapp) in the section of Reynolds Road between the entry/exit to the proposed development and Canning Highway. Again, nothing in this case turns on which of these figures is preferred. Although the number of vehicle trips per day in this section of Reynolds Road would exceed the maximum desirable volume for an access road by about one­third, the Tribunal considers that the level of traffic that would be generated by the proposed development in this section of Reynolds Road and at the intersection with Canning Highway is acceptable from a traffic amenity, safety and convenience perspective, given the significantly different physical characteristics of Reynolds Road in this section in comparison to the rest of the road and given that this section abuts land that is zoned Community Centre and is used for commercial purposes. As Mr Martin said in evidence:

I would say with respect to the street form and function to the south of the site, that it operates in an entirely different manner. It's providing access almost exclusively to BP lot and to the McDonald's lot, and there is accommodation at the signals to allow for additional traffic, so I would consider all of those numbers to be acceptable ­ acceptable in that area.

(T:17.8; 26.11.15)

67 Mr Riley gave the following evidence:

I would concur with Mr Martin's view that the street width and function from Reynolds Road on the approach of the traffic signals, it has two southbound lanes and a very wide northbound lane. It has ample capacity and does not function as a residential street based on the two commercial land uses either side that are existing.

(T:17.9; 26.11.15)

68 Mr Yapp then gave the following evidence:

I don't disagree to any large extent, except obviously it is still categorised as an access road and it is significantly above 3,000.

(T:18.1; 26.11.15)

69 Peak hour analysis using the SIDRA program in Mr Riley's Traffic Impact Assessment indicates that the proposed development would not have a significant detrimental impact on the operation of the traffic signals at the Canning Highway/Reynolds Road intersection. Analysis of forecast queue lengths show no negative impacts on the Canning Highway turn lanes into Reynolds Road. Forecast queue lengths to Reynolds Road (north) indicate that some occasional obstruction of the proposed McDonald's vehicular entry/exit may occur as, at the start of the green signals at the intersection, the queue length in Reynolds Road approaching Canning Highway would increase as a result of the proposed development in the morning peak by one vehicle length from approximately 53 metres to approximately 59 metres from the intersection. However, as Mr Riley said in evidence, this 'marginal increase' to queuing in the morning peak would have 'no significant impact to the operation of the intersection' (T:19.4; 26.11.15), because there is sufficient time for the whole of the queue to clear during each traffic light cycle.

70 Mr Yapp did not disagree with Mr Riley's SIDRA analysis, but commented that it 'has been analysed as an isolated intersection with, basically, free flow from all directions towards that intersection' (T:32.5; 26.11.15), whereas, in reality, traffic movements would be more complicated, because some vehicles would be entering or exiting the BP site and vehicles exiting the proposed McDonald's 'haven't just got to find a gap in the queue, they have to also cross the through traffic coming up from the south' (T32.3; 26.11.15).

71 However, as Mr Riley said in evidence, the signalisation of the Canning Highway/Reynolds Road intersection is such that when vehicles are proceeding south from Reynolds Road into the intersection, no traffic may enter from the intersection north into Reynolds Road. Consequently, during the cycle that allows vehicles to proceed south into the intersection from Reynolds Road, vehicles exiting the proposed McDonald's development in the direction of Canning Highway would not have to compete with vehicles driving north in that location. Furthermore, as Mr Riley explained:

And driver behaviour ­ queuing past access of developments is very common throughout the metropolitan area and driver behaviour will make the situation work that people will leave gaps if people are turning into McDonald's they are likely to yield to people coming out of McDonald's. It's not an unusual situation.

(T:34.6; 26.11.15)

72 On the basis of this evidence, we find that the proposed access/egress arrangements for the development are not unusual in the metropolitan area and will enable vehicles to enter and exit the proposed development in an acceptable manner.

73 Mr Yapp also gave evidence about crash history in the location of the Canning Highway/Reynolds Road intersection. That intersection recorded 96 crashes within 30 metres of the intersection, during the five year period from 2009 to 2014, making it the 165^th worst intersection for vehicular crashes out of 14,000 intersections at which at least one crash has been recorded in the Main Roads WA database of crash history at intersections. Mr Yapp said that 54 of the 96 crashes recorded at the Canning Highway/Reynolds Road intersection were rear end crashes on Canning Highway, 'primarily involving vehicles turning left into Reynolds Road'.

74 However, even assuming that none of the vehicle trips generated by the proposed development would already be on Canning Highway (which is extremely unlikely given that the development would replace an existing McDonald's, 400 metres to the east), introducing less than 2,000 vehicle trips per day to a road already conveying in excess of 45,000 vehicle trips per day would be a relatively minor increase of less than 5%. Furthermore, Mr Riley's Transport Impact Assessment shows that increased queuing on Canning Highway turning right into Reynolds Road from the east generated by the proposed development would still be located within the designated turning lane (there is no designated turning lane for traffic turning left into Reynolds Road from the west). Notwithstanding that the Canning Highway/Reynolds Road intersection is ranked as 165^th in the list of the worst intersections in the State according to Main Roads WA, the proposed development therefore does not give rise or contribute to a risk of vehicular crashes such as would warrant its refusal.

75 Finally, in relation to traffic issues, in a letter dated 25 May 2015 to the City, Main Roads WA indicated that it has no objection to the proposed development, subject to the imposition of six conditions (which are not contested). The letter also contained three 'advice notes'. The final advice note was as follows:

The ultimate Planning Design Concept at Reynolds Road and Canning Highway intersection provides a solid median along Reynolds Road across the subject site. The ultimate access from the subject site to/from Reynolds Road will be restricted to left­in and left­out only.

76 Similarly, in a letter to the City dated 21 October 2015, Main Roads WA stated as follows:

It should be noted that the 'left in/left out' access would only be allowed from Reynolds Road in the future when Main Roads longer term works are completed at the Canning Highway/Reynolds Road intersection. This may have significant impacts on the development and on local traffic movements.

77 However, significantly, Main Roads WA did not propose the imposition of a condition of development approval on the proposed development that would restrict it to left in/left out entry and exit. An 'advice note' is not a condition of developmental approval and has 'no statutory status' under the PD Act: Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [78].

78 The traffic expert witnesses commented on the 'ultimate Planning Design Concept' referred to in the advice note and explained that it relates to a potential 'duck and dive' upgrade of Canning Highway which would involve the gradient separation of a through part of the highway from side streets and potentially from other parts of the highway. Each of the traffic expert witnesses considered that such a proposal is 'uncertain'. Furthermore, Mr Yapp expressed the opinion that 'I personally struggle to see how they will fit a duck and dive within that area that they show' (T:56.8; 26.11.15) and that, to create a sufficient gradient separation between Canning Highway and Reynolds Road, there would have to be a ramp created within Reynolds Road which would, in itself, preclude vehicular access to and from the site. Mr Yapp, therefore, said that the question of whether there would ever be a median separation in Reynolds Road that would preclude right in/right out traffic movements to and from the site is 'moot' (T:58.5; 26.11.15). Mr Riley agreed. On the basis of Mr Yapp's and Mr Riley's evidence on this point, the Tribunal does not consider that a median separation on Reynolds Road precluding right in/right out traffic movements to and from the site is likely, and consequently, the 'ultimate Planning Design Concept at Reynolds Road and Canning Highway intersection' referred to in Main Roads WA's advice note does not warrant refusal of the proposed development or require the imposition of any particular condition of development approval.

79 As noted earlier, on 7 October 2015, the residents of 23 properties in Reynolds Road, Macrae Road and Glenelg Street were granted leave by the Tribunal, pursuant to s 242 of the PD Act, to make a submission in relation to the traffic impacts and consequences of the proposed development. The residents did so in the form of an amended submission filed on 23 October 2015 which became Exhibit 16 in the proceeding (s 242 submission).

80 The residents submit in the s 242 submission that 'the volume of traffic in Reynolds Road and surrounding neighbourhood streets will increase significantly' as a result of the proposed development. This submission is correct in relation to Reynolds Road between Canning Highway and Macrae Road. The amount of traffic in Reynolds Road north of the site is likely to increase by about 35% (on Mr Martin's estimated traffic generation) ­ 39% (on Mr Yapp's estimated traffic generation) and the amount of traffic in Reynolds Road south of the proposed vehicular entry/exit to and from the site until the Canning Highway intersection is likely to increase by about 100%. However, as found earlier, the significant increase in traffic in Reynolds Road as a result of the proposed development is acceptable in terms of traffic amenity, safety and convenience, assessed in terms of the current planning framework. If the proposed development were approved, the amount of traffic in Reynolds Road north of the site would be less than the maximum desirable volume for an access road under the Main Roads WA road hierarchy and is reasonably contemplated by the rezoning of the site and of the rest of the Reynolds Road precinct in August 2013. Although the amount of traffic between the proposed entry/exit to and from the site and the intersection of Canning Highway and Reynolds Road would be about one­third more than the maximum desirable volume for an access road, the physical nature and characteristics of Reynolds Road in that section is fundamentally different to the rest of Reynolds Road and, in that context, the significant increase in traffic in that area is acceptable in terms of traffic amenity, safety and convenience.

81 The residents also submit in the s 242 submission that the increased volume of traffic on Reynolds Road and surrounding neighbourhood streets 'would create safety issues for cyclists, motorists, pedestrians and local residents, including in relation to the Applecross Primary School (which is located to the north of the subject land at the end of Reynolds Road)'.

82 As noted earlier, Mr Yapp gave evidence that the increase in volume of traffic on Reynolds Road will not give rise to 'a massive safety issue', although there will be 'an increased exposure to risk' (T:48.2; 26.11.15). Given that the total volume of traffic in Reynolds Road north of the site would be less than the maximum desirable volume, the increased exposure to risk for cyclists, motorists, pedestrians and local residents is within the contemplation of the Main Roads WA road hierarchy designation of an access road. Furthermore, although Macrae Road carries a significant number of cycling trips per day, and the introduction of approximately 722 - 789 vehicle trips per day at the Reynolds Road/Macrae Road intersection would increase cyclists' exposure to risk in that location, given the contemplation of the road designation, this does not warrant refusal of the proposed development. Furthermore, although Mr Yapp raised a concern in relation to the exposure of cyclists 'to a much higher risk of conflict both along [Reynolds Road and Macrae Road], and critically, at the small roundabout where they intersect', he agreed during concurrent evidence that the width of the roundabout at Reynolds Road/Macrae Road would not allow both a vehicle and a bicycle to proceed together on the roundabout. If a bicycle is already on the roundabout, a vehicle would have to wait for the bicycle. Significantly, drivers in Reynolds Road heading north are alerted to the use of Macrae Road by cyclists by a painted bicycle and arrow pointing both ways on the road surface of Reynolds Road approaching the roundabout at the intersection.

83 Finally, although it is correct that the Applecross Primary School is located at the end of Reynolds Road, to the north of Kishorn Road, Mr Riley gave evidence, which was not questioned or contradicted, that 'the catchment for the primary school actually finishes at Canning Highway which would make sense and therefore the level of children actually walking on this section of Reynolds Road and potentially sections to the north of Reynolds Road and north of Macrae Road, I would expect to be quite low' (T:49.3; 26.11.15). As the Applecross Primary School catchment ends at Canning Highway, it is unlikely that there would be schoolchildren walking past the site on their way to or from the Applecross Primary School.

84 The residents submit in the s 242 submission that 'the introduction of a high use vehicle crossover on the subject land will create safety issues for pedestrians who use the existing footpath along the western side of Reynolds Road (especially in the case of children and parents walking to the nearby primary school)'. However, given that the catchment of the primary school ends at Canning Highway, it is unlikely that children or parents will walk across the vehicular crossover of the site on their way to or from the Applecross Primary School. Although other pedestrians may use the existing footpath along the western side of Reynolds Road and have to cross the vehicular entry/exit to and from the proposed development, the Tribunal does not consider that this warrants refusal, because, as Mr Riley said in evidence, there is 'good visibility provided with the crossover so as I mentioned before if you can see it you can react' (T:51.9­52.1; 26.11.15).

85 The residents also submit in the s 242 submission that 'the residents in the properties within close proximity to the subject land will suffer as a consequence of frequent vehicle movements on the subject land (proposed to be 24 hours per day, seven days a week), such as in relation to noise of vehicles idling and music playing in vehicles as they wait at the proposed drive-through'. However, as noted earlier, the applicant called expert acoustic evidence, which was not questioned or contradicted by the respondent, that noise emissions from the development can meet the noise limits set out in the Noise Regulations.

86 The residents submit that 'the volume of traffic turning onto Canning Highway from Reynolds Road would increase significantly, which would result in longer queues of traffic along Reynolds Road leading up to the intersection, which in addition to traffic issues would have an impact on the ability of local residents to use and access their properties, and impact on their wellbeing and the amenity of the locality'. However, as Mr Yapp said, queuing from the Canning Highway intersection to the residential area north of the site is not 'going to be a major regular issue' (T:53.9; 26.11.15), if the proposed development were approved. Furthermore, Mr Riley's evidence shows that, if the proposed development were approved, the southbound queue at the Canning Highway intersection is likely to clear with each cycle. Therefore, the proposed development will not have an adverse impact on the ability of local residents to use and access their properties, or on their wellbeing. The amenity impacts of the development on the locality by reason of traffic are acceptable for reasons discussed earlier.

87 The residents submit in the s 242 submission that 'the significantly increased volumes of traffic [on] Reynolds Road and surrounding neighbourhood streets could reasonably be expected to impact on the amenity of the locality, as a consequence of the noise emissions and concerns with regard to compromised safety associated with the increased traffic volumes'. Certainly, the significantly increased volume of traffic on Reynolds Road as a result of the proposed development would have an impact on the amenity of the locality. However, the impact on the amenity of the locality as a consequence of traffic generated by the proposed development is within the reasonable contemplation of the designation of Reynolds Road as an access road and within the reasonable contemplation of the rezoning of the site and the rest of the Reynolds Road Precinct in August 2013.

88 The residents also submit in the s 242 submission that 'given the proposed 24 hour operation of the proposal, the movement of vehicles exiting the subject land driving along Reynolds Road and driving around the roundabout at Macrae Road can be expected to result in headlights being shone into residents' living spaces during night-time hours'. This is correct. However, as Mr Yapp said, 'it's probably an existing issue which will be multiplied by the extra traffic' (T:54.9; 26.11.15). As Mr Martin said, although the statement in the submission 'is probably true for a short section of Reynolds Road between the site access point and the roundabout at Macrae Road, the vast majority of that traffic, what component is associated with the local neighbourhood, is already in that local neighbourhood as a result of the Sleat Road store and therefore, while there will be some residents who receive more potential headlight glare, there will also be residents that receive less because traffic has been redistributed' (T:55.2-4; 26.11.15). Furthermore, as Mr Riley said, 'the majority of traffic associate with McDonald's during night time periods will be accessed from Canning Highway … [and so] the additional vehicles creating this issue, I think it's going to be very low' (T:55.5; 26.11.15).

89 The residents submit that 'the increased quantity of vehicle movements through residential areas may require the City of Melville to impose street parking controls to accommodate the generated traffic, which would come at the expense of the residents being able to enjoy their existing rights in relation to street parking'. However, there is no evidence that the traffic generation of the proposed development cannot be accommodated within the proposed carpark.

90 Finally, the residents submit in the s 242 submission that 'the amenity impact associated with the traffic generated from the proposed development could reasonably be expected to reduce the values of properties owned by the residents in the locality (especially for those properties located within close proximity to the subject land)'. However, there is no evidence that supports this submission. In any case, a reduction in land values is not a relevant planning consideration.

Draft LPS 6

91 If the Tribunal considers that it is relevant to the proposed development, then cl 67(b) of the deemed provisions requires the Tribunal to have due regard to the following:

the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving[.]

92 In the recent decision of Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134, the Tribunal held as follows at [198] ­ [206]:

198 Clause 67(b) of the deemed provisions gives legislative force and expression to the so­called 'Coty principle' which derives its name from the decision of the Land and Valuation Court of New South Wales in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 (Coty). As the Tribunal said in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls) at [40], the Coty principle 'has been followed or applied in a large number of cases, including in each Australian State'. As the Tribunal said in Nicholls at [41], the Coty principle was established in the following two paragraphs of Hardie J's decision in Coty at 125 ­ 126:

It is important, in the public interest, that whilst the respondent Council's local scheme is under consideration this Court should, in the exercise of its appellate jurisdiction under cl 35 of the County Ordinance, avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important, in the public interest, that during that period this Court should, in the exercise of the jurisdiction referred to, arrive at its judgment, so far as possible, in consonance with the town planning decisions which have been embodied in the local scheme in the course of preparation.

An approval in this case for a new, large and permanent industrial building on the land the subject of this application would, in my opinion, having regard to the circumstances of the case and the special features and town planning difficulties of the area, cut across to a substantial degree the considered conclusion of the respondent Council and its town planning committee that the whole of the block should be zoned "Residential ­ Class C". Further, it would make the ultimate decision more difficult in that the erection of the new factory would so disturb the existing balance and proportion of residential and non-residential development and user in the block that the Minister would be faced with the task of making a decision on a set of facts substantially different from that existing when the Council dealt with the matter.


199 In Nicholls at [45], the Tribunal held as follows:

It appears that, when a draft planning instrument or policy or a draft amendment to a planning instrument or policy is raised for consideration in relation to a subdivision or development application, the planning consent authority or appeal tribunal must undertake four stages of inquiry. The four stages are as follows:

(1) In jurisdictions where there is no statutory requirement to take into consideration a draft planning instrument or policy or a draft amendment to a planning instrument or policy once it has reached a certain specified stage, the authority or tribunal must consider whether the draft constitutes a seriously-entertained planning proposal. If it determines that it is a seriously-entertained planning proposal, it is a relevant matter for consideration in relation to the planning assessment.

(2) If the draft is a relevant matter for consideration, the authority or tribunal must consider the extent to which the application before it is consistent with the planning objective or planning approach embodied or reflected in the draft. In particular, the authority or tribunal must consider whether the approval of the application is likely to impair the effective achievement of the planning objective or planning approach embodied or reflected in the draft or is likely to render more difficult the ultimate decision as to whether the draft should be made or its ultimate form.

(3) The authority or tribunal must consider the weight to be accorded to the consistency or otherwise between the application and the draft.

(4) The authority or tribunal must weigh its conclusions in relation to the foregoing matters in the balance along with all other relevant considerations relating to the application, and determine whether, in light of all relevant considerations, it is appropriate in the exercise of planning discretion to grant approval to the application and, if so, subject to what conditions.


200 Clause 67(b) of the deemed provisions is a 'statutory requirement to take into consideration a draft planning instrument … or a draft amendment to a planning instrument … once it has reached a certain specified stage' adverted to at [45(1)] of Nicholls. The stage specified in cl 67(b) of the deemed provisions when a proposed local planning scheme or an amendment to the applicable local planning scheme becomes a relevant matter for consideration is 'that [it] has been advertised' under the LPS Regulations. Consequently, the first stage of the four stage inquiry described in Nicholls at [45] has been overtaken in relation to development assessment under a local planning scheme in Western Australia in the case of a draft local planning scheme or a draft amendment to the applicable local planning scheme.

201 If there is a relevant proposed local planning scheme or a relevant amendment to the applicable local planning scheme that has been advertised under the LPS Regulations, then it is no longer necessary or appropriate to inquire as to whether the proposed local planning scheme or amendment to the applicable local planning scheme is a 'seriously­entertained planning proposal' in order for it to be a relevant matter for consideration in the exercise of planning discretion. (Indeed, the expression 'seriously­entertained' is now otiose in development assessment under a local planning scheme in Western Australia in relation to such a planning proposal). Rather, any relevant proposed local planning scheme or amendment to the applicable local planning scheme 'that has been advertised' under the LPS Regulations is automatically a relevant matter for consideration in the exercise of planning discretion and is to be given 'due regard' under cl 67 of the deemed provisions.

…

205 In relation to the third stage of the four stage inquiry described by the Tribunal in Nicholls at [45] ('the weight to be accorded to the consistency or otherwise between the application and the draft'), having reviewed authorities in Western Australia and New South Wales, the Tribunal said in Nicholls at [59] that the authorities 'together identify the four principal criteria which should be utilised to determine the weight which should appropriately be given to a draft planning instrument or policy or a draft amendment to such an instrument or policy in a planning assessment or appeal'. The Tribunal then said:


These criteria are:

(1) The degree to which the draft addresses the specific application.

(2) The degree to which the draft is based on sound town planning principles.

(3) The degree to which its ultimate approval could be regarded as 'certain'.

(4) The degree to which its ultimate approval could be regarded as 'imminent'.


206 These four criteria have been referred to and applied in many decisions of this Tribunal in the decade since Nicholls. The four criteria remain the principal criteria to be applied when the planning consent authority or the Tribunal on review is required under cl 67(b) of the deemed provisions to have 'due regard' to a proposed local planning scheme or amendment to the applicable local planning scheme that has been advertised under the LPS Regulations or to any other proposed planning instrument that the local government is seriously considering adopting or approving. However, the list of criteria or considerations in relation to weight is not closed. Other considerations may be relevant in a particular case.

93 Draft LPS 6 has been publicly advertised and is, therefore, a relevant matter for consideration in the exercise of planning discretion. The Tribunal is required by cl 67(b) of the deemed provisions to have 'due regard' to draft LPS 6 in this review.

94 However, as noted earlier, draft LPS 6 has been through four versions to date and, as Mr Prendergast said in evidence, it 'has certainly been through a journey with the introduction of the new regulations' (T:101.6; 26.11.15). Mr Prendergast explained that version 1, which was the advertised version, was 'framed to include a range of commercial centre zones, within which a differentiated approach to land use permissibility could be applied'. In particular, it was proposed to include the site in the Local Centre zone. Under the Zoning Table in version 1 of draft LPS 6, the symbol which appeared at the cross-reference of the 'Fast Food Outlet' use class and the Local Centre zone was 'D/X¹'. In version 1 of draft LPS 6, the following text appeared after the Zoning Table:

1. Fast Food Outlets which incorporate a drive-through ordering and/or pick­up facility are an "X" use in the Neighbourhood Centre and Local Centre Zones.

95 The symbol 'X' when used in the Zoning Table means that the use is not permitted by the scheme.

96 Mr Prendergast explained that, during the period between the close of advertising in relation to draft LPS 6 and the report on submissions to the Council of the City, changes to the Model Scheme Text were proposed under the then draft version of what later became the LPS Regulations. Those changes rationalised the zones that could be applied in the context of a local planning scheme and introduced a Mixed Use zone to replace the various commercial centre zones that applied under the former Model Scheme Text. Mr Prendergast said that 'the rationalisation of the zones within the Model Scheme Text meant that a differentiated approach to land use permissibility within Commercial Centre Zones was more difficult to implement'. Despite this difficulty, the City redrafted draft LPS 6 to reflect the new Model Scheme Text. Version 2 was in this form and was adopted by the Council of the City in May 2015.

97 Version 2 of draft LPS 6 proposed to zone the site Mixed Use and the Zoning Table in version 2 of draft LPS 6 cross-referenced the 'Fast Food Outlet' use class and the Mixed Use zone with the symbol 'D*'. In version 2, the asterisk indicated, according to text under cl 18 in relation to the interpretation of the Zoning Table, 'that the development (including use) may be subject to a specific Scheme provision and/or policy, which may impose restrictions with reference to site suitability criteria, positioning on site or the amount or proportion of land or floorspace allocated to the particular use'. The text under cl 18 also included the following:

1. Fast Food Outlets which incorporate a drive-through ordering and/or pick-up facility are an "X" use in the Neighbourhood Centre and Local Centre Zones.

However, this text was arguably not relevant to a fast food outlet which incorporates a drive-through facility in the Mixed Use zone, both because it was referenced with the numeral '1' (rather than with an asterisk) and because it referred to the Neighbourhood Centre and Local Centre zones (rather than to the Mixed Use zone).

98 Version 3 of draft LPS 6 was a redraft of version 2, apparently undertaken by the City's staff without reference back to the Council of the City. Relevantly, in the Zoning Table in version 3 of draft LPS 6, the symbol at the cross-reference of the 'Fast Food Outlet' use class and the Mixed Use zone changed from 'D*' (version 2) to 'D¹' (version 3). The text under cl 18 of version 3 of LPS 6 in relation to the interpretation of the Zoning Table included the following:

1. Fast Food Outlets which incorporate a drive-through ordering and/or pick-up facility are an "X" use in the Neighbourhood Centre and Local Centre Zones.

However, this text was arguably not relevant to a fast food outlet which incorporates a drive-through facility in the Mixed Use zone, because it referred to the Neighbourhood Centre and Local Centre zones (rather than to the Mixed Use zone).

99 Version 3 of draft LPS 6 was forwarded by the City to the Commission on 29 May 2015 for approval by the Minister for Planning. However, Mr Prendergast gave evidence that, subsequently, discussions have taken place between the City and the Commission at an officer level in relation to version 3 of draft LPS 6 and, as a result of those discussions, the City has redrafted draft LPS 6 in the form of version 4 by 're­introducing Centre Zones, each designed to reflect a particular centre type within the SPP 4.2 activity centre hierarchy and/or the existence of an approved Structure Plan, for consideration by the WAPC'. Version 4 of draft LPS 6 also replaces the land use 'Fast Food Outlet' (which was used in versions 1, 2 and 3 of draft LPS 6) with a new land use of 'fast food outlet/lunch bar'. Mr Prendergast gave evidence that version 4 proposes to zone the site C4 Centre ('All neighbourhood and local centres'). In the Zoning Table in version 4 of draft LPS 6, the symbol 'D¹' appears at the cross-reference of the 'fast food outlet/lunch bar' use class and the C4 Centre zone. The following text appears at the end of the Zoning Table in version 4 of draft LPS 6:

Fast Food Outlets which incorporate a drive-through ordering and/or pick-up facility are an ''X'' use in the Centre Zone (C4).

100 During the hearing, the respondent tendered an email from Ms Lee O'Donohue, Planning Manager, Perth and Peel Planning, at the Department of Planning, which states that a report on draft LPS 6 'is scheduled for presentation to the [Statutory Planning Committee of the Commission at its meeting] on 15 December 2015' and that, depending on the outcome of that meeting, 'draft LPS 6 may be presented to the Minister in December 2015 although a January 2016 presentation is more likely'. The Tribunal has not been advised of any further progress in relation to draft LPS 6 between the hearing and the determination of the review.

101 As Ms CA Ide, counsel for the respondent, submitted, the various versions of LPS 6 'evince a long-standing intention ­ certainly at [C]ouncil level – that a drive-through facility as part of a fast food outlet shouldn't be provided for in these lower order centres'. However, as Mr PG McGowan, counsel for McDonald's, submitted, 'the level of uncertainty [in relation to the ultimate form of draft LPS 6] is palpable'.

102 The proposed development is inconsistent with the planning objective or planning approach reflected (although somewhat imperfectly) in various versions of draft LPS 6, insofar as the proposed development incorporates a drive-through component. However, the Tribunal considers that only limited weight should be given to the inconsistency between the proposed development and draft LPS 6 in the circumstances of this case, for the following three reasons.

103 First, there remains significant confusion and uncertainty about the ultimate, relevant form of draft LPS 6. Version 4 has been discussed 'at officer level' between officers of the City and of the Department of Planning. However, the respondent did not call any evidence from any officer of the Department of Planning to clarify the likely final form of draft LPS 6.

104 Secondly, the Tribunal is not satisfied that the prohibition of drive-through facilities in all fast food outlets, in all neighbourhood and local centres, is based on sound town planning principles. Mr Prendergast expressed the opinion that 'a drive-through outlet would be inconsistent with the characteristics and objectives of a local centre … because I consider a drive-through facility, such as is proposed in this case, would attract a customer draw which extends beyond that which you would associate with a local centre' and because 'I consider that a local centre is the type of centre that would generally be more walkable and the range of services on offer in that centre would generally service the needs of a local community and a use such as a drive-through where the transaction – because if a transaction takes place solely within a vehicle and involves no other interaction with any of the services or goods available within the centre, it's just an in and out operation, that doesn't support other services within the centre, doesn't result in any particular interaction with those services, doesn't assist in encouraging shared trips or trips of more than one purpose within the local centre' (T:97.6-98.1; 26.11.15).

105 However, Mr Prendergast's first reason (that a drive-through facility 'would attract a customer draw which extends beyond that which you would associate with a local centre') appears to be inconsistent with his view that the proposed development is consistent with the applicable planning framework under CPS 5, including the Statement of Intent for the Reynolds Road Precinct. As noted earlier, the Statement of Intent for the Reynolds Road Precinct is 'To provide a limited range of retail, personal and commercial services to meet the daily needs of local residents'. If the proposed development is consistent with that objective, as Mr Prendergast said it is, it is not immediately clear why a drive-through facility which both meets the daily needs of local residents and attracts a customer draw which extends beyond the immediate locality would be inappropriate from a town planning perspective in a local or neighbourhood centre. In relation to Mr Prendergast's second reason (the lack of 'interaction with [other] services … [and] assist[ing] in encouraging shared trips or trips of more than one purpose within the local centre'), as Mr Haeren said, while this may reflectsound town planning in relation to 'a local centre … deep within a residential area' (T:99.8; 26.11.15), Mr Haeren's experience 'is that a context on a major arterial road is fundamentally different and to try and create a pedestrian intimate feel in this sort of context is going to be quite a difficult scenario' (T:99.9; 26.11.15). It is arguably not consistent with sound town planning principles to ignore a key locational characteristic of the site and of the Reynolds Road Precinct generally, namely, that it is located on a major arterial road.

106 Thirdly, as the Tribunal is unaware of the view of the Minister for Planning, or even of the Commission, in relation to the proposed prohibition of fast food outlets containing a drive-through component on the site, it cannot be said that the ultimate approval of draft LPS 6 incorporating such a prohibition in relation to the site is reasonably certain or reasonably imminent.

Exercise of planning discretion

107 All of the foregoing considerations must be balanced in the exercise of planning discretion. The Tribunal considers that the proposed development merits conditional development approval, because:

• it is consistent with the applicable planning framework, and in particular, a relatively recent rezoning of the site and of the Reynolds Road Precinct in August 2013;

• it is acceptable in terms of its amenity impacts, including traffic amenity impacts;

• it is acceptable in relation to traffic safety and convenience; and

• although, as it includes a drive­through component, it is inconsistent with the planning objective or planning approach reflected in draft LPS 6, that inconsistency should only be accorded limited weight in the circumstances of this case.

Conclusion

108 The application for review should be allowed and the determination made by the DAP to refuse development approval for a fast food outlet with drive-through facility on the site should be set aside and a decision substituted that development approval is granted subject to conditions.

109 In accordance with the Tribunal's usual practice, the respondent filed a set of draft, 'without prejudice' conditions which the respondent contends should be imposed if the Tribunal considers that approval of the proposed development, subject to conditions, is appropriate. McDonald's responded to the respondent's draft, 'without prejudice' conditions, proposing an amendment to the wording of one condition which was accepted by the respondent. The Tribunal considers that the conditions proposed by the respondent, and agreed to by McDonald's, are appropriate and should be imposed. In addition, a condition should be imposed requiring the development to be carried out in accordance with the amended plans and the proposed angled canopy design proposal for acoustic walls.

Orders

110 For these reasons, the Tribunal makes the following orders:

1. The application for review is allowed.

2. The decision made by the Metropolitan Central Joint Development Assessment Panel on 12 June 2015 to refuse development approval for a fast food outlet with drive-through facility at Nos 844 ­ 846 (Lots 146 and 145) Canning Highway, Applecross is set aside and a decision is substituted that development approval is granted for the proposed development subject to the following conditions:


1. The development is to be carried out in accordance with the following plans and is to incorporate the angled canopy design proposal for acoustic walls outlined in the angled canopy design documents listed below:

Plans

(a) DA02, Rev C, dated 27 October 2015

(b) DA03, Rev C, dated 27 October 2015

(c) DA04, Rev B, dated 20 October 2015

(d) DA05, Rev C, dated 27 October 2015

(e) DA06, Rev D, dated 27 October 2015

(f) DA07, Rev B, dated 25 October 2015

(g) DA08, Rev B, dated 25 October 2015

(h) DA10, Rev D, dated 27 October 2015

(i) DA011, Rev A, dated 27 October 2015

(j) S01, Rev B, dated 27 October 2015

(k) S02, Rev B, dated 25 October 2015

(l) S03, Rev B, dated 25 October 2015

(m) S04, Rev A, dated 12 October 2015

Angled canopy design documents (attached to the orders made by the State Administrative Tribunal on 7 October 2015 in proceeding DR 221 of 2015)

(a) Table 1: Wall requirement description

(b) Figure 1: Site layout showing wall extents and details

(c) Figure 2: Wall canopy section showing absorptive lining

(d) a designer's sketch of the proposed design.


2. All stormwater generated on site is to be retained on site and no stormwater drainage shall be discharged onto the Canning Highway road reserve.

3. No earthwork shall encroach onto the Canning Highway road reserve.

4. No development (including fencing, letter boxes or any other structure) or landscaping over 0.6m in height is to be located within the 1.5m x 1.5m sightline truncation where the vehicle access point meets the road reserve to the satisfaction of the Manager Statutory Planning of the City of Melville.

5. Lighting to be provided to all car parking areas and the exterior entrances to all buildings in accordance with Australian Standard AS 1158.3.1 (Cat. P). All external lighting to be hooded and oriented so that the light source is not directly visible to the travelling public or abutting residences.

6. Prior to commencement of the development, a detailed landscaping and reticulation plan for the subject site and the road verge(s) adjacent to the site shall be submitted to and approved in writing by the Manager Statutory Planning of the City of Melville. The landscaping plan is to include details of (but not limited to):


• The location, number and type of proposed trees and shrubs including size and planting density;

• Any lawns to be established;

• Any existing vegetation and/or landscaped areas to be retained; and

• Any verge treatments.

The approved landscaping and reticulation plan shall be fully implemented within the first available planting season after the initial occupation of the development and maintained thereafter to the satisfaction of the Manager Statutory Planning of the City of Melville. Any species which fail to establish within the first two planting seasons following implementation shall be replaced in accordance with the City's requirements.


7. Prior to the commencement of works, a scheme for the provision of Public Art shall be submitted to and approved in writing by the Manager Statutory Planning of the City of Melville in consultation with the City's Public Art Panel. Once approved, the Public Art shall be provided in accordance with the City of Melville Council Policy - 085: Provision of Public Art in Development Proposals prior to the initial occupation of the development to the satisfaction of the Manager Statutory Planning of the City of Melville. Alternatively, the public art contribution may be satisfied by a cash-in-lieu payment to the value of 1% of the cost of the development, as set out in the Policy Statement 2 of the City of Melville Council Policy - 085: Provision of Public Art in Development Proposals made prior to the commencement of works.

8. A Construction Management Plan is to be prepared by the applicant and submitted to the Manager Statutory Planning of the City of Melville for approval at least 30 days prior to the commencement of works. The Construction Management Plan shall detail how the construction of the development will be managed including the following:


• Public safety and site security;

• Hours of operation;

• Noise and vibration controls;

• Air and dust management;

• Stormwater, groundwater and sediment control;

• Waste and material disposal;

• Traffic management plans for the various phases of construction, including any proposed road closures;

• The parking arrangements for contractors and sub-contractors;

• On-site delivery times and access arrangements;

• The storage of materials and equipment on site (no storage of materials on the verge will be permitted); and

• Any other matters likely to impact upon the surrounding properties or road reserve.

Once approved, the development is to be constructed in accordance with the Construction Management Plan to the satisfaction of the Manager Statutory Planning of the City of Melville.


9. Prior to the initial occupation of the development, a Waste Management Plan shall be prepared in accordance with the City of Melville Council Policy - Waste and Recyclables Collection for Multiple Dwellings, Mixed Use Developments and Non­Residential Developments and submitted in writing for the approval of the Manager Statutory Planning of the City of Melville. Once approved, the development is to be constructed and operated in accordance with the Wast Management Plan to the satisfaction of the Manager Statutory Planning of the City of Melville.

10. Any roof mounted or freestanding plant or equipment shall be located and/or screened so as not to be visible from the surrounding streets prior to the initial occupation of the development to the satisfaction of Manager Statutory Planning of the City of Melville.

11. This decision constitutes planning approval only and is valid for a period of two years from the date of approval. If the subject development is not substantially commenced within the two year period, the approval shall lapse and be of no further effect.

12. Prior to the commencement of the development, the applicant shall enter into a Deed of Agreement with Main Roads Western Australia in respect of the ceding of land for the future widening of Canning Highway, addressing the transfer of land to the Commissioner for Main Roads WA for road improvement purposes.

13. The applicant is to provide a written acknowledgment by way of Notification registered on Title under s 70A of the Transfer of Land Act 1893 (WA) that development is permitted on the basis that no compensation will be sought by the applicant or the applicants successors in respect of the loss of the approved improvements in the portion reserved for road purposes, if and when the identified portion of the land is acquired for any works consistent with the purpose of the reservation.

14. The noise attenuation wall hereby approved shall be implemented in full prior to the initial occupation of the development.

15. No vehicle access shall be permitted to and from the Canning Highway road reserve from the subject site.

16. Prior to the commencement of development a Traffic Management Plan shall be submitted to and approved in writing by the Manager Statutory Planning of the City of Melville. The Traffic Management Plan shall outline how the proposed use will be serviced, including product delivery and waste collection. The use shall operate in accordance with the approved Traffic Management Plan to the ongoing satisfaction of the Manager Statutory Planning of the City of Melville.

I certify that this and the preceding [110] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE D R PARRY, DEPUTY PRESIDENT