MCDONALD'S AUSTRALIA PTY LTD and TOWN OF VINCENT - [2011] WASAT 11

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MCDONALD'S AUSTRALIA PTY LTD and TOWN OF VINCENT [2011] WASAT 11

MEMBER: MR P McNAB (MEMBER)
MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: 2 NOVEMBER 2010

DELIVERED : 21 JANUARY 2011

FILE NO/S: DR 187 of 2010

BETWEEN: MCDONALD'S AUSTRALIA PTY LTD
Applicant
AND
TOWN OF VINCENT
Respondent

Catchwords:

Town planning - Development application - Fast Food Restaurant - Whether underdevelopment or under-utilisation of site - Whether underdevelopment a stand alone concept - Undesirable precedent - Weight to be given to Local Planning Strategy - Strategic development site - 'Gateway' site - Whether requirement for residential component - Tension between planning instruments - Interpretation of height provisions of precinct Policy - Buildings with two storeys encouraged - Scale comparable with majority of existing buildings - Character of recent development and approvals - What constitutes a storey - Policy aimed at urban design, passive surveillance and intensity of use - Development permitted on conditions - Application allowed - Words and phrases: underdevelopment

Legislation:

Planning and Development Act 2005 (WA)

Result:

The application for review is upheld and approval granted subject to conditions

Category: B

Representation:

Counsel:

Applicant: Mr P McGowan
Respondent: Ms S Bransby

Solicitors:

Applicant: Norton Rose
Respondent: Town of Vincent

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

Nicholls and Western Australian Planning Commission [2005] WASAT 40

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In March 2010, an agent of the applicant (McDonald's Australia Limited) applied to the Town of Vincent seeking approval for the development of a McDonald's fast food restaurant at Nos 208 - 212 (Lot 123) Beaufort Street, Perth.
In June 2010, the Town of Vincent issued a formal refusal to the applicant and, in July 2010, the applicant made an application to the Tribunal for a review of that decision.
An order made by the Tribunal in August 2010, with the consent of the parties, defined the issues in the review in these specific terms:
1.Whether under the Town of Vincent Beaufort Precinct Policy No 3.1.13 and, subject to the appropriate weight, the draft Local Planning Strategy, the proposed development is an underdevelopment and under[-]utilisation of the site.
2.Whether, if the answer to (1) is yes, approval of the application would give rise to an undesirable precedent.
At the subsequent hearing, it was agreed (in line with the concurrence of the expert witnesses) that as to the issues of alleged underdevelopment or under utilisation, that there was no material difference between the two concepts and, further, that they were not stand alone concepts. Thus, any interpretation or application of these terms or concepts had to arise from the planning framework itself.
The Tribunal found that the respondent's Local Planning Strategy should be given little or no weight in this review. This view was based on the fact that the Strategy had not been relevantly adopted by the respondent; that the content of the Strategy made no reference to the subject site other than designating it as a strategic development site; and that there was some tension between the content of the Strategy and the respondent's adopted Precinct Policy.
In regard to this Policy, the substantive question was whether the proposed development complied with the intent of the height provision of Part 3 'Commercial Area', which read as follows: 'Buildings with two storeys (including loft) are strongly encouraged.'
The Tribunal accepted the submission of the applicant that this requirement was not mandatory and that, otherwise, the proposed development responded to the relevant urban design, passive surveillance and use intensity intentions of the Policy.
In the circumstances of the application of the current planning provisions, the Tribunal took the view that it could not be said that the proposed development was an underdevelopment of the subject site. Given this conclusion, the second issue as to precedent did not arise.
For these reasons the application for review was allowed and approval was granted subject to certain conditions.

Introduction and background

On 29 March 2010, TPG Town Planning and Urban Design, on behalf of McDonald's Australia Limited (applicant), applied to the Town of Vincent (Town, Council or respondent) seeking approval for the development of a McDonald's restaurant at Nos 208 - 212 (Lot 123) Beaufort Street, Perth (subject land, subject site or site).
The application was advertised by Council and 11 objections, and one supporting submission were received. In summary, the concerns expressed in the objections related to the hours of operation, an increase in traffic, the alleged encouragement of the 'wrong element', and that a more acceptable commercial application should be found for the site.
At the Ordinary Meeting of Council held on 8 June 2010, the respondent resolved to refuse the application for the following reasons:
1.The development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality;
2.The development is considered an under-utilisation of the site in accordance with the Town of Vincent Policy 3.1.13 relating to the Beaufort Precinct;
3.The non[-]compliance with the Town's Policy 3.5.2 Relating to Signs and Advertising;
4.The development will result in an undesirable precedent for the area and the Beaufort Precinct, and
5.[C]onsideration of the objections received.
On 14 June 2010, Council issued a formal refusal to the applicant. On 18 July 2010, the applicant made an application to the Tribunal for a review of that decision.

Locality and zoning relevant to the subject land

The subject land is located at Nos 208 - 212 (Lot 123) Beaufort Street, Perth. The land, comprising an area of 3048 square metres, is bounded by Beaufort Street on its western boundary, Parry Street on its southern boundary and Stirling Street on its eastern boundary. The property is currently the subject of an application for subdivision to create two lots with areas of 1,505 square metres and 2,284 square metres respectively.
The application the subject of this review is contained within the proposed western lot (Lot 500) comprising an area of 1,505 square metres with a frontage to Beaufort Street of 24.2 metres and a frontage of 44.4 metres to Parry Street.
We note that the respondent has recently approved a five storey development on the balance of the subject site (the eastern portion) comprising commercial uses on the ground floor and residential uses on the other floors.
The subject land is zoned 'Commercial' under the provisions of the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme).
The lots to the north, on both sides of Beaufort Street, are zoned 'Commercial', while those to the north on both sides of Stirling Street are zoned 'Residential - Commercial' with an R-coding of R80. Weld Square, a large park, is located to the south of the subject land, on the opposite site of Parry Street.
The lots facing the subject land on the western side of Beaufort Street contain a number of single storey commercial buildings, while the lot to the north, facing Beaufort Street, contains a two storey commercial building; the lot to the north, facing Stirling Street, contains a single storey building. The lot facing the subject land on the eastern side of Stirling Street is vacant, with a two storey commercial building to the north.
Recent developments further north on both Beaufort Street and Stirling Street tend to comprise more intense residential development with commercial uses on the ground floor. These are generally four to five storeys high. More intense development also occurs to the south on the western side of Beaufort Street in the area developed by the East Perth Redevelopment Authority.
While the immediate locality is clearly undergoing a transition (see further below), it currently comprises a mixture of more recent residential/commercial developments with older traditional single storey shop fronts (some with raised parapets presented to the street) and a number of vacant lots.

The proposed development

The application is for the development of a McDonald's fast food restaurant. It is proposed to locate the restaurant on the western third of proposed Lot 500 with a drive-through facility and a parking area located on the eastern section of the lot.
The parking area and drive-through facility will be accessed, so it is proposed, by means of a one way system of circulation from Parry Street, with ingress from a crossover at the eastern end of proposed Lot 500 and egress from a crossover centrally located on the lot. The parking area will provide eight public car parking bays, four staff parking bays and one accessible bay.
The restaurant comprises a single storey structure built up to both the Beaufort Street and Parry Street boundaries, although a landscaped area, play area and external terrace seating area are located under cover along the Beaufort Street and part of the Parry Street boundary. Awnings are to be provided to both streets. The majority of the parapet to the western façade facing Beaufort Street and the southern façade facing Parry Street will be 8.5 metres high. Framing parapets have been provided in the area of the car park to provide some continuity of built fabric on the southern elevation. A blade wall, 9.5 metres high, is proposed towards the southern end of the western elevation, with signage facing Beaufort Street.

Relevant planning provisions

As has been mentioned, the subject land is zoned 'Commercial' under TPS 1. It is located within the Beaufort Precinct established under the Scheme.
A 'Drive-In Fast Food Outlet' is an AA use; that is, a use that is not permitted unless the Council has exercised its discretion by granting planning approval. It is common ground that the proposed development would be such a use.
Clause 38(5) of TPS 1 sets out matters to which the respondent and, on review, this Tribunal is to have regard to in determining applications for planning approval. These matters include both any relevant planning policy and any planning study approved by the Council.
The Town of Vincent Beaufort Precinct Policy 3.1.13 (Policy) was adopted pursuant to cl 47 of TPS 1.
The general provisions of the Policy suggest that the immediate locality is to become a mixed-use area of predominantly residential uses, comprising an area of transition from the more intense commercial development of the adjacent area to the Hyde Park (residential) Precinct. The Policy envisages that redevelopment should provide a reduction in building scale and height from the city centre to the residential areas beyond. The Policy exhorts that new buildings should be of a scale compatible with the majority of existing buildings. It also identifies 'opportunities to improve the amenity of the area through the redevelopment of under-utilised or vacant sites to achieve predominantly residential development'.
The Policy sets out more specific provisions for the Commercial Area within which area the subject land is located.
These provisions suggest that the Commercial Area is to form an extension to Northbridge with shops, restaurants and other interactive uses continuing to be the predominant uses. The Policy requires that new buildings should be of a height and scale similar to the majority of existing buildings; that car parks should not visually detract from the public environment; and that they should preferably be not visible from streets and public spaces.
Importantly, in terms of permitted land uses, the Policy reflects the provisions of TPS 1.
In dealing with building heights, the Policy suggests that '[b]uildings with two storeys (including a loft) are strongly encouraged'.
The Town of Vincent Local Planning Strategy April 2009 (Strategy or LPS) was endorsed by the respondent at its Ordinary Council Meeting of 25 May 2010 'as a working document, to be used in the development of the Policy Manual ... '.
This document is the precursor to a new town planning scheme and 'sets up the long[-]term strategic direction and rationale for that town planning scheme'.
In dealing with 'further studies', the LPS identifies Strategic Development Sites which are 'highlighted in the Strategy to encourage development that can draw on key themes of the Strategy to do with affordable housing opportunities, development in accordance with TOD [transitoriented development] principles and to facilitate greater population numbers close to town centres and activity corridors'.
The LPS, in Appendix 3, addressing the 'Perth - Town Centre Analysis', provides a map in which the subject land is identified as a 'Strategic Development Site'. However, the supporting text in Appendix 3 focuses on the town centre proposed in relation to William Street, and makes no reference to either Beaufort Street or the subject land.

Issues for determination

At a directions hearing conducted on 20 August 2010, the Tribunal, constituted by Senior Member Parry, with the consent of the parties, ordered the following two issues for determination in the review:
1.Whether under the Town of Vincent Beaufort Precinct Policy No 3.1.13 and, subject to the appropriate weight, the draft Local Planning Strategy, the proposed development is an underdevelopment and under utilisation of the site.
2.Whether, if the answer to 1 is yes, approval of the application would give rise to an undesirable precedent.
Thus, the issues and evidence presented by the parties in the review were confined to these issues. This was an entirely appropriate course in the circumstances of the case. We turn to consider each of those issues, so far as may be necessary.

Whether the proposed development is an underdevelopment and under utilisation of the site: the evidence

The joint expert witness statement provided by Ms Sandra Bransby, engaged by the respondent, and Mr Ray Haeren, engaged by the applicant, agreed that the relevant planning instruments in the review were as follows:
•Town of Vincent Town Planning Scheme No 1;
•Town of Vincent Beaufort Precinct Policy 3.1.13; and
•Town of Vincent Local Planning Strategy (April 2009) (Strategy).
There were no substantive disagreements between the expert witnesses in regard to the relevant provisions of the Scheme. The material disagreements arose in regard to: first, the interpretation of the provisions of the Policy; and, secondly, as regards both the interpretation and the weight, if any, to be given to the Strategy.
It was also agreed between the experts that, as to underdevelopment and under-utilisation, there was no material difference between the two concepts and, further, that they were not stand alone concepts: they had to arise from or otherwise to be found in a particular context, namely the application of a specific planning framework.
With regard to the application of the Policy, it was agreed that the Policy strongly encouraged buildings with two storeys (including a loft). It was also agreed that Part 3 of the Policy contained the substantive provisions to be applied, although Ms Bransby submitted that the general requirements of the Policy must also be considered.
Ms Bransby argued that '[t]he height of the [proposed] building represents a form of up to 8.5 [metres] in height, however, [one which] only actively addresses both streets to a height of only 3.5 [metres] which reflects its true single storey scale'. In this context, it was Ms Bransby's view that the proposed false façade did not produce a two storey building. This was reflected in the fact that that the development in effect proposed only limited activity to the ground floor with no activity beyond a single storey height. Given the strong encouragement provided for two storeys in the development standards for the Commercial Area found in the Policy, the proposal did not, in her view, comply with the objectives or intent of the Policy. She also suggested that the site coverage of approximately 30% itself reflected underdevelopment of the site.
Ms Bransby also submitted that, in terms of the Policy provisions, the location of the subject site also made it appropriate to accommodate mixed uses rather than a single use in the proposed development. Likewise, Ms Bransby submitted that the containment of just a single use on the property was inappropriate given that recent development in the area, which incorporated a mix of commercial and residential uses, presented strong and visually pleasing façades that were relevantly interactive on all levels.
In support of what she perceived as the need for a residential component in the proposed development, Ms Bransby argued that TPS 1 made provision for residential uses in the 'Commercial' zone; that the general provisions of the Policy encouraged residential uses in the precinct; and that the objectives of the Strategy sought to encourage highdensity development along main roads.
In regard to the weight to be given to the Strategy, Ms Bransby argued that the instrument represented a planning study approved by the Council under the provisions of cl 38(5) of TPS 1 and therefore the strategic weight which the Strategy held, with respect to its application to development proposals, should be significant.
Ms Bransby also stressed the importance of the identification of the subject lot as a strategic site, and the fact that the text accompanying the Perth Town Centre map in Appendix 3 generally sought to achieve heights of two to four stories on such sites. She was of the opinion that the subject site comprised a 'gateway' to the town and therefore that it should reflect the Strategy's three to four stories requirement for landmark buildings. In this context, it was submitted that a multistorey development incorporating residential uses would be far more compatible with the Strategy objective to create high-density development along main roads rather than the currently proposed single story, single use development.
Ms Bransby highlighted the fact that recently completed or approved development in the Beaufort Precinct comprised a scale which encompassed a minimum of three storeys and incorporated a mix of uses which she regarded as consistent with the objectives of the Policy. She noted that a five storey development had recently been approved by the respondent on the balance (that is, the eastern end) of the subject site. This incorporated commercial uses on the ground floor and residential uses on the other floors.
In reply, Mr Haeren, the expert witness engaged by the applicant, argued that the proposed development met the intent of the general provisions of the Policy statement as it represented a scale consistent with the majority of existing buildings in the immediate locality, and reflected the transitional nature of the site expressed by the Policy.
He argued that the standards within the Policy were general and nonmandatory and he submitted that the proposed development met the intent of the provisions of Part 3 'Commercial Area' of the Policy, by providing an activated street frontage, by maintaining setbacks consistent with building setbacks on adjoining land, and by the provision of awnings.
In regard to the height provisions of the Policy, Mr Haeren argued that the Policy effectively established a height limit, and that although two storeys were encouraged, they were not explicitly mandated by the Policy. It was his view that, in any case, the proposed development provided a façade treatment which would be consistent with a two storey building.
Mr Haeren submitted that the relevant criteria to be assessed in responding to the contextual requirements of the Policy were:
a)urban design (which included bulk and scale);
b)passive surveillance of the public domain; and
c)intensity of use.

In his opinion, the development of a use explicitly referred to in the Policy; a '24/7' operation; and the proposed height of the façade, when taken together meant that the proposed development met these criteria.
With regard to the Strategy, Mr Haeren argued that the document was a strategic reference which was intended to guide future scheme and policy development, and that its generic qualities do not provide a suitable expression of intent to form the basis for determining a specific development application.
In addition, while it was true that the subject site was identified in the Strategy as a strategic development site, there was no reference to the intentions for this site, either on the plan or elsewhere in the Strategy. Mr Haeren also submitted that, in his view, the subject land did not constitute a 'gateway' site. He noted the fact that the primary focus of the relevant section of the Strategy appeared to be the development of the Perth Town Centre and that the subject lot did not fall within the town centre. His view was that the Strategy did not propose any change of zoning for the site in proposed 'TPS 2'.
In this context, it was Mr Haeren's expert opinion that little weight should be given to the Strategy in terms of the current review.

Submissions of the parties

In his closing submissions on behalf of the applicant, Mr McGowan, of counsel, submitted that underdevelopment and under-utilisation of the subject site were not stand alone criteria in respect of which the proposed development could be refused.
In regard to the interpretation of these two concepts, as has been mentioned, the expert witnesses agreed that there is no material difference between the two terms (although Ms Bransby also expressed the view that under-utilisation could be regarded as referring to the undesirability of restricting development to a single use). It was also agreed, as has also been mentioned, that underdevelopment was not a stand alone concept and had to arise from the application of the planning framework.
We therefore agree with Mr McGowan's submission on this point.
He also argued that it was doubtful that the Strategy could be considered as a seriously entertained planning proposal. The Strategy had not been formally adopted by the respondent; s 5.6 and the map forming part of Appendix 3 made no reference to the subject site other than designating it a strategic development site; and there was clearly some tension between the content of the Strategy and the respondent's adopted Policy.
Furthermore, the respondent's Policy, Mr McGowan submitted, did not make two storey development a mandatory requirement. A Policy requirement to 'strongly encourage' is not a basis on which the proposed development should be refused.
In regard to the weight to be given to the Strategy as a policy, this Tribunal in Nicholls and Western Australian Planning Commission [2005] WASAT 40 established the following criteria in considering the weight to be accorded to a draft planning instrument:
(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'.
While the Strategy could be regarded as meeting criteria (2), it fails, either wholly or mainly, in respect to the other three criteria. In these circumstances the Strategy, to the extent that it has any application to the subject site at all, should be given little or no weight in the context of this review.
Even if it were to be applied, the Strategy's provisions either appear very general or are silent with respect to the subject site. While providing detailed provisions for commercial zoned land in the Perth Town Centre, which includes specific provisions on height, other than identifying the subject site as a strategic site, the Strategy does not provide any clear guidance in terms of the issues the subject of the current review.
In addition, we mention that there is, in any case, some possible tension between these two planning instruments; the strong focus on the Strategy seems to be to seek to increase residential densities in the area, but this is not reflected in the provisions for the 'Commercial Area' in the currently adopted Policy.
In our view, it needs to be clearly established whether the proposed development is an underdevelopment of the site in terms of its alleged failure to meet or address the requirements of the provisions of the applicable planning instruments for the subject site.
In regard to the respondent's Policy, having considered the evidence of the expert witnesses, it is clear that the substantive divergence between Ms Bransby and Mr Haeren was whether the proposed development complied with the intent of the height provisions of Part 3 'Commercial Area' of the Policy which, so far as is relevant, reads as follows: '[b]uildings with two storeys (including loft) are strongly encouraged.' In addition, there arises a related or subsidiary question in regard to the extent of site coverage.
Mr McGowan drew attention to Mr Haeren's evidence. As will be recalled, Mr Haeren argued that the proposed development responded to the relevant urban design, passive surveillance and use intensity intent of the Policy. He further submitted that the height provision of the Policy was aspirational rather than mandatory and that in this context, the 8.5 metres height of the façade and the treatment of the interface with the parking area met the general intent of the Policy.
In regard to all of these issues, the Tribunal agrees with the view expressed by Mr Haeren that the proposed development responds to the intent of the currently applicable Policy. Mr Haeren's opinions tend to follow the textual indications of the Policy and otherwise accord with generally understood planning principles.
Although there is, as was submitted by Ms Bransby, a 'residential thread' running through the relevant planning instruments, Part 3 of the Policy makes no express reference to residential uses in the objectives for the Commercial Area, and the Policy simply includes a note in the Development Standards requiring compliance with R80 standards. In the context of the consistency between the 'Commercial' zoning of the subject site in TPS 1 and the provisions of the Policy, there is, in our view, no necessary requirement in the current planning instruments for the inclusion of a residential component in the development.
In these circumstances the Tribunal has reached the view that it could not be reasonably said that the proposed development would lead to an underdevelopment or under-utilisation of the subject site. The subject land could not be said to be 'incompletely developed'. The proposed development should therefore be approved upon certain conditions.
On the issue of precedent, the respondent submitted that approval would give rise to an undesirable precedent. On behalf of the applicant, it was submitted that the issue of undesirable precedent would only arise if the proposal represented an underdevelopment or under-utilisation of the site. We agree. In the circumstances of the Tribunal's determination on the issue of underdevelopment and under-utilisation, the second issue as to precedent, framed by the consent orders set out above, falls away.
In response to the various authorities cited, we mention that we took the view that each of those cases could be differentiated from the application the subject of this review, mainly because the planning instruments involved in those cases were very different from those which apply in the current case.

Conditions

In the course of the hearing, the parties eventually agreed upon the substance of all but one of the conditions which should be imposed, should the Tribunal decide to approve the development. These agreed conditions appear below. Certain matters, not constituting a condition, may appear subsequently in the form of an advice note issued by the Town. The remaining differences between the parties, as to draft condition (i)(a), are not substantial or material, and we have inserted the few words suggested by Mr McGowan which make the clause more workable. The redrafted clause will still address the Town's concerns.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.Planning approval is granted for the construction of a 'Drive-In Fast Food Outlet' and associated signage (McDonald's) as is set out in drawings prepared by Hendley and Associates (numbered DA01 - DA09, dated November and December 2009, with the exception of DA09 dated April 2010 and S01 - S05, dated December 2009) subject to the following conditions:
(i)Building
(a)All external fixtures, such as television antennas (of a nonstandard type), radio and other antennas, satellite dishes, external hot water heaters, airconditioners and the like, shall not be visible from the street(s) frontage immediately abutting the site, and are to be designed integrally with the building and be so located so as not to be visually obtrusive from Beaufort Street and Parry Street.
(b)First obtaining the consent of the owners of No 214 - No 222 Beaufort Street for entry onto their land, the owners of the subject land shall finish and maintain the surface of the boundary wall (parapet) walls facing No 214 - No 222 Beaufort Street in a good and clean condition.
(c)The doors, windows and adjacent floor areas on the ground floor fronting Beaufort Street and Parry Street shall maintain an active and interactive relationship with these streets.
(ii)Car Parking and Accessways
(a)The car parking area(s) on the subject land shall be sealed, drained and paved and line marked in accordance with the approved plans prior to the first occupation of the development and maintained thereafter by the owner(s) to the satisfaction of the Town.
(b)Redundant or 'blind' crossovers shall be removed and the verge and kerb made good to the satisfaction of the Town's Technical Services, at the applicant's/owner(s) full expense.
(iii)Public Art
(a)The owner(s), or the applicant on behalf of the owner(s), shall comply with the Town of Vincent Percentage for Public Art Policy No. 3.5.13 and the Percentage for Public Art Guidelines for Developers, including:
(b)Within 28 days of the issue of this approval, the owner or the applicant must elect to either obtain approval from the Town for an artist to undertake a public art project (Option 1) or pay the Cash-in-Lieu Percent for Public Art Contribution, of $12,000, (Option 2) for the equivalent value of 1% of the estimated total cost of the development ($1,200,000); and
(c)In conjunction with the above chosen option:
1)Option 1
Prior to the approval and subsequent issue of a Building Licence for the development, obtain approval for the public art project and associated artist; and prior to the first occupation of the development, install the approved public art project, and thereafter maintain the art work;
OR
2)Option 2
Prior to the approval and subsequent issue of a Building Licence for the development or prior to the due date specified in the invoice issued by the Town for the payment (whichever occurs first), pay the above cash-in-lieu contribution amount;
(iv)Signage
The monolith sign on the Beaufort Street frontage shall have a maximum height of 7.0 metres from natural ground.
(v)Trees
No street verge tree(s) shall be removed. The street verge tree(s) is to be retained and protected from any damage including unauthorised pruning.
(vi)Prior to the issue of a Building Licence, the following shall be submitted to and approved by the Town:
(a)Construction Management Plan
A Construction Management Plan shall be submitted to and approved by the Town, addressing the following issues:
1)Public safety, amenity and site security;
2)Contact details of essential site personnel;
3)Construction operating hours;
4)Noise control and vibration management;
5)Dilapidation Reports of nearby properties;
6)Air and dust management;
7)Stormwater and sediment control;
8)Soil excavation method (if applicable);
9)Waste management and materials re-use;
10)Traffic and access management;
11)Parking arrangements for contractors and subcontractors;
12)Consultation Plan with nearby properties, and
13)Any others matters deemed appropriate by the Town;
(b)Landscape and Reticulation Plan
A detailed landscape and reticulation plan for the development site and adjoining road verge shall be submitted to the Town's Parks and Property Services Section for assessment and approval.
For the purpose of this condition, a detailed landscape and irrigation plan shall be drawn to a scale of 1:100 and show the following:
1)The location and type of existing and proposed trees and plants;
2)All vegetation including lawns;
3)Areas to be irrigated or reticulated;
4)Proposed watering system to ensure the establishment of species and their survival during the hot and dry months; and
5)Separate soft and hard landscaping plans (indicating details of plant species and materials to be used).
The Council encourages landscaping methods and species selection which do not rely on reticulation.
All such works shall be undertaken prior to the first occupation of the development, and maintained thereafter by the owner(s)/occupier(s);
(c)Refuse and Recycling Management
A Refuse and Recycling Management Plan shall be submitted and approved by the Town prior to commencement of any works. The Plan shall include details of refuse bin location, number of rubbish and recycling receptacles, vehicular access and manoeuvring.
Revised plans and details shall be submitted demonstrating a bin compound being provided in accordance with the Town's Heath Services Specifications, Commercial:
General Waste: One (1) mobile garbage bin or equal to 240 litres per commercial unit or 200 square metres of floor space or part thereof (collected weekly); and
Recycle Waste: One (1) mobile recycle bin or equal to 240 litres per commercial unit or 200 square metres of floor space or part thereof (collected fortnightly).
(d)Acoustic Report
An acoustic report prepared in accordance with the Town's Policy relating to sound attenuation shall be submitted and approved by the Town. The recommended measures of the acoustic report shall be implemented and certification from an acoustic consultant that the measures have been undertaken, prior to the first occupation of the development and the applicant/owners shall submit a further report from an acoustic consultant six months from the first occupation of the development certifying that the development is continuing to comply with the measures of the subject acoustic report;
(e)External Finishes
A detailed schedule of external finishes (including materials and colour schemes and details) shall be submitted and approved;
(vii)Prior to the first occupation of the development, the following shall be completed to the satisfaction of the Town:
(a)Bicycle Parking Facilities
A minimum of five (5) class two bicycle parking facilities are to be provided in a locked compound for employees. A minimum of 10 (ten) class 3 bicycle parking facilities, shall be provided for visitors at a location convenient to the entrance of the development. Details of the design and layout of the bicycle parking facilities shall be submitted and approved prior to the installation of such facilities.
(b)On-Road Parking
The development will result in the loss of an additional three on-road parking bays, over and above the two bays which will be deleted to accommodate the proposed crossovers. To improve safety and access to and from the site, including that of large delivery vehicles, the applicant shall contribute $8,400 for road improvements in the immediate vicinity. The contribution is in addition to the works within the road reserve incumbent upon the developer.

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER