| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MEA (A DIVISION OF HAGEMEYER BRANDS AUSTRALIA PTY LTD) and CITY OF STIRLING [2009] WASAT 252 MEMBER : MR J JORDAN (MEMBER) HEARD : 15 SEPTEMBER 2009 DELIVERED : 22 DECEMBER 2009 FILE NO/S : DR 259 of 2009 BETWEEN : MEA (A DIVISION OF HAGEMEYER BRANDS AUSTRALIA PTY LTD) Applicant
AND
CITY OF STIRLING
Respondent
Catchwords: Town planning - Development - Fitout of vacant premises for use as showroom and ancillary offices - Precinct 4 of Stirling City Centre - Proposed use not a preferred or contemplated use in precinct - Objectives for precinct - Short-term indicative development plan - Long-term indicative development plan - Dominant showroom use (IKEA) on site - Precedent - Relationship to other precincts - Outline Development Plan - Stirling City Centre Structure Plan Costs Whether genuine attempt by decisionmaker to determine on the merits Whether decisionmaker acted reasonably Conduct of respondent's witnesses
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Legislation: City of Stirling Town Planning Scheme No 38, cl 1.14, cl 1.14.1, cl 1.14.2, cl 1.14.2(c), cl 2.8, cl 2.8.1, cl 2.8.1(c), cl 2.8.1(d), cl 4.5.1, cl 5.3, cl 5.4, cl 5.8, cl 5.8.1, cl 5.8.2, cl 5.8.3, cl 5.8.4, Sch 1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2), s 87(4) Result: Application for review dismissed
Decision of respondent made on 17 June 2009 to refuse development approval for the development 'retail store fit-out' for the purposes of a showroom and ancillary office at No 6 (Lot 215) Sunray Drive, Stirling, affirmed Category: B
Representation: Counsel:
Applicant : Mr M Hotchkin
Respondent : Mr D McLeod
Solicitors:
Applicant : Hotchkin Hanly
Respondent : McLeods
Case(s) referred to in decision(s):
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53
Goldin and Minister for Transport (2002) 121 LGERA 101
Nicholls v Western Australian Planning Commission [2005] WASAT 40
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 This matter involved an application for review of the refusal by the City of Stirling of a development application for the fitout of a vacant tenancy in a building at the perimeter of Lot 215 Ellen Stirling Boulevard, Stirling. Lot 215 also contains a large, centrally located building containing an IKEA showroom and three other perimeter buildings. The fitout would have resulted in the premises being used as a showroom to display and demonstrate, but not sell, kitchen appliances. 2 Issue 1 required consideration of whether a showroom development would be inconsistent with the provisions of the City of Stirling Town Planning Scheme No 38 Stirling City Centre Scheme. The Tribunal formed the view that the proposed development was inconsistent with the statement of intent of Precinct 4, within which Lot 215 is situated, as set out in the City of Stirling Town Planning Scheme No 38 Stirling City Centre Scheme. However, the City of Stirling Town Planning Scheme No 38 Stirling City Centre Scheme further provided discretion to consider the proposed use, having regard to the Stirling Regional Centre Precinct 4 Outline Development Plan and the Stirling City Centre Structure Plan. 3 Issue 2 was whether the proposed development would be inconsistent with the objectives of the Stirling Regional Centre Precinct 4 Outline Development Plan. The Tribunal did not find in the Stirling Regional Centre Precinct 4 Outline Development Plan support for the perimeter buildings to be used for uses inconsistent with the uses the Council has listed to achieve the objective at cl 1.3 of the Stirling Regional Centre Precinct 4 Outline Development Plan, which is to ensure 'development contributes to the overall identity' of the precinct. On balance, the Tribunal considered that the proposed development would be inconsistent with the objectives of the Stirling Regional Centre Precinct 4 Outline Development Plan. 4 Issue 3 was whether the proposed development would be inconsistent with the objectives and intent of the Stirling City Centre Structure Plan. The Tribunal found that the proposed development would not be consistent with achieving the intent and objectives of the City of Stirling Town Planning Scheme No 38 Stirling City Centre Scheme and the Stirling Regional Centre Precinct 4 Outline Development Plan. In that respect therefore, the proposed development would not be consistent with the objectives of the Stirling City Centre Structure Plan. (Page 4)
5 Issue 4 was whether the existing IKEA development established the proper context in which the application was to be considered. The Tribunal accepted that the IKEA development, which includes the IKEA showroom and the perimeter buildings, set the context for consideration of the proposed development. The Tribunal did not accept, however, that the IKEA use should be the 'benchmark' for the type of use that might be allowed as a matter of course in Precinct 4. The perimeter buildings are part of the existing physical context, but the Tribunal considered more significant, even in the shortterm, the use made of the buildings in light of the planning controls in place. 6 Issue 5 was whether the proposed development would set an undesirable precedent for development within Precinct 4. The Tribunal found that the proposed development was not unobjectionable and that there was more than a mere chance or possibility that there will be other undistinguished applications for showroom use in the perimeter buildings. The Tribunal concluded that an approval of the proposed development would set an undesirable precedent for showroom development in the southern half of Precinct 4. 7 The Tribunal dismissed the application for review and affirmed the refusal. 8 The applicant made an application for costs to be awarded against the respondent. The applicant said both the decision on review and the decision to defend the proceeding were unreasonable, and that the expert witnesses of the respondent did not discharge properly their obligations as expert witnesses. 9 The Tribunal did not find any basis for concluding that the respondent did not attempt to make a decision on the merits of the matter or acted unreasonably. The Tribunal also found that all the expert witnesses equally took seriously their obligations to the Tribunal. Each party was ordered to bear its own costs in the proceedings.
Introduction and background 10 These proceedings involve an application brought by MEA (a division of Hagemeyer Brands Australia Pty Ltd) (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision by the City of Stirling (Council, City or respondent) made on 17 June 2009 to refuse an application for development approval for a 'retail store fitout' for the purposes of a (Page 5)
showroom with ancillary offices at No 6 (Lot 215) Sunray Drive, Stirling (site).
Background, site and locality 11 In 1997, the Council adopted the City of Stirling Town Planning Scheme No 38 Stirling City Centre Scheme (TPS 38 or Scheme) to guide and control development in the Stirling City Centre, which extends about 1.4 kilometres from just south of Scarborough Beach Road northward to the interchange of Cedric Street and the Mitchell Freeway. Innaloo Shopping Centre is near the southern end on Scarborough Beach Road, and at the northern end in the centre of the freeway reserve is Stirling Railway Station. 12 TPS 38 divides the city centre area into seven precincts. Precinct 4 is at the northern end. The site is 4.8640 hectares and is the southern half of Precinct 4 bounded by Sunray Drive to the northwest, the Mitchell Freeway to the northeast, the vacant Stephenson Avenue road reserve and wetland to the southeast, and Ellen Stirling Boulevard to the southwest. 13 In about 2003, it was proposed that an IKEA store be developed on the site. Under the provisions of TPS 38, no development can occur until an outline development plan has been adopted for the precinct. In 2004, the Council adopted Stirling Regional Centre Precinct 4 Outline Development Plan (ODP). The ODP specifically mentioned the proposed IKEA use, which was classified as a 'showroom' under TPS 38. The ODP stated that the IKEA showroom was to be a 'short-term' development allowed as a catalyst for other development in Precinct 4. 14 In October 2005, the City granted development approval for an 'IKEA showroom and retail development' on the site. The IKEA showroom was approved for 50 years, after which the use 'may not lawfully continue'. The ODP included a long-term indicative development plan for when the IKEA use ceased. 15 The IKEA showroom is a large, centrally located, monolithic building which dominates the site. It is surrounded by parking. The 'retail development' included in the development approval comprised four smaller buildings located around the perimeter of the site (perimeter buildings), separated from the IKEA building by the car parking. Perimeter buildings 1 and 2 front and abut Sunray Drive, and perimeter buildings 3 and 4 front and abut Ellen Stirling Boulevard. A note in the Council's development approval said that the perimeter buildings (Page 6)
were to be used for 'retail and offices', although application could be made for other uses. Existing uses of the perimeter buildings include a fabric shop, children's clothing, footwear, a chemist, a surf shop and offices in an upper floor in the easternmost building. 16 The proposed development would occupy a vacant tenancy of about 317 square metres in perimeter building 4 facing Ellen Stirling Boulevard to the south-west of IKEA. Perimeter building 4 has two other tenancies, both of which are occupied by a shop selling outdoor clothing and camping gear. 17 The northern half of Precinct 4, north of Sunray Drive, has a number of vacant lots serviced by constructed roads. To the west of the site across Ellen Stirling Boulevard is a residential area and to the southwest across Ellen Stirling Boulevard is the Innaloo Shopping Centre.
Proposed development 18 The applicant sought approval to carry out in the 317 square metre vacant tenancy of perimeter building 4 what was described as a 'retail store fitout' to create a showroom with ancillary offices and a boardroom. The purpose of the fitout was to display household appliances, mainly ovens and cook tops. There would be no selling of the products from the premises. Home owners, tradespeople and building firm representatives who visited the site who wished to purchase the products would be directed to appliance retailers and wholesalers elsewhere in the locality. Mr Ian Woodhouse, the National Sales Manager for Blanco, the manufacturer of the cooking appliances, also explained that, in addition, there would be regular cooking demonstrations to show potential customers how the appliances might be used. The applicant has leased the vacant tenancy until 2016. 19 In TPS 38 at Sch 1 is the definition: SHOWROOM means a building wherein goods are displayed and may be offered for sale by wholesale and/or by retail, excluding the sale by retail of foodstuffs, liquor or beverages, items of clothing or apparel, magazines and newspapers, books or paper products, medical or pharmaceutical products, china, glassware or domestic hardware, or items of personal adornment; 20 It was common ground between the parties that the proposed development is a use appropriately categorised as 'showroom' under the definition in TPS 38. In essence, proposed is development comprising (Page 7)
a 'use', and there would be no material additions or alterations to the fabric of the building.
Planning framework 21 The three planning instruments relevant to the assessment of the proposed development are: 22 TPS 38 gazetted July 1997 and updated August 2008; 23 ODP adopted by the Council and certified by the Western Australian Planning Commission August 2004; and 24 Stirling City Centre Structure Plan (Structure Plan) adopted by the Council in October 2008. 25 The site is within an area zoned Central City Area under the Metropolitan Region Scheme (MRS). The site is within an area zoned City Centre under the provisions of TPS 38. The relevant provisions of the three local planning instruments are included in the discussion on the issues below.
Council's decision 26 On 17 June 2009, the respondent refused the proposed development for the following reasons: Issues 27 Each of the parties prepared a list of issues arising. The four town planners called as expert witnesses together prepared a similar list. The issues arising in the matter are: (Page 8)
3) Whether the proposed development would be inconsistent with the objectives and intent of the Structure Plan. 4) Whether the existing approved IKEA development establishes the proper context in which this application is to be considered. 5) Whether the proposed development would set an undesirable precedent for development within Precinct 4.
Discussion
Issue 1: Whether a showroom development would be inconsistent with the provisions of TPS 38 28 The 'general objectives' of TPS 38 at cl 1.14.1 include: 29 Subclause 1.14.2 lists the 'specific objectives' of TPS 38. These include: a) to create an 'urban centre' with readily identifiable character within the Scheme Area; … c) to ensure that future growth and development which occurs in the Scheme Area is in accord with the adopted elements of the Structure Plan and all the planning policies of the Council. … f) to encourage the replacement of inappropriate uses and development 30 Under cl 5.3 of TPS 38, the City Centre zone is divided into nine precincts. Adjacent to Scarborough Beach Road, Precinct 1, Precinct 2, Precinct 8 and Precinct 9 include commercial, mixed use, and entertainment areas, including the Innaloo Shopping Centre in Precinct 1. Precinct 3 and Precinct 5 are residential. The site is in Precinct 4 at the northern edge of the City Centre zone. (Page 9)
31 Clause 5.4 of TPS 38 is headed 'Development in precincts' and it includes the following subclauses: 5.4.1 For the purposes of promoting the objectives of the Scheme, and subject to any provisions of this part to the contrary, the Council in dealing with any development application shall encourage a mixture of land uses throughout the Scheme area. 5.4.2 For the purposes of this part, 'preferred uses' are uses that Council will encourage whilst 'contemplated uses' are those which Council will consider subject to the objectives of the Scheme. … 5.4.5 Where under this Part a use is not a referred use or contemplated use in a precinct or is a use that is not mentioned or defined in the Scheme or is not included in the general terms of the uses defined or is not normally part of the conduct of any of the uses defined[,] then in dealing with a development application in that precinct involving that use[,] the Council: (a) may consider the application only after appropriate advertising … (b) may approve the application after due consideration of the matters referred to in cl 2.8 and any relevant submission, subject to any conditions it considers appropriate; or (c) may refuse the application. … 32 Most provisions directly relevant to the proposed development are found in TPS 38 at cl 5.8 Precinct 4: Mixed use office and entertainment precinct. A 'statement of intent' for Precinct 4 at cl 5.8.1 of TPS 38 states: This Precinct is considered to be a key area in terms of the success of the Stirling Regional Centre and its integration with the Stirling Railway Station. … Cycleway/pedestrian links are proposed between this Precinct and other Stirling City Centre Precincts, to the residential areas and the [Stirling] Railway Station. The major land uses within this precinct will comprise a large high-rise office park with buildings having accessibility and visual exposure to both the station and the freeway. Major car parking areas are proposed to be accessed off the realigned Oswald Street and Cedric Street as required. (Page 10)
The office towers are recommended up to 12 storeys in height adjacent to the Stirling Railway Station. In association with the office park, it is proposed to develop an entertainment/residential node at a lower scale (ie eight storey maximum height) containing uses such as a tavern/brasserie, al fresco restaurants and markets surrounding a central open piazza. Major 'people' attractions such as cinemas and public amusement/leisure centres are considered essential as it is envisaged that this area will be a focus of nightlife activity based on proximity to public transport and pedestrian links; and to the Mitchell Freeway. It will also offer limited support retail facilities for office workers in the office park. A significant provision of residential development both in stand alone and mixed use buildings will be encouraged by Council. … 33 At cl 5.8.2 of TPS 38, there is listed the 'preferred uses' for Precinct 4 that the City will 'encourage', and at cl 5.8.3 are the 'contemplated uses' the City will 'consider', as provided for under cl 5.4.2. 'Showroom' is not a 'preferred' or 'contemplated' use in Precinct 4. 34 As the parties agreed, however, cl 5.4.5 of TPS 38 sets out how to deal with a development application for a use that is neither a 'preferred' or a 'contemplated' use. The proposed development was advertised as required by cl 5.4.5(a) of TPS 38. The respondent did not reveal any submissions that were required to be considered as part of these proceedings. Clause 5.4.5(b) of TPS 38 requires that due consideration be given to matters referred to in cl 2.8, and these include, at cl 2.8.1 of TPS 38: (a) any matter which it is required by the Scheme to consider; … (c) any relevant Policy made pursuant to this Scheme; (d) the requirements of orderly and proper planning; (e) the preservation of the amenity of the area; and (f) the provisions of Clause 4.5.1. 35 Clause 4.5.1 of TPS 38 states, relevantly: (Page 11)
36 The respondent said that the proposed development would be inconsistent with the provisions of TPS 38. In cl 5.8.1 of TPS 38, Precinct 4 was referred to as a 'key area', and the respondent said that the directions given for development in Precinct 4 ought therefore to be given particular weight; that is, 'preferred uses' and 'contemplated uses' encouraged. The respondent said showroom uses were identified as preferred or contemplated in Precinct 1, Precinct 2 and Precinct 6 not Precinct 4 to achieve the intent of TPS 38. 37 Mr Ken Adam, an architect and town planner with experience in urban design called by the respondent, was of the opinion that the proposed development should only be considered if it made an active contribution to the intended future of Precinct 4. He said that for the proposed development, no such inference could be drawn, having regard to the statement of desired future uses for Precinct 4 set out at cl 5.8.1 of TPS 38. 38 Mr Neil Maull, a town planner and the senior development assessment officer at the City, was called as a witness by the respondent. Mr Maull referred to the intention expressed in cl 5.8.1 of TPS 38 of integrating the city centre, particularly the shopping centre, with the railway station, by the development of a pedestrian link. He was of the opinion that the proposed development was inconsistent with the provisions of TPS 38 because it would not achieve the intended intensification of pedestrian movement at street level. A major pedestrian crossing of Ellen Stirling Boulevard was to be located near the proposed development, and he considered a showroom use was not appropriate for this location. 39 The applicant said that the use of the term 'key' for Precinct 4 did not mean everything associated with the precinct had any greater significance than it might otherwise have. Each precinct was significant for the purposes for which it was created. Precinct 4 was not too important to allow even such a relatively minor use as proposed to be contemplated. It was the opinion of Mr Jordan Ennis, a town planner and project manager called as a witness by the applicant, that the proposed development will not be inconsistent with the provisions of TPS 38, on the basis that it will be within perimeter building 4 approved under TPS 38. Clause 2.8 of TPS 38 requires consideration of all relevant matters, and this must necessarily include the existing context of the approved IKEA use and perimeter building 4. The planning decision cannot be made on the basis of an imagined state of affairs, but rather, only upon the real circumstances governing the site. (Page 12)
40 Mr Tony Shrapnel, a town planner experienced in the planning of urban centres, urban economics and urban design, also called by the applicant to give evidence, said that the discretion available pursuant to cl 5.4.5 of TPS 38 should be exercised in favour of the proposed development. Consistent with matters required to be considered under cl 2.8.1 of TPS 38, the proposed development would not adversely affect the amenity of the locality. Given the existing perimeter building and its particular context, Mr Shrapnel considered the proposed showroom use would be consistent with the requirements of orderly and proper planning. 41 Mr Shrapnel also gave a lucid account of how certain showroom uses, such as that proposed, might attract more customers than would a 'preferred' shop catering to a specific market, such as stamps and coins or military memorabilia. In his opinion, concern about the impact of the proposed use on the desired movement of pedestrians between the railway station and the shopping centre was misguided. 42 The Tribunal is inclined to agree with Mr Shrapnel that, in isolation, the proposed development would have little bearing on the ultimate use made of pedestrian links in Precinct 4, which will eventually include a yet to be built pedestrian bridge above the freeway to the railway station and crossings of Ellen Stirling Boulevard to the precincts to the south. 43 The Tribunal considers that if the statement of intent for Precinct 4 at cl 5.8.1 of TPS 38 were the only consideration, the proposed showroom development would be inconsistent with TPS 38. A showroom is not a 'preferred' or a 'contemplated' use identified to achieve a precinct of offices, an 'entertainment/residential' node, people attractors such as 'cinemas and public amusement/leisure centres' or related retail activities. 44 The Tribunal accepts that any 'preferred' or 'contemplated' use in existing perimeter building 4 could not be of the scale set out in cl 5.8.1 of TPS 38, but does not agree with the submission of Mr Ennis that the proposed use should be allowed because there is a limited range of uses suitable for the vacant tenancy within the existing perimeter building. Mr Adam, the only architect witness, made the point that the existing building could be adapted to uses consistent with the 'preferred' and 'contemplated' uses for Precinct 4 in TPS 38. 45 Clause 5.4.5 of TPS 38, however, provides discretion to consider a showroom. TPS 38 also requires that in considering a development application, consideration be given to relevant policies and structure plans, including cl 1.14.2(c) and cl 2.8.1(c) of TPS 38. Clause 5.8.4(b)(i) (Page 13)
of TPS 38 provides that '[a]n Outline Development Plan for the whole precinct is required prior to approval of development on any one site' and cl 5.8.4(j) states that no development shall commence until the development of an Outline Development Plan. 46 Consideration of the proposed development in light of the ODP and the Structure Plan is the concern of the following issues.
Issue 2: Whether the proposed development would be inconsistent with the objectives of the ODP for Precinct 4 47 In the summary in the 'Overview', at 5 of the ODP, it states that: The Outline Development Plan proposes a short-term and longterm plan. The short-term plan includes the provision of an IKEA showroom which will act as a catalyst for the development of the Precinct, while the longterm plan is provided once IKEA relocates in 20 50 years. 48 Part 1 of the ODP, at 6, is the 'Statutory Planning Section'. Under the heading 'Subdivision and development requirements', it states: The subdivision and development is to be generally in accordance with the short-term Outline Development Plan (Plan 1). On relocation of the IKEA store, the subdivision and development is to be generally in accordance with the long-term Outline Development Plan (Plan 2). 49 Part 1 of the ODP also includes 'Urban Design and Building Guidelines'. These include the provisions on land uses and development standards and requirements relevant to the proposed development, which are essentially restatements of the clauses of TPS 38 on land uses and development relevant to Precinct 4. The 'Guideline Objectives', at cl 1.3 of the ODP, include: - to ensure the proposed developments are part of a cohesive, and attractive extension of Stirling Regional Centre; - to ensure that the design and development contributes to the overall identity; - to provide a context for a range of scales and forms of business; - to ensure development is responsive to pedestrian movement … … 50 Clause 1.4 of the ODP states that the guidelines have been adopted as policy within TPS 38 and, in determining planning applications, (Page 14)
the guidelines are to be used as the 'primary assessment criteria' in conjunction with TPS 38. 51 In Part 2 'Explanatory Report' at 46 and 47of the ODP under 'Proposed land uses', it states in reference to the then proposed IKEA use: Precinct 4 will provide for a mixture of land uses that are generally defined under Town Planning Scheme No 38 as either preferred or contemplated uses. The key development which will provide the catalyst to the development include a showroom which is a use not listed. Under clause 5.4.5 the Council can consider approval of the showroom subject to: • advertising the application in accordance with clause 2.7; • due consideration being given to the matters set out in clause 2.8. As previously discussed the proposed IKEA showroom is seen as a shortterm catalyst for development. The store will have a limited life of approximately 30 years and will attract other mixed use developments to the area, based upon its size and consumer attraction. 52 The experts, in their joint statement, noted the contemplation in the ODP that development of the site, which is the southern half of Precinct 4, is to be in two distinct stages. The first stage, the IKEA development, was approved as a 'shortterm catalyst for development'. The second stage is to achieve the longterm objectives, which are to encourage an urban centre of a more intensive nature. It would only be on the removal of the IKEA building that the urban centre in the long-term indicative plan for Precinct 4 could be achieved and the road connections identified at cl 5.8.4(j)(ii) of TPS 38 put in place. 53 Mr Ennis emphasised the difference between the shortterm and longterm indicative development plans of the ODP. He pointed out that the applicant is seeking an approval for '15 years', which is within the shortterm timeframe of the ODP. Mr Ennis said that the condition of the 2005 development approval imposing a 50 year time limit on the life of the IKEA development was relevant to the perimeter buildings. At the time of the redevelopment of the IKEA building, the perimeter buildings within which the vacant tenancy exists would also be redeveloped and this would enable the implementation of the longterm indicative development plan for stage 2 of Precinct 4. 54 It was the view of Mr Ennis that the proposed development would not, therefore, be contrary to the longterm objectives for Precinct 4, (Page 15)
nor would it prejudice any future development on the balance of the northern portion of Precinct 4. Mr Ennis considered that in this context, the proposed development, being neither a preferred nor a contemplated use, would not be inconsistent with orderly and proper planning. The proposed development would attract a sufficient number of people and, in some instances, would exceed the level of patronage of an office or a shop use, which are among the preferred land uses. 55 Mr Shrapnel was similarly of the view that the ODP envisages shortterm development within the southern section of Precinct 4. The respondent has shown by the approval of the IKEA development that a showroom is an acceptable shortterm development. The proposed development would be acceptable in this context and would not be inconsistent with the longterm objectives and intent of the ODP. 56 It was the concern of Mr Maull that the proposed development would not result in an active street frontage required by the ODP. In this respect, he emphasised the objective of encouraging pedestrian movement. 57 Mr Adam identified the overall identity of the precinct as being strongly related to the stated uses of intensive residential, office and entertainment, with an element of retail development. He considered that showrooms were out of place in that identity. Mr Adam referred to the reference, at 46 of the ODP, that the IKEA showroom was to provide a shortterm catalyst for development. He said no similar claim could be made for the proposed showroom. He was of the view that the proposed development was inconsistent with the specific land use preferences of the ODP. 58 The Tribunal noted that the proposed use would be in existing approved perimeter building 4. A use with a lifespan of the 15 years referred to by Mr Ennis or the term of the current lease would not have any impact on the ultimate redevelopment of the IKEA building or of the perimeter building at the time the longterm Precinct 4 plans for the site were to be implemented. The Tribunal considers, however, that more significant than the existence of the perimeter building in its current form is the use to which it is to be put while it remains in place. 59 The Tribunal does not find in the ODP support for the perimeter buildings to be used for uses inconsistent with the uses the Council has listed to achieve the guideline objective at cl 1.3 of the ODP of ensuring 'development contributes to the overall identity' of the precinct. (Page 16)
60 As stated above, use of the perimeter tenancies was specifically mentioned by the respondent in the advice notes of the 2005 development approval; that is, shop and office uses were permitted, and other uses from the list of 'preferred and contemplated uses' of TPS 38, which are restated in the ODP, would be subject to an application for change of use. The ODP recognises the IKEA showroom as inconsistent with the longterm intent of Precinct 4 but, at 46 and 47, distinguishes it as a catalyst to attract 'other mixed use developments'. IKEA has a mix of the 'preferred' uses of retail, restaurant and parking and 'not listed' showroom. 61 The ODP at 46 states that Precinct 4 will provide for a 'mixture of land uses' that are generally defined under [TPS 38] as either 'preferred or contemplated uses'. The proposed development includes only a 'showroom', a use not included in that mixture of uses (the appliance demonstration is not considered to be an 'educational establishment'). The Tribunal does not interpret the ODP as leaving open that same ground for departure from the uses preferred and contemplated for Precinct 4 that was afforded the IKEA use for the tenancies of the perimeter buildings, even though the buildings were approved and constructed at the same time as the IKEA building. The objective of the IKEA use being a catalyst for a mixture of uses consistent with the development approval and the listed uses of the ODP is noted to have had some success with the retail uses and an office established in the perimeter buildings. 62 The ODP is to be read in conjunction with TPS 38, and other uses can be contemplated under cl 5.4.5 of TPS 38, but subject to the matters identified in cl 2.8.1 of TPS 38. The Tribunal does not consider it would be consistent with orderly and proper planning (cl 2.8.1(d) of TPS 38) to set aside the intent of encouraging identified uses in Precinct 4, even if the uses are to be for the short term and would be in buildings that might ultimately be demolished to achieve the longterm planning goals for the precinct. 63 On balance, the Tribunal considers that the proposed development would be inconsistent with the objectives of the ODP.
Issue 3: Whether the proposed development would be inconsistent with the objectives of the Structure Plan 64 At cl 1.1 of the Structure Plan, reference is made to Stirling being an important regional centre, and states that 'the study area has therefore been defined to allow the important regional influences and considerations to be taken into account'. The Structure Plan area is divided into seven precincts which differ from the precincts of TPS 38. Precinct 4 of TPS 38 (Page 17)
falls within 'Precinct 2: Station' of the Structure Plan, which is described as 'all the land within a 400 metre radius from the existing Stirling Station'. Clause 5.3 of the Structure Plan identifies that 'Stirling Station is the busy heart of the city centre and the focus for the most intense activity and development'. It will be characterised by: A scale and intensity of built form that is matched to the high level of activity it is the visual and economic centre of the city: A predominant sensibility of office and commercial activity it is the business part of the city Business and community services to support local working population, focused around the station and urban plazas. … 65 The four expert witnesses agreed that the Structure Plan provides a framework for the entirety of the Stirling city centre, rather than detail for development within individual precincts. On that basis, the parties and the experts agreed that the principles in TPS 38 and the ODP are more directly relevant in determining whether to grant planning approval to the proposed development. 66 The Tribunal is of the view that if the proposed development is found to be consistent with TPS 38 and the ODP, it will be consistent with the objectives of the Structure Plan. The Tribunal has found, however, that the proposed development is not consistent with achieving the intent and objectives of TPS 38 and the ODP. In that respect therefore, the proposed development is not consistent with the objectives of the Structure Plan.
Issue 4: Whether the existing approved IKEA development establishes the proper context in which this application is to be considered 67 The approval of the 'IKEA showroom and Retail Development' on 26 October 2005 resulted in construction of the IKEA building and the four perimeter buildings on the site. The IKEA showroom use in the IKEA building was made valid until 26 October 2055, after which date the use may not lawfully continue. The perimeter buildings had no such time limited approval. Advice note 3 of the Council's 2005 approval stated: Shop and office uses are permitted in the perimeter tenancies. Other uses will be considered under the preferred and contemplated uses of the (Page 18)
Scheme however will be subject to a planning approval for a change of use. 68 As set out above, at 46 and 47 of the ODP under the heading 'Proposed land uses', the IKEA 'showroom' use was not a use listed in the 'preferred' or 'contemplated' uses but was approved as a catalyst in the shortterm to 'attract other mixed use development into the area based on its size and consumer attraction'. The applicant noted that, somewhat 'strangely', shortterm was seen as 50 years. 69 The applicant said that there was nothing in the ODP to the effect that the catalysing effect of IKEA showroom use was to exclude from consideration the type of use proposed by the applicant. The catalyst was for the development of 'mixed uses' without defining or limiting what those ought to be. It was the applicant's submission that, because of the approval of the IKEA development, it can properly be inferred that the use of the perimeter buildings for the 'preferred' and 'contemplated' uses of TPS 38 and the ODP was not what was planned for the short term. 70 Counsel for the applicant said there was a very strong inference that the perimeter buildings, approved with the IKEA showroom, would be demolished at the same time as the IKEA building was demolished. This was because the outline of the perimeter buildings, including that with the vacant tenancy, was shown on the shortterm indicative plan but not on the longterm indicative development plan of the ODP. It was not the applicant's case that the proposed use should be permitted merely because it is compatible with the IKEA use. Rather, for so long as the IKEA building is there, there is no reason why the proposed use should not be permitted. The decision to allow the IKEA development was a planning decision of such substance that it has inevitable consequences, one of which is to give rise to how the perimeter buildings are to be used while they are there. That is, said the applicant, the IKEA building and the perimeter buildings cannot be merely dismissed as a 'special case', as asserted by the respondent. 71 Mr Shrapnel was of the opinion that the IKEA development is totally dominating, and thus determinative, of the context of the subject premises. He said that orderly and proper planning requires that the context of a proposed discretionary use be fully taken into account. To assess the development imagining that IKEA is not there is not, in his view, a proper planning principle on which to base a decision. Mr Shrapnel said that, in the shortterm, the presence and nature of the IKEA building completely negates much of the underlying rationale of TPS 38 (Page 19)
and the ODP as far as the vacant tenancy is concerned, and the proposed use should be allowed. 72 The respondent said IKEA was seen as a compromise or concession to expediency, the expediency being the creation of an impetus or catalyst to the establishment of appropriate uses in Precinct 4. It was the evidence of Mr Adam and Mr Maull that IKEA was many uses in one building, including showroom, warehouse, retail sales and café. The IKEA use would most likely be compatible with a wide range of inappropriate uses for Precinct 4, as well as uses that are preferred or contemplated. The respondent's submission was that the IKEA development was a special case because it had a strong retail element and would be a strong attraction for people an important element for Precinct 4. 73 In the respondent's submission, it could be inferred in the circumstances that the IKEA showroom was approved because of its intended effect as a catalyst for the development of appropriate uses, not just any uses in Precinct 4. The existing uses in the perimeter buildings have been approved as 'shop' uses and are retail in character, consistent with the advice note of the 2005 planning approval. It would be unfortunate if the decision to allow the IKEA building as a catalyst for development of appropriate uses in Precinct 4 was now to be used during the time the IKEA use was in place as a justification for approval of an inappropriate use that would erode the ultimate intent of Precinct 4. The respondent said that, in that context, the proposed development cannot be justified on planning grounds. 74 The Tribunal accepts that the IKEA development sets the context for consideration of the proposed development. The Tribunal does not accept, however, this context provides a basis for approving any use as a matter of course, and particularly that the IKEA use should be, to use the term used by Mr Maull and Mr Adam, the 'benchmark' for the type of use that might be allowed. The context allows uses to be approved in the tenancies of the existing perimeter buildings, even though the buildings are not of the scale mentioned in the statement of intent for Precinct 4 in TPS 38. The perimeter buildings are the existing physical context. The uses to which the perimeter buildings are put must be considered in the light of the provisions of TPS 38 and the ODP. The Tribunal has found, above, that the proposed use, even in the physical context of the existing IKEA development, is not consistent with the planning intent for Precinct 4 as identified by the provisions of TPS 38 and the ODP. (Page 20)
Issue 5: Whether the proposed development would set an undesirable precedent for development within Precinct 4 75 The applicant, referring to Goldin and Minister for Transport (2002) 121 LGERA 101 (Goldin) cited in Nicholls v Western Australian Planning Commission [2005] WASAT 40 (Nicholls), restated that, to find that the proposed use constitutes an undesirable precedent, the Tribunal must be satisfied: 76 The applicant considered the proposed use to be, in itself, unobjectionable, having no impact on amenity, parking or traffic, and being a use compatible with the IKEA showroom. The applicant said that the only planning objection was that there may one day be a use proposed for the tenancy which could be classified as a 'preferred' or 'contemplated' use and, as a matter of policy, other uses must be disallowed until that day arrived. The applicant considered the planning instruments did not allow for such an approach. It was questionable, in any event, how such a small tenancy is conducive to advancing the purposes of Precinct 4 under TPS 38. Mr Ennis considered that as perimeter building 4 already exists, the use to which that building is put does not set a precedent. 77 The applicant also considered that there was no evidence adduced to suggest that there is anything more than a mere chance or possibility that there may be undistinguishable applications. The applicant considered that there was a failure to satisfy both the tests enunciated in Goldin and Nicholls. 78 The applicant submitted that: As a matter of logic, it is difficult to imagine how the proposed use could constitute a more undesirable precedent for the future development of Precinct 4 than constituted by the ODP and the IKEA development approvals. Neither of those instruments are consistent with the Statement of Intent for Precinct 4, as explicitly acknowledged in the ODP, and the structures may be there for a further 45 years. This proposed use is for a fraction of the time, and a fraction of the space. (Page 21)
79 The applicant said that 'having permitted the IKEA development to catalyse mixed uses, in its submission without limitation, it cannot be reasonably said that the proposed use in this case sets an "undesirable precedent"'. 80 The respondent said that the precedent argument was incidental to its case that the proposed development would be contrary to TPS 38 and the ODP and therefore the Structure Plan. The respondent considered, however, that an approval of the proposed showroom 'would have the potential for a powerful precedent effect'. 81 The respondent considered that the applicant was seeking to rely on the precedent of the IKEA showroom approval by the indirect argument of compatibility. It was the respondent's concern that, while the showroom proposed in the development application would not itself represent a powerful precedent, if it were approved relying upon the IKEA showroom precedent, then the precedent potential of the proposed development would be magnified. The other perimeter buildings were said by the respondent to be in a similar situation to the vacant tenancy, and therefore ideal for changes similar to any approval of the proposed showroom development. 82 The respondent said there were strong indications the proposed showroom was objectionable. This was because a showroom was neither a preferred or contemplated use in TPS 38 or the ODP for Precinct 4, would be in a precinct of the ODP where showrooms were not a preferred use, and a showroom was not a suitable use for the critical position on the anticipated pedestrian path between the railway station and the entertainment and shopping part of the Stirling City Centre. 83 Mr Adam and Mr Maull looked at Precinct 4 as a whole and made the comment that, notwithstanding the provisions of the ODP, any approval would set an undesirable precedent, and potential developers of land in the northern half of the precinct would seek approval for showroom development. Mr Adam was of the opinion that once any appropriate development occurs within the northern part of the precinct, particularly at the Ellen Stirling Boulevard frontage, the entire street frontage will become more prominent and active, consistent with the objectives of the ODP. He considered that it was therefore most important to encourage intensive development at all times consistent with the preferred and contemplated uses. Other uses, such as that proposed, would reduce the potential of both activity and attractiveness of the street (Page 22)
frontage, and would therefore be detrimental to the desired future development of the precinct. 84 The Tribunal agrees with Mr Ennis that the northern half of Precinct 4 is distinguishable from the site because it is vacant land for which the shortterm indicative plan and the long-term indicative plan of the ODP are the same. 85 In respect of the site, the Tribunal considers it appropriate to restate from the discussion on Issue 2 that, in the advice notes of the 2005 development approval, use of the perimeter buildings for shop and office uses was permitted, and other 'preferred and contemplated uses' for Precinct 4 from the list found in TPS 38 would be subject to an application for change of use. The ODP recognised the IKEA showroom as inconsistent with the longterm intent of Precinct 4, but distinguished it as a catalyst. As discussed under issue 2, the Tribunal does not interpret the 'special case' use of the IKEA building in the ODP as leaving open use of tenancies in the perimeter buildings for uses that depart from the list of preferred and contemplated uses for Precinct 4. 86 Contemplation of other uses, as provided for under cl 5.4.5 of TPS 38, is subject to the matters identified in cl 2.8.1. Clause 2.8.1(d) of TPS 38 requires regard be had to orderly and proper planning. The Tribunal does not consider it would be consistent with orderly and proper planning to set aside the intent in TPS 38 and encourage uses inconsistent with achieving the stated intent of Precinct 4, even if the use would be for the short term in a building that might be demolished to achieve the longterm planning goals for the precinct. The Tribunal has therefore formed the view that the proposed use is not unobjectionable. 87 The Tribunal does not consider that perimeter building 4 with the vacant tenancy is distinguishable from the three other perimeter buildings. It is separated from the other three buildings by the edge of the IKEA building, but is sufficiently similar to be indistinguishable because of the relationship of all perimeter buildings to the IKEA building, parking areas, road frontage and generally in the arrangement of tenancies within the buildings. All buildings are shown on the shortterm indicative development plan of the ODP and not on the longterm indicative development plan and so are subject to the same considerations. 88 The Tribunal does not consider it necessary for there to be adduced evidence that change of use to showroom for other tenancies is contemplated, as asserted by the applicant. Others considering change (Page 23)
of use of other tenancies in the future would consider any approvals issued. The Tribunal is of the view that there is more than a mere chance or possibility of undistinguishable applications, particularly for the same reasons that make the proposed development an attractive use for a vacant tenancy; that is, the presence, character and size of IKEA, ready access for vehicles and the proximity of retailers and wholesalers nearby in Osborne Park and Balcatta that might sell products shown in a showroom. 89 The planning undertaken by the respondent for the Scheme area resulted in precincts being identified for particular defined uses to create a mix of uses in the City Centre zone. There is no physical or amenity constraint on the proposed use being located in Precinct 4. The Tribunal has, however, concluded that there is a planning argument for not allowing the proposed use in Precinct 4, even in the short term, and therefore considers that an approval of the proposed development would set an undesirable precedent for development inconsistent with the planning objectives for Precinct 4.
Conclusion 90 Issue 1 required consideration of whether a showroom development would be inconsistent with the provisions of TPS 38. As stated in the discussion above, the Tribunal formed the view that the proposed development is inconsistent with the statement of intent for Precinct 4 as set out in cl 5.8.1 of TPS 38. However, the provisions of TPS 38 provide discretion to consider the proposed use. In exercising that discretion, the objectives of TPS 38 must be considered, and these require that regard to be had to the OPD and the Structure Plan. This leads to consideration of Issue 2 and Issue 3. 91 Issue 2 was whether the proposed development would be inconsistent with the objectives of the ODP for Precinct 4. The ODP provides that development of the site is to be in two distinct stages. The first stage, the IKEA development, was approved as a 'shortterm catalyst for development'. The second stage, which can only be fully commenced on the removal of the IKEA use and redevelopment of the buildings on the site, is to achieve the longterm objective of encouraging a more intensively developed urban centre. 92 The Tribunal considers more significant than the existence of a perimeter building in its current form, is the use to which the building is to be put while it remains in place. The Tribunal does not find in the ODP support for the perimeter buildings to be used for uses inconsistent with the uses the Council has listed to achieve the guideline objective, at cl 1.3 (Page 24)
of the ODP, of ensuring 'development contributes to the overall identity' of the precinct. The proposed use would be contrary to the uses identified to achieve the intent of Precinct 4, even if the use was for the short term and would be in a building that might ultimately be demolished. 93 On balance, the Tribunal considers that the proposed development would be inconsistent with the objectives of the ODP. 94 Issue 3 was whether the proposed development would be inconsistent with the objectives and intent of the Structure Plan. The Tribunal considered that, if the proposed development were found to be consistent with TPS 38 and the ODP, it would be consistent with the objectives of the Structure Plan. As set out in the discussion on Issue 1 and Issue 2, the Tribunal found that the proposed development was not consistent with achieving the intent and objectives of TPS 38 and the ODP. In that respect therefore, the proposed development is not consistent with the objectives of the Structure Plan. 95 Issue 4 considered was whether the existing approved IKEA development establishes the proper context in which this application is to be considered. The IKEA development sets the context for consideration of the proposed development. The Tribunal does not accept, however, this context provides a basis for approving any use as a matter of course and, particularly, that the IKEA use should be the 'benchmark' for the type of use that might be allowed. 96 The perimeter buildings are the existing physical context, with the tenancies available for use, even though the buildings are not of the scale mentioned in the statement of intent for Precinct 4 in TPS 38. The uses to which the perimeter buildings are put must be considered in the light of the provisions of TPS 38 and the ODP. The Tribunal has found that the proposed use, even in the physical context of the existing IKEA development, is not consistent with the planning intent for Precinct 4 as identified by the provisions of TPS 38 and the ODP. 97 Issue 5 was whether the proposed development would set an undesirable precedent for development within Precinct 4. On the basis of the two tests set out in Goldin andNicholls,the Tribunal has found, in respect of the first test, that the proposed development is 'not unobjectionable'. This was because the advice notes of the 2005 development approval state that use of the perimeter tenancies for shop and office uses was permitted, and other 'preferred and contemplated uses' for Precinct 4 from the lists found in TPS 38 would be subject (Page 25)
to an application for change of use. A showroom is not in those lists for Precinct 4. The ODP recognised the IKEA showroom as inconsistent with the longterm intent of Precinct 4, but distinguished it as a catalyst for development. The Tribunal does not consider the proposed use can be similarly distinguished. An approval of the proposed use would not be consistent with orderly and proper planning because it would be contrary to the provisions of TPS 38 of encouraging uses consistent with achieving the stated intent of Precinct 4. 98 On the second test, the Tribunal has formed the view that there is more than a mere chance or possibility of undistinguishable applications for showroom use in the perimeter buildings. This is, particularly, for the same reasons that make the proposed development an attractive use for a vacant tenancy; that is, the presence, character and size of IKEA, ready access for vehicles, and the proximity of retailers and wholesalers nearby in Osborne Park and Balcatta that might sell products shown in a showroom. 99 The Tribunal has concluded that an approval of the proposed development would set an undesirable precedent for showroom development in the southern half of Precinct 4. 100 From the conclusions it has drawn in respect of each of the issues, the Tribunal decided to dismiss the application for review.
Costs 101 The applicant said both the decision on review and the decision to defend the proceedings were unreasonable, and this justifies a special costs order. This was because, in summary: a) the ground of objection that the use would set an undesirable precedent was unsustainable as a matter of law because the proposed use was not, in itself, objectionable and there was no evidence of the likelihood of further 'undistinguishable applications'; b) no attempt was made by the respondent or planning officers of the respondent to have due regard to the whole of the ODP, omitting, for instance, any reference to the distinction between the short-term and the long-term plan in the ODP, the intended catalysing effect of the IKEA development or that the proposed use was for a small fraction of the area and time which had been allowed for (Page 26)
102 The applicant submitted that there was no reasonable basis for the respondent's opposition to this application or for rejecting the application in the first place and the respondent should pay all the applicant's costs of this application under s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). 103 The respondent's response was to categorically deny that anything in the City's decisionmaking process or in the presentation of its case would justify the awarding of an order for costs against the respondent, whether or not the applicant was successful. 104 The respondent said the application was for approval of a use which, under the provisions of TPS 38 and the ODP, is not indicated as an appropriate use that is, 'the applicant and its advisors, should not seriously have contemplated that the City would surrender the principles and intent of its planning instruments on such a critical site in a critical Precinct, in a critical planning area such as the Stirling City Centre without ensuring that the issues are thoroughly explored'. The application for costs should therefore be dismissed. 105 The SAT Act provides, at s 87(1), that parties bear their own costs in a proceeding of the Tribunal. As the applicant prefaced its submission, the normal position in the Tribunal is that each party bear its own costs for the reasons outlined by the Tribunal in Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53. 106 In M Hardy, (Ed) State Administrative Tribunal (WA) Law, Practice and Procedure (2008) at [2 2669], the learned authors write: The approach taken by the Tribunal to the award of costs in its review jurisdiction is that there must be some exceptional reason for ordering that one party must pay the costs of another. Usually, an exceptional reason (Page 27)
will be in the nature of the matters referred to in s 87(4) or that one party has conducted itself unreasonably in some respect so that the other party has been put to unnecessary expense. If there is no such unreasonable conduct, costs will not generally be awarded: Firestar Enterprises Pty Ltd and Town of Vincent [2007] WASAT 100 at [15]; Godenzi and City of Joondalup [2007] WASAT 189 at [24]. 107 Section 87(4) of the SAT Act sets out, but does not limit, factors to be considered by the Tribunal where a party applies for costs in relation to a proceeding. If the order is sought against a party which is the decisionmaker, a relevant question is whether the decisionmaker genuinely attempted to make a decision on its merits. 108 The Tribunal has found from the submissions of the respondent and the documents provided in the respondent's and applicant's bundles of documents, as well as included as attachments to witness statements, that the respondent had an understanding of the proposed development and made reference to the relevant planning instruments. The Tribunal has not found any basis for concluding that the respondent did not attempt to make a decision on the merits of the matter or acted unreasonably. 109 The Tribunal would also make the comment that at the hearing, all the expert witnesses emphasised particular aspects of the development, but each equally took seriously their obligations before the Tribunal as expert witnesses. 110 The Tribunal has dismissed the application for costs.
Orders The Tribunal makes the following orders: 1. The application for review is dismissed. 2. The decision of the respondent made on 17 June 2009 to refuse development approval for the development 'retail store fitout' for the purposes of a showroom and ancillary office at No 6 (Lot 215) Sunray Drive, Stirling is affirmed. 3. Each party shall bear their own costs in the proceeding. (Page 28)
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