McLachlan and City of Perth
[2008] WASAT 101
•1 MAY 2008
McLACHLAN and CITY OF PERTH [2008] WASAT 101
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 101 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:133/2008 | 1 MAY 2008 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 1/05/08 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Development approval refused | ||
| B | |||
| PDF Version |
| Parties: | IAN McLACHLAN CITY OF PERTH |
Catchwords: | Town planning Development application Public car park Whether site is "vacant land ... awaiting redevelopment" Visual amenity Whether policy provisions should be departed from Words and phrases: "temporarily", "vacant land ... awaiting redevelopment" |
Legislation: | City of Perth City Planning Scheme No 2, cl 36(1), cl 41(1), cl 43(4), cl 46 Planning and Development Act 2005 (WA), s 214 Valuation of Land Act 1978 (WA) |
Case References: | Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent made on 1 April 2008 to refuse development approval for the extension of the existing short stay public car parking facility at No 8 (Lots 2, 21 and Y130) Parker Street, Northbridge is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : McLACHLAN and CITY OF PERTH [2008] WASAT 101 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 1 MAY 2008 DELIVERED : 1 MAY 2008 FILE NO/S : DR 133 of 2008 BETWEEN : IAN McLACHLAN
- Applicant
AND
CITY OF PERTH
Respondent
Catchwords:
Town planning Development application Public car park Whether site is "vacant land ... awaiting redevelopment" Visual amenity Whether policy provisions should be departed from Words and phrases: "temporarily", "vacant land ... awaiting redevelopment"
Legislation:
City of Perth City Planning Scheme No 2, cl 36(1), cl 41(1), cl 43(4), cl 46
Planning and Development Act 2005 (WA), s 214
Valuation of Land Act 1978 (WA)
(Page 2)
Result:
Application for review dismissed
Development approval refused
Category: B
Representation:
Counsel:
Applicant : Ms D Caddy (Acting as Agent)
Respondent : Mr SJ Bain (Acting as Agent)
Solicitors:
Applicant : TPG Town Planning & Urban Design (Town Planners)
Respondent : SJB Town Planning & Urban Design (Town Planners)
Case(s) referred to in decision(s):
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for development approval to continue use of land in Northbridge as a public car park. The City of Perth previously approved the use for a period that expired in January 2008. The land is developed as a surface car park accommodating 18 to 20 cars and, as at the hearing, continued to be used for that purpose.
2 A City of Perth policy states that "[v]acant land and buildings awaiting redevelopment … may not be temporarily used for parking". Policies also state that "car parks will not be visible from streets …" and "are to be located so they do not dominate the surroundings …".
3 Following the hearing, the Tribunal gave an oral decision in which it refused the application. The Tribunal determined that, although the land is physically developed and currently used as a car park, it is relevantly "vacant land … awaiting redevelopment". This is because there is no subsisting development approval, whether for car parking or for any other use, and all development requires development approval. The Tribunal also determined that the proposed development would be visible from the street and would dominate the surroundings.
4 The Tribunal considered that City of Perth policies should not be departed from in the circumstances of the case.
5 The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.
Introduction
6 These proceedings involve an application for review brought by Mr Ian McLachlan (applicant), who is the business operations manager of Wilson Parking, in relation to the decision of the City of Perth (City or Council) to refuse development approval for the continuation of the use of the property at No 8 Parker Street, Northbridge (site) for public short stay car parking until 29 January 2010.
7 The site is located opposite Russell Square, between Parker Street to the west and Mountain Terrace to the east. It has a regular rectangular shape and an area of approximately 529 square metres. The site is presently developed as a surface or at-grade car park, accommodating between 18 and 20 cars in marked car spaces.
(Page 4)
8 Entry to the car park at the site is from Parker Street and exit is to Mountain Terrace. The site currently presents to both Parker Street and Mountain Terrace as an approximately 1.8 metre high Colorbond fence with vehicle entry or exit. The fence is set back on Parker Street by approximately 1 metre and there is some limited landscaping in the setback area.
9 The land to the north of the site comprises a heritage listed church owned building with a related or ancillary car park at its rear, accessed from Mountain Terrace. The land to the south of the site at No 2 to No 6 Parker Street is presently unused and is the subject of a development approval granted by the City for a multi-storey hotel. However, the evidence indicates that the design of the hotel development may be subject of further revision.
10 The immediate area of the site is undergoing change and has been correctly referred to by Mr Caddy, on behalf of the applicant, as in a state of transition.
11 There are a number of surface or at-grade car parks in the vicinity of the site, generally operated by the City and in some cases by Wilson Parking on behalf of the City. These other car parks have limited screening or landscaping to public streets. However, these car parks were apparently approved and commenced operation prior to current planning controls.
Background
12 At its meeting on 28 January 2003, the Council granted conditional development approval for a 15 bay short stay public car park on the site for a period of five years or until such time as the adjoining property at No 2 to No 6 Parker Street is redeveloped, whichever was the sooner.
13 However, this decision was made against the advice of Council's professional officers. That advice recommended refusal of the application for four reasons, namely:
"(1) The proposed public car park does not comply with [cl] 142(2) of the City Planning Scheme, which requires the area to be taken up by the car parking spaces to be completely screened from view from streets and other properties in the vicinity of the land.
(Page 5)
- (2) The proposed public car park does not comply with the Northbridge Study 1991 which requires surface car parks to be located behind buildings.
(3) The proposed temporary use of the land for public car parking does not comply with cl 8 of the Perth Parking Policy which states that vacant land awaiting redevelopment may not be temporarily used for parking.
(4) The development of new ground level bitumen car parks is contrary to the amenity of the locality and the orderly and proper planning of the City as a whole."
14 The Council's reasons for departing from this recommendation were as follows:
"The Council considered that the temporary development of the vacant site for car parking purposes would not have any adverse impact upon the amenity of the locality, provided suitable landscaping and screening was provided along the street frontages of the property."
15 The screening and landscaping that exists on the site consists, as I have said, of a 1.8 metre high Colorbond fence set back by approximately 1 metre along most of the street frontages and what appear to be relatively recent plantings in front of the fence on Parker Street. There is no suggestion in the evidence that the presentation of the site does not comply with the Council's 2003 approval.
16 It is not readily apparent how the Council could have rationally come to the view that the development of the site for car parking purposes, screened in the way in which it currently is, would not have any adverse impact on the visual amenity of the locality. Furthermore, the Council appears to have entirely ignored its officers' second and third reasons for recommending refusal.
17 At its meeting held on 22 June 2004, the Council granted retrospective approval for a revised car parking layout of the site that included an additional seven car parking bays, to provide a total of 22 car parking bays on the site. The original five year approval period was not amended and expired on 29 January 2008.
(Page 6)
18 Approximately a week before the five year period expired, the applicant lodged the development application which is now the subject of these proceedings.
19 No changes are proposed to the layout or operation of the car park.
20 It appears that although the development approval for the operation of the site as a car park expired on 29 January 2008, the use of the site as a car park continues.
21 The development application was advertised to surrounding landowners for comment for 14 days, due to the proposed development of car parking being an unlisted use as set out in cl 46 of the City of Perth City Planning Scheme No 2 (CPS 2 or Scheme). No objections were received to the proposed development during this period.
22 The application was also referred to the Department for Planning and Infrastructure (DPI) for comment, as the DPI had opposed the original application on the basis that using vacant land as a temporary car park was contrary to the Perth Parking Policy. However, the DPI advised that it has no objection to extending the parking at the site until 2010, now that the car park is existing and will be professionally managed.
23 The application was considered by the Council at its meeting on 1 April 2008. The Council accepted the recommendation of its professional officers to refuse the application for the following four reasons:
"(1) The temporary public car park is contrary to the City's Parking Policy in that vacant land or buildings awaiting redevelopment may not be temporarily used for parking.
(2) The car park is contrary to the Statement of Intent of the Northbridge Precinct and the City's Development and Design Policy under [CPS 2], in that car parking shall not be visible from the street or other public places.
(3) The car park will have an adverse impact on the amenity of the locality and is inconsistent with the orderly and proper planning of the locality.
(4) The use of the site for car parking for an additional two years is contrary to the intent and purpose of the Council's previous approval for a temporary car park on the site."
(Page 7)
24 On 14 April 2008, the applicant sought review of the Council's decision. The application was listed for hearing on an expedited basis.
25 The applicant subsequently clarified that the development application made to the Council was for approval until 29 June 2010, not 29 January 2010. The Council at the hearing accepts that the application can be considered as being for an extension until 29 June 2010.
Planning framework
26 Clause 36(1) of CPS 2 prohibits the development of land or buildings in the Scheme area without planning approval first being granted. It is common ground that car parking is development within the meaning of CPS 2 and requires approval. It is also common ground that the proposed development is classified as an unlisted use in the precinct P1 Northbridge. Clause 41(1) of CPS 2 requires an application that involves an unlisted use to be advertised and, as I have noted, that has occurred.
27 In determining an application, the Council, and the Tribunal on review, is to have regard to the matters contained in cl 43(4) of CPS 2, which include any relevant planning policy, any relevant precinct plan, any planning study approved by the Council, the orderly and proper planning of the locality and the conservation of the amenities of the locality.
28 The Scheme divides the Scheme area into 15 precincts, each with a precinct plan. As noted, the relevant precinct is P1 Northbridge. In addition, the City has adopted a number of planning policies in order to guide the assessment of development applications under CPS 2. Of particular relevance in this matter are Policy 4.1 - City Development Design Guidelines (Design Guidelines), Policy 5.1 - Parking Policy (Policy 5.1), and Policy 5.3 - Perth Parking Policy (Policy 5.3).
29 In addition, the Council has approved the Northbridge Study Final Report 1991 (Northbridge Study) as a planning study. The Northbridge Precinct Plan also makes reference to the Northbridge Study.
Issues for determination
30 The following two principal issues arise for determination in this review:
(Page 8)
- (1) Whether the proposed development should be approved having regard to Policy 5.1 and Policy 5.3 in relation to parking.
(2) Whether the proposed development should be approved having regard to impact on visual amenity.
31 I will address each of these issues in turn.
Parking policy issue
32 Policy 5.1 consolidates the City's parking requirements and outlines its approach to the provision of off-street parking facilities for non-residential and residential uses in the city.
33 The introduction to Policy 5.1 states that the City's approach to the provision of parking is based on the need to maintain high environmental standards. In relation to non-residential uses, Policy 5.1 states that parking for commercial development in the Perth parking management area, which includes the site, shall be provided in accordance with the Perth Parking Policy, which is a reference to Policy 5.3.
34 Policy 5.3 was developed jointly by the City and the State Government. It sets out the approach of the State Government and of the City to the development and management of parking facilities within the city. Policy 5.3 contains the following special provision:
"Vacant land and buildings awaiting redevelopment within the policy area may not be temporarily used for parking."
35 Similarly, the Northbridge Precinct Plan states:
"The use of vacant sites for car parking is inappropriate."
36 A key issue in this review is whether the site is relevantly "vacant land" within the meaning of and for the purposes of Policy 5.3. If it is vacant land for the purposes of the policy, then clearly the proposed development is contrary to that provision.
37 Expert evidence in this matter was given by Ms CE Murray, a town planning consultant, on behalf of the applicant, and Ms MJ Smith, a town planner and the Manager, Approval Services, of the City.
38 Ms Murray gave evidence that although the site was once vacant, as it has been used as a short stay public car park since 2003 and has been improved in order to facilitate this continuing use, it is not relevantly "vacant land" for
(Page 9)
- the purposes of Policy 5.3. Ms Murray refers to the dictionary definition of the word "vacant" as "not occupied" or "empty". Ms Murray notes that the City has not issued a formal direction under s 214 of the Planning and Development Act 2005 (WA) to cease use of the site as a car park, and therefore considers that, for all intents and purposes, it is a car park and not vacant land. Ms Murray also refers to the definition of vacant land in the Valuation of Land Act 1978 (WA) (VL Act).
39 Finally, Ms Murray refers to the apparent position of the DPI that the site is not vacant, given the physical infrastructure or improvements on the site, and that it is a permanent car park, rather than a temporary car park, because it has existed for in excess of three years.
40 Ms Smith disagrees. She notes that there is no lawful approved use of the site. She also considers that the presence of improvements does not preclude the site from being relevantly "vacant land". Ms Smith considers that the definition of vacant land in the VL Act is not apposite. She also notes that the relevant part of the DPI that expressed the views referred to earlier is the licensing of car parks section, not the planning section.
41 The Tribunal prefers the evidence of Ms Smith on this issue. There is no lawful approved use for the site at present, whether or not the City has issued a direction to cease use as a car park. The Council, Ms Smith explained, has not issued a direction to cease use because of the current proceedings. That is a proper course of action.
42 The definition of vacant land in the VL Act is not apposite, as it exists in a particular statutory context that does not apply. The presence of the physical improvements on the site does not preclude the site from being vacant land awaiting redevelopment within the meaning of Policy 5.3. Indeed, Policy 5.3 contemplates that there can be a building on a property and the property would still be awaiting redevelopment for the purposes of the provision.
43 The site is vacant land awaiting redevelopment within the policy area, because it is land for which there is no subsisting development approval and all development requires development approval. The DPI's view, admittedly expressed by the licensing, rather than by the planning section, is legally incorrect. The word "temporarily" when used in the policy refers to use pending redevelopment. The proposed development is therefore contrary to that policy provision.
(Page 10)
44 The approach to the application of policy is well recognised. A policy cannot be inflexibly applied regardless of the merits of the particular case. Nevertheless, the question in many cases is whether the policy, or more correctly the planning principles that find expression in the policy, should not be applied, rather than whether it should be applied. As Barker J observed in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at 441:
"Good public administration demands no less an approach."
45 The applicant expressed the view in his evidence that the Council has in the past overridden Policy 5.3 and did so in granting the application for the car park on 28 January 2003, and again on 22 June 2004.
46 I do not consider that in the circumstances of this case the Council's approvals in 2003 and 2004 is a circumstance that would warrant the non-application of the policy today.
47 As I said earlier, the Council rejected its officers' recommendation, which was in part based on the policy, without apparently having turned its mind as to why the policy should not be applied in the circumstances of that case. The 2004 approval was simply to add further car spaces to an approved car park until the expiry of the original approval.
48 Mr Caddy has also raised the prospect of the site remaining vacant if this application is not approved. I do not consider that that would warrant a departure from the application of the policy in the circumstances of this case. There may well be other forms of development for the site.
49 Finally, Mr Caddy noted that, as I have said before, there is an existing development approval for the property to the south, although there is likely to be some redesign of that proposal, with the result that any development on that site may not be completed for some considerable time. I do not consider that that factor would warrant a departure from the application of the policy in the circumstances of this case. Similar situations may well exist throughout the policy area. Ultimately, if that were to justify non-application of the policy, the intention of the policy would be significantly eroded.
50 For these reasons, I do not consider that the policy should be departed from in the circumstances of this case.
(Page 11)
Visual amenity
51 The Statement of Intent for the Northbridge Precinct in the precinct plan states:
"[C]ar parks will not be visible from streets and other public places."
52 Similarly, Policy 5.1 states that parking facilities:
"are to be located so they do not dominate the surroundings …".
53 The Design Guidelines state:
"Car parking areas should be located as an undercroft/basement to the building or towards the rear of the site and screened from public view."
54 Finally, the Northbridge Study recognises that there is a requirement for more short term car parking to be made available for Northbridge patrons, but also states that:
"Car parks can be extremely intrusive land uses which could potentially destroy the character of Northbridge",
- and specifically states:
"Locate any surface car park behind building and incorporate planting with the preferred tree species for the area"; and
"Minimise the impact of car parks on the streetscape particularly at street level by giving careful attention to the street frontages of such car park."
56 Ms Murray says that dominant use car parks are different, because there is a requirement for the car parking to be obvious and visible to the street, and considers that this distinction further justifies the interpretation that she has placed on the relevant policy provisions.
(Page 12)
57 Ms Smith agrees that the policies are written in such a way that they appear to emphasise mixed use developments in which car parking is an ancillary element. However, she considers that the policies are expressed generally and that they apply and have been applied in the case of multi-storey car parks which are developments in which car parking is the dominant or sole use.
58 The Tribunal prefers Ms Smith's evidence on this issue. The policy provisions are expressed generally and clearly are intended to apply to dominant or sole use car parks, as well as ancillary use car parks. Furthermore, it is possible for car park directional signage to be visible from the street, without the car park itself being visible. Indeed, a number of the drawings or diagrams in the policies illustrate this type of situation, as do the photographs of His Majesty's car park in the city.
59 The proposed development would be highly visible from the street. It would dominate the surroundings and, while screened from public view to an extent by the Colorbond fencing, it is incapable of being fully screened because of the narrowness of the site and the need for vehicular entry and exit to be at different ends of the site. The character of the proposed development is such that it does not minimise the impact on the streetscape.
60 The applicant gave evidence that Wilson Carparking is willing to undertake reasonable improvements to the screening. However, without physical work that would require separate development assessment, these improvements are unlikely to significantly mitigate the visual impact of the car park.
61 The proposed car park, in my opinion, would therefore be contrary to each of the policy provisions that I have referred to.
62 As I have said earlier, policy provisions are not mandatory - they can be departed from in appropriate cases.
63 In this case, I note that there are a number of car parks in the vicinity of the site that are at-grade surface car parks, either not screened at all from the public street or screened minimally. I do not consider that these car parks provide a justification in the circumstances of this case for departing from the policy provisions I have referred to, because they predate the current planning framework. If those other car parks were an acceptable justification for departure from the policy provisions I have referred to, then the obvious planning intention of those policy provisions would be entirely undermined.
(Page 13)
Conclusion
64 For these reasons, I consider that the proposed development of short stay car parking at the site should be refused approval, as it is contrary to a number of the City's adopted policies. Although these policies can be departed from in appropriate circumstances, I do not consider that this is such a case.
65 In consequence, the application for review should be dismissed and the decision of the Council to refuse development approval should be affirmed.
Orders
66 I make the following orders:
1. The application for review is dismissed.
2. The decision of the respondent made on 1 April 2008 to refuse development approval for the extension of the existing short stay public car parking facility at No 8 (Lots 2, 21 and Y130) Parker Street, Northbridge is affirmed.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
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