MOREA ARCHITECTS and TOWN OF VINCENT
[2006] WASAT 263
•1 SEPTEMBER 2006
MOREA ARCHITECTS and TOWN OF VINCENT [2006] WASAT 263
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 263 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:123/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 1/09/06 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | DR 123 of 2006 - Application for review allowed in part Development approval granted for alterations to shopfront and rear loading bay Development approval refused for external signage DR 124 of 2006 - Application for review allowed in part Direction set aside in relation to use Direction affirmed in relation to external signage | ||
| B | |||
| PDF Version |
| Parties: | MOREA ARCHITECTS TOWN OF VINCENT SHIOK MOON LAW |
Catchwords: | Town planning – Development application – External signage and alterations to shopfront and rear loading bay of retail building – Signage significantly exceeds total signage area standard under planning policy – Adverse impact on existing and likely future amenity – Whether application of standard is unreasonable or undesirable in the circumstances – Whether signage merely rebadging of former retail signage – Local government direction – Direction requires immediate cessation of use of most of building as a shop and storage and removal of signage – Direction addressed to business name, not applicant personally – Argument of validity – Argument not apposite in administrative review – Distinction between administrative and judicial review – Discretion to give direction – Factors which guide exercise of discretion – Interior building alterations and use of land as shop exempt from requirement for development approval under local planning scheme – Building licence plans approved in 1965 show whole of building as shop and (ancillary) storage – Inference that development approval not required when building erected or was obtained – Whether use of area identified as (ancillary) storage on building licence plans has changed to shop – Direction set aside in relation to use – Direction affirmed in relation to signage – Costs – Exercise of discretion in relation to review proceedings concerning local government direction – Usually each party should pay its own costs – Unreasonable conduct by council in issuing notice which precipitated proceedings and in proceedings – No reasonable basis for issue of notice in relation to use – Unreasonable failure by council to undertake search of approvals in relation to site – Council ordered to pay professional costs and disbursements of application for review in relation to use |
Legislation: | Local Government Act 1995 (WA), s 9.7 Planning and Development Act 2005 (WA), s 214, s 214(1), s 214(2), s 214(3), s 238(3)(a)(i), s 238(4), s 255(1) State Administrative Tribunal Act 2004 (WA), s 19(3)(b), s 21, s 27(2), s 60(2), s 87, s 87(2), s 87(3), s 87(4)(b), s 88 State Administrative Tribunal Rules 2004 (WA), r 43 Town of Vincent Town Planning Scheme No 1, cl 10, cl 13, cl 29, cl 32(1), cl 32(2), cl 33, cl 33(a), cl 33(d), cl 33(f), cl 38(5), cl 38(5)(g), cl 38(5)(h) Town Planning and Development Act 1928 (WA), s 10, s 10(1), s 10(2), s 10(3), s 10AA |
Case References: | Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53 Drake and City of South Perth & Anor [2005] WASAT 271 Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206 Uniting Church Homes (Inc) and City of Stirling; Churches of Christ Homes and Community Services (Inc) and City of Stirling [2005] WAS AT 341 Nil |
Orders | In proceedings DR 123 of 2006 – ,1. The application for review is allowed in part.,2. Development approval is granted for alterations to shopfront and rear loading bay at Lot 2 (Nos 412 – 414) Fitzgerald Street, North Perth in accordance with three sheets of plans drawn by Morea Architects Project Chemist Warehouse Drawing MAO550TP1A (existing conditions ground floor plan), MAO550TP2A (proposed ground floor plan) and MAO550TP3A (existing conditions rear elevation and proposed rear elevation) each dated 13 December 2005.,3. Development approval is refused for external signage at Lot 2 (Nos 412 – 414) Fitzgerald Street, North Perth.,In proceedings DR 124 of 2006 –,1. The application for review is allowed in part.,2. The decision of the Town of Vincent to give a direction to Chemist Warehouse dated 24 March 2006 under s 10(2) of the Town Planning and Development Act 1928 (WA) requiring Chemist Warehouse to immediately stop and not recommence the use of the property located at Lot 2 (Nos 412 – 414) Fitzgerald Street, North Perth, Western Australia, being the whole of the land described in Certificate of Title Volume 1511 Folio 11 (property), as a shop and storage for the purposes of a pharmacy business is set aside and a decision is substituted in its place that no direction be given.,3. The decision of the Town of Vincent to give a direction to Chemist Warehouse dated 24 March 2006 under s 10(3) of the Town Planning and Development Act 1928 (WA) requiring Chemist Warehouse, within 60 days of the service of the direction:,(a) to remove signage that has been erected on the property; and,(b) to restore the property as nearly as practicable to its condition immediately before the commencement of the erection of the signage, to the satisfaction of the Town, ,is affirmed, but the date by which the direction must be complied with is varied to 60 days from 1 September 2006.,4. The stay of the direction referred to in order 3 made on 16 May 2006 is lifted.,5. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Town of Vincent must pay Shiok Moon Law's reasonable professional costs and disbursements of the application for review of the direction under s 10(2) of the Town Planning and Development Act 1928 (WA), including her reasonable professional costs and disbursements of undertaking a search of the archives of the City of Perth in relation to approvals granted in respect of the property, as agreed or, failing agreement, as assessed by a member of the Tribunal nominated by the President on application by either party in accordance with r 43 of the State Administrative Tribunal Rules 2004 (WA).,6. Each party is to pay its own costs of the application for review of the decision to give the direction under s 10(3) of the Town Planning and Development Act 1928 (WA). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : MOREA ARCHITECTS and TOWN OF VINCENT [2006] WASAT 263 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 1 SEPTEMBER 2006 FILE NO/S : DR 123 of 2006 BETWEEN : MOREA ARCHITECTS
- Applicant
AND
TOWN OF VINCENT
Respondent
- Applicant
AND
TOWN OF VINCENT
Respondent
(Page 2)
Catchwords:
Town planning – Development application – External signage and alterations to shopfront and rear loading bay of retail building – Signage significantly exceeds total signage area standard under planning policy – Adverse impact on existing and likely future amenity – Whether application of standard is unreasonable or undesirable in the circumstances – Whether signage merely rebadging of former retail signage – Local government direction – Direction requires immediate cessation of use of most of building as a shop and storage and removal of signage – Direction addressed to business name, not applicant personally – Argument of validity – Argument not apposite in administrative review – Distinction between administrative and judicial review – Discretion to give direction – Factors which guide exercise of discretion – Interior building alterations and use of land as shop exempt from requirement for development approval under local planning scheme – Building licence plans approved in 1965 show whole of building as shop and (ancillary) storage – Inference that development approval not required when building erected or was obtained – Whether use of area identified as (ancillary) storage on building licence plans has changed to shop – Direction set aside in relation to use – Direction affirmed in relation to signage – Costs – Exercise of discretion in relation to review proceedings concerning local government direction – Usually each party should pay its own costs – Unreasonable conduct by council in issuing notice which precipitated proceedings and in proceedings – No reasonable basis for issue of notice in relation to use – Unreasonable failure by council to undertake search of approvals in relation to site – Council ordered to pay professional costs and disbursements of application for review in relation to use
Legislation:
Local Government Act 1995 (WA), s 9.7
Planning and Development Act 2005 (WA), s 214, s 214(1), s 214(2), s 214(3), s 238(3)(a)(i), s 238(4), s 255(1)
State Administrative Tribunal Act 2004 (WA), s 19(3)(b), s 21, s 27(2), s 60(2), s 87, s 87(2), s 87(3), s 87(4)(b), s 88
State Administrative Tribunal Rules 2004 (WA), r 43
Town of Vincent Town Planning Scheme No 1, cl 10, cl 13, cl 29, cl 32(1), cl 32(2), cl 33, cl 33(a), cl 33(d), cl 33(f), cl 38(5), cl 38(5)(g), cl 38(5)(h)
Town Planning and Development Act 1928 (WA), s 10, s 10(1), s 10(2), s 10(3), s 10AA
(Page 3)
Result:
DR 123 of 2006 -
Application for review allowed in part
Development approval granted for alterations to shopfront and rear loading bay
Development approval refused for external signage
DR 124 of 2006 -
Application for review allowed in part
Direction set aside in relation to use
Direction affirmed in relation to external signage
Category: B
Representation:
DR 123 of 2006
Counsel:
Applicant : Ms LE Rowley with Mr BR McMurdo
Respondent : Mr SJ Bain (Acting as Agent)
Solicitors:
Applicant : Deacons
Respondent : SJB Planning and Urban Design
DR 124 of 2006
Counsel:
Applicant : Ms LE Rowley with Mr BR McMurdo
Respondent : Mr SJ Bain (Acting as Agent)
Solicitors:
Applicant : Deacons
Respondent : SJB Planning and Urban Design
(Page 4)
Case(s) referred to in decision(s):
Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53
Drake and City of South Perth & Anor [2005] WASAT 271
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206
Uniting Church Homes (Inc) and City of Stirling; Churches of Christ Homes and Community Services (Inc) and City of Stirling [2005] WAS AT 341
(Page 5)
Summary of Tribunal's decision
1 These proceedings involved applications for review of:
(i) the deemed refusal of a development application for signage and building works at an existing retail building; and
(ii) directions which required the cessation of shop and storage use of the building and the removal of signage which was displayed on the building.
2 The Tribunal determined to grant development approval for the building works and to refuse development approval for the signage. Approval for the signage was refused, because it was significantly greater in size than that prescribed in a planning policy and would have an adverse impact on the amenity of the surrounding area.
3 The Tribunal determined to set aside the direction in relation to use, because use of the site as a shop and ancillary storage did not require development approval under the local planning scheme. The direction in relation to signage was affirmed, because the local planning scheme required development approval for the signage, which had not been obtained, and, in the circumstances, it was appropriate to exercise discretion to require the removal of the signage and the restoration of the building façades.
4 The Tribunal made an order that the Town of Vincent pay the applicant's professional costs and disbursements of the application for review of the use direction, including the costs and disbursements of undertaking a search of the archives of the City of Perth in relation to approvals granted in relation to the site. The Tribunal considered that although, in review proceedings concerning a local government direction, each party should usually pay its own costs, a costs order was warranted in the circumstances of this case, because there was no reasonable basis upon which the direction could have been given.
5 Development approval was plainly not required under the scheme for shop and ancillary storage use of the site, as the Town had itself correctly advised the applicant when she was contemplating leasing the site as a pharmacy. The Town's conduct in giving the direction was, therefore, unreasonable. Moreover, having formed the view that development
(Page 6)
- approval was required, the Town's conduct was unreasonable in having failed to review available records in relation to whether any approval had been granted, and in failing to withdraw the direction when the applicant obtained relevant approved plans by a search of the City of Perth's records.
Introduction
6 Two proceedings have been listed for determination together entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The proceedings involve:
(1) an application for review of the deemed refusal by the Town of Vincent (Town) of a development application made by Morea Architects, as agent for Ms Shiok Moon Law, for external signage and alterations to the shopfront and rear loading bay of an existing retail building at Lot 2 (Nos 412 - 414) Fitzgerald Street, North Perth (site), which was delivered to the Town on 20 December 2005 and accepted by the Town on 24 January 2006 (DA) (proceedings DR 123 of 2006); and
(2) an application for review of the decision of the Town to give directions to Chemist Warehouse on 24 March 2006 to:
(a) immediately stop and not recommence use of 486 square metres of floor space on the site (being the whole of the building other than 69 square metres immediately adjacent to Fitzgerald Street) for a shop and storage pursuant to s 10(2) of the Town Planning and Development Act 1928 (WA) (TPD Act) (see now Planning and Development Act 2005 (WA) (PD Act) s 214(2)) (use direction); and
(b) within 60 days, remove signage which has been erected on the site and restore the site as nearly as practicable to its condition immediately before the commencement of the erection of the signage to the satisfaction of the Town pursuant to s 10(3) of the TPD Act (see now PD Act s 214(3)) (signage direction) (proceedings DR 124 of 2006).
(Page 7)
7 The directions are contained in a single document. The document states that, whereas approval has been granted for the use of 69 square metres of floor space within the westernmost portion of the building for a shop and storage, no approval has been granted for the use of 486 square metres of floor space within the remaining portion of the building for a shop and storage and, therefore, the use of the 486 square metres for a shop and storage is being undertaken in contravention of the Town of Vincent Town Planning Scheme No 1 (LPS 1 or Scheme). The document also states that the erection of signage is development under LPS 1 and that, as no approval has been granted by the Town for the signage, the signage has been undertaken in contravention of the Scheme.
8 In late 2005, Ms Law leased the site for use as a retail pharmacy and dispensary and then commenced use of the site for that purpose. Signage which appears to have been fastened to the front parapet of the building identifies the pharmacy business as "Chemist Warehouse". The DA plans also refer to the business as "Chemist Warehouse".
9 On 16 December 2005, when Ms Law was contemplating taking a lease of the site to conduct the pharmacy business, Morea Architects emailed Ms Rosalind Beatty, a planning officer of the Town, referring to a telephone discussion, and asking Ms Beatty to "confirm that we do not need planning permits for change of use from Video Ezy to Pharmacy, at 412 Fitzgerald Road [sic], North Perth WA". Morea Architects identified the subject of the email as "Chemist Warehouse North Perth".
10 Ms Beatty replied to Morea Architects' email on the same day. Ms Beatty's email includes the following:
"A 'pharmacy' is classified as a 'shop' which is a permitted ('P') use in the District Centre Zone, and is therefore permitted on the subject property. Planning Approval is not required for the proposed 'pharmacy' unless it involves the carrying out of any building, external signage or other works. A Building Licence will also be required for any building, external signage or other works. "
11 As the DA proposes development of a value of less than $250 000, s 238(3)(a)(i) of the PD Act provides that the application is to be determined by the State Administrative Tribunal (Tribunal) constituted by an ordinary member sitting alone unless that provision does not apply because of s 238(4). In this case, Acting President Chaney has formed the
(Page 8)
- opinion, under s 238(4) of the PD Act, that the application is likely to raise complex or significant planning issues. Consequently, both proceedings were listed for determination by me.
Application for review of deemed refusal of DA
Statutory planning context
12 The site is zoned "District Centre" under LPS 1. As Ms Beatty, the Town's planning officer, correctly advised Morea Architects on 16 December 2005, a pharmacy is a "shop" as defined in LPS 1, namely a building wherein goods are exposed or offered for sale by retail, and is, therefore, a use that is permitted on the site under cl 13 of the Scheme.
13 Clause 32(1) of LPS 1 provides that a person shall not begin or continue development of any land or building in the Scheme area unless it is a development exempted by cl 33, without first having applied for and obtained planning approval. Clause 32(2) provides, for the avoidance of doubt, that development for which planning approval is required includes both use and physical development. Clause 33 provides that approval is not required for development including the following:
"(a) building or other work for the maintenance, improvement or other alteration of any building or structure where those works affect only its interior or do not materially affect its external appearance ...
(d) development of a minor nature listed in a planning policy as exempt from the requirement to obtain planning approval; [and]
...
(f) the use of land which is a permitted ('P') use in the zone in which that land is situated provided:
(i) it does not involve the carrying out of any building or other works; and
(ii) it is in compliance with all the requirements prescribed by the Scheme, planning policies and the Residential Planning Codes; ..."
(Page 9)
14 Clause 29 of LPS 1 provides as follows:
"A person shall not begin or continue advertisement, other than an existing advertisement, without having first applied obtained planning approval under Part 4."
15 It follows from these provisions that, subject to an argument put forward on behalf of Ms Law that the development proposed in the DA is exempt from the requirement to obtain planning approval (LPS 1 cl 33(d)), which is addressed below, development approval is required for the proposed external signage and alterations to shop front and rear loading bay. Development approval for the signage is expressly required by cl 29. Development approval for the alterations to the shopfront and rear loading bay is required by cl 32(1) and is not exempted by cl 33(a) or cl 33(f), because the proposal involves building works which do not only affect the interior of the building.
16 Clause 38(5) of LPS 1 requires the Town (and the Tribunal on review) to have regard to considerations including the following in the determination of a development application:
"(b) any relevant planning policy;
...
(g) the orderly and proper planning of the locality; [and]
(h) the conservation of the amenities of the locality; ... "
17 The site is located within the North Perth precinct for the purposes of cl 10 of LPS 1. Policy No: 3.1.9 North Perth Planning Policy (North Perth Policy) states that the precinct is to continue to provide for the retail, general commercial and community needs of the surrounding district and that retail activities are to be reinforced in the traditional shopping strip which extends along the larger portion of Fitzgerald Street generally north of Raglan Road, which includes the site. The North Perth Policy states, in relation to signage in the "District Centre" zone, "[c]ompliance with the Policy relating to Signs and Advertising".
18 Policy No: 3.5.2 Signs and Advertising (Signs and Advertising Policy) has the following objective:
(Page 10)
- "To ensure that the display of advertisements on properties does not adversely impact upon the amenity of the surrounding areas while providing appropriate exposure of activities or services."
19 Clause 2(i)(e) of the Signs and Advertising Policy prescribes the following standard in relation to all advertisement signs:
"The total signage area is not to exceed 10% of the total area of the building wall in which that signage is located. No signage is permitted on fences, walls or the like structures which do not form an integral part of the building."
20 Clause 2(xvv) of the Signs and Advertising Policy states as follows:
"If it is established to the satisfaction of the Town of Vincent that a particular standard or provision of this Policy is unreasonable or undesirable in the particular circumstances of the case, the Town of Vincent may at its discretion vary the standard or provision subject to such conditions as it thinks fit. Applications for variations of standards are to include a sign strategy for the whole of the subject site."
External signage
21 Attachment A to these reasons contains elevations showing the proposed signage. Elevation A on Attachment A is the principal façade of the building facing Fitzgerald Street. Elevation B on Attachment A is the secondary frontage of the building facing Forrest Street.
22 Mr SJ Bain, a consultant town planner who both represents and gives evidence on behalf of the Town in these proceedings, considers that the proposed signage does not comply with the maximum total signage area standard in cl 2(i)(e) of the Signs and Advertising Policy. In particular, whereas the total signage area standard would permit a maximum 10.88 square metres of signage on the Fitzgerald Street façade, the proposed signage is almost four times that size, with a total area of 39.89 square metres. Furthermore, whereas, according to Mr Bain, the total signage area standard would permit a maximum of 4.752 square metres of signage on the Forrest Street façade, the proposed signage on that elevation would have a total area of approximately three times the maximum, at 14.5 square metres. Mr Bain considers that the proposed signage would be detrimental to the amenity of the locality and the adjoining residential area.
(Page 11)
23 Mr Constantine Moschoyiannis, an architect and principal of Morea Architects, concedes that the total signage area of the Fitzgerald Street elevation exceeds the maximum 10% standard prescribed in cl 2(i)(e) of the Signs and Advertising Policy. Moreover, Mr Moschoyiannis does not contest Mr Bain's calculation as to the extent of exceedence.
24 However, Mr Moschoyiannis considers that the total signage area on the Forrest Street façade does not exceed 10% of the total area of the building wall, because the building wall on that façade includes not only the section of wall immediately adjacent to Fitzgerald Street, but also the remainder of the southern wall of the building. Mr Moschoyiannis is correct in this contention. The proposed development complies with the maximum total signage area standard in cl 2(i)(e) of the Signs and Advertising Policy in relation to the Forrest Street façade.
25 However, the section of the Forrest Street facade on which the signage is proposed is the most prominent part of the southern wall when viewed from Fitzgerald Street, and the remainder of the Forrest Street façade is considerably less prominent from Fitzgerald Street, as it is further away, has lower wall heights, steps down the slope and is, in part, obscured by a street tree. The part of the Forrest Street façade on which signage is proposed is of most significance in assessing whether the proposed display of advertisements adversely impacts upon the amenity of the surrounding areas (Signs and Advertising Policy objective) and the considerations of orderly and proper planning of the locality and the conservation of the amenities of the locality (LPS 1 cl 38(5)(g) and cl 38(5)(h)), as the proposed advertisements in this section continue and exacerbate the visual impact of the advertisements on the adjoining, principal façade of the building.
26 Mr Moschoyiannis considers that a variation to the maximum 10% total signage area standard on Fitzgerald Street should be granted under c1 2(xvv) of the Signs and Advertising Policy, as the proposed signage is "broadly based on a rebadging approach with no significant change to the amenity of the area", and as it is reasonable, in the case of a corner shop, to have regard to the combined areas of front and side walls. Attachment B to these reasons contains two photographs provided on behalf of Ms Law which show the former Video Ezy signage facing Fitzgerald Street and Forrest Street. Mr Moschoyiannis proposes a sign strategy that the wall sign on Forrest Street, which is well below 10% of that total wall, be combined with the proposed Fitzgerald Street wall sign to provide a total aggregate of no more than 10% of both walls combined.
(Page 12)
- She considers that this strategy can be supported as appropriate for a corner shop.
27 It is also argued on behalf of Ms Law that other commercial retail premises in the area, including pharmacies, have comparable signage to the proposed development. Attachment C to these reasons contains two photographs which show the signage of a nearby pharmacy business which is also located on a corner site. Attachment D to these reasons contains two photographs which show the building on the site and the signage currently displayed on the building.
28 Finally, it is submitted on behalf of Ms Law that the scale of signage proposed is consistent with the "main street" amenity and streetscape of the area.
29 The Tribunal does not consider that the total signage standard of 10% of the area of the building wall facing Fitzgerald Street is unreasonable or undesirable in the particular circumstances of the case.
30 The "rebadging" argument does not warrant a variation for each of three reasons.
31 First, the former Video Ezy signage has been removed or painted over in yellow. It no longer forms part of the amenity of the locality.
32 Second, even if the former signage remained, the term "amenity" is defined in LPS 1 to mean "all those factors which combine to form the character of the area to residents and passersby and shall include the present and likely future amenity" (emphasis added). Whatever signage may pre-exist the Signs and Advertising Policy, the likely future amenity is strongly influenced by its terms. The reasonable amenity expectations of residents and passersby include that signage should generally be limited to 10% of the total area of the building wall in which the signage is located, unless application of that standard is unreasonable or undesirable in the particular circumstances of a case.
33 Third, a comparison between the elevations in Attachment A and the photographs in Attachment B shows that, although the Video Ezy signage was large and prominent, there are important differences between the proposed signage and the former signage. In particular, whereas the Video Ezy signage on the Fitzgerald Street façade comprised a single, centrally located, Video Ezy logo on the parapet and two smaller Video Ezy logos to the left and right hand side of the awning, the proposal involves two different signs, one with a blue background and one with a
(Page 13)
- red background, stretching across almost the whole of the width of the parapet, and extending in part above the top of the parapet, and three signs of two different types, one with blue background and two with red background, stretching across the whole of the width of the awning and projecting, to some extent, above the awning. Furthermore, although the former signage was located in a similar position to the proposed signage on the Forrest Street façade, the former signage consisted of a single logo painted onto the parapet, whereas the proposed signage consists of two signs, one with a red background and one with a blue background, painted not only onto the wall but projecting, to some extent, above the parapet.
34 The proposed signage is not simply a "rebadging". It would give rise to a significant change in the amenity of the area when compared with the former signage.
35 It is not appropriate, in the particular circumstances of this case, to have regard to the combined areas of the front wall and the whole of the southern side wall in determining whether it is unreasonable or undesirable to apply the total signage area standard on Fitzgerald Street. As noted earlier, and as is apparent from the photographs in Attachment D, the part of the Forrest Street elevation on which signage is proposed is the most prominent part of that façade when the site is viewed from Fitzgerald Street, whereas the rest of the Forrest Street façade is considerably less prominent from Fitzgerald Street. The fact that similar signage to that which is proposed on Fitzgerald Street is also proposed on the most prominent part of the Forrest Street elevation when viewed from Fitzgerald Street strongly militates against a variation being granted under cl 2(xvv) of the Signs and Advertising Policy.
36 The fact that other commercial retail premises in the area, including pharmacies, have comparable signs to the proposal also does not warrant a variation being granted in this case. The Tribunal is not aware of when, if at all, the other signage was approved by the Town. The signage shown on Attachment C could certainly not have been approved consistently with the current Signs and Advertising Policy. That signage plainly has a significant adverse impact on the visual amenity of the surrounding area.
37 Finally, the scale of signage proposed for the site is not consistent with the "main street" amenity and streetscape of the area. The extent of visual clutter proposed in the DA is considerably greater than that which is necessary for appropriate exposure of the activities and services provided on the site. The appropriate main street amenity and streetscape of the area is strongly influenced by the provisions of the Signs and
(Page 14)
- Advertising Policy. Although the other commercial retail premises identified on behalf of Ms Law are relevant in assessing whether the proposal is consistent with the amenity of the area, the examples are to be given little weight in light of the Signs and Advertising Policy.
38 Mr Moschoyiannis also considers that the proposed development meets the objective of the Signs and Advertising Policy, to ensure that the display of advertisements on properties does not adversely impact upon the amenity of the surrounding areas, because it is based on the preexisting signage. As discussed earlier, there are important differences between the proposed and former signage. Moreover, as also discussed earlier, amenity includes present and likely future amenity. The proposed signage would adversely impact upon the existing and likely future amenity of the surrounding areas.
39 It is not entirely clear from the submissions filed on behalf of Ms Law whether she contests that development approval is required under LPS 1 for the proposed signage. An argument is advanced in relation to signage direction review that the signage which currently exists on the site does not require development approval. The submissions in relation to the signage proposed in the DA appear, by implication, to refer to this submission.
40 Insofar as it is contested, the Tribunal finds that development approval is required under LPS 1 for the proposed signage. As noted earlier, cl 29 of the Scheme expressly requires development approval for the display of an advertisement. The term "advertisement" is defined in LPS 1 to mean "any word, letter, model, sign, placard, board, notice, device or representation, whether illuminated or not, in the nature of and employed wholly or partly for the purpose of an advertisement, announcement or direction and includes any hoarding or similar structure used or adapted for use, for the display of advertisements". Although cl 33(d) exempts development of a minor nature listed in a planning policy from the requirement to obtain development approval, Policy No: 3.5.1 Minor Nature Development (Minor Development Policy) does not list signage of the nature proposed as exempt from the requirement to obtain development approval. In this regard, the Tribunal finds that the proposed signage is not:
(i) small in scale and composition (Minor Development Policy cl 1(i));
(Page 15)
- (ii) of a temporary nature (Minor Development Policy cl 1(ii));
(iii) a use of a limited nature considered to support or be ancillary to the overall operations of the primary approved use (Minor Development Policy cl 1(iii)); or
(iv) a use which will not adversely affect the amenity or streetscape of the locality or any other use which constitutes a minor use (Minor Development Policy cl 1(iv)).
41 The proposed signage is not temporary and is large in scale relative to the size of the Fitzgerald Street façade and the section of the Forrest Street façade which is most apparent from Fitzgerald Street. If the signage is a use, for these reasons it is not of a limited nature and, for reasons already discussed, it will adversely affect the amenity and streetscape of the locality.
42 Moreover, although cl 2 of the Minor Development Policy does not exhaustively list all minor development, it is to be noted that it lists signs and advertising that fully complies with the Signs and Advertising Policy (cl 2(xi)). By implication, advertising that does not fully comply with the Signs and Advertising Policy is unlikely to be minor development.
43 It follows that the development application for the external signage should be refused, as it is contrary to the Signs and Advertising Policy, orderly and proper planning of the locality and the conservation of the amenities of the locality.
Alterations to shopfront and rear loading bay
44 The proposed alterations comprise a new sliding door to Fitzgerald Street, a reduction in the size of the rear loading bay and the removal of some internal walls at the rear of the premises. It is arguable that these works are development of a minor nature within the contemplation of the Minor Development Policy. However, as the Town, presumably consistently with its general application of the Policy, does not consider that the development is of a minor nature, and as the Tribunal considers that this aspect of the DA warrants approval, it is assumed that the building works are not exempt from the requirement to obtain development approval.
(Page 16)
45 Mr Bain considers that the DA involves a conversion of approximately 114 square metres of floor space from storeroom to shop and that this amount of additional floor space would require eight additional car parking bays in accordance with the Town's Policy No: 3.7.1 Parking and Access Policy.
46 However, the DA does not propose a change of use from storeroom to shop. Building licence plans approved in 1965 designate most of the floor space of the building now erected on the site as "shop" and an area adjacent to the rear loading dock, shown as separated from the shop by a timber framed wall, as "store". It appears that the timber framed wall has been removed. However, the evidence shows that substantially the same area as was designated "store" on the building licence plans is used as the dispensary which performs a similar ancillary function to the store. Moreover, even if the dispensary area were proposed to be used as a shop, cl 33(f) of LPS 1 provides that development approval is not required for that use.
47 Only approximately 10 square metres of floor space would be incorporated into the principal part of the premises by the proposed works. In any case, this area would be incorporated into the dispensary part of the premises. The physical changes proposed in the DA would not, therefore, necessitate any additional car parking provision.
48 It follows that the DA for alterations to shopfront and rear loading bay should be approved. By an order made on 7 June 2006, the Town was required to file and provide to Morea Architects, without prejudice to its final position in the proceedings, a set of all of the conditions which it contends should be imposed if the Tribunal considers that approval of the application subject to conditions is appropriate. The Town did not provide any draft conditions in response to the order. The only condition which should, therefore, be imposed is a condition requiring compliance with the plans prepared by Morea Architects.
Application for review of directions
Argument of invalidity
49 It is submitted on behalf of Ms Law that the directions should be held by the Tribunal to be invalid for several reasons and, accordingly, set aside. This submission misunderstands the difference between administrative and judicial review.
(Page 17)
50 Section 27(2) of the SAT Act provides that the purpose of a review by the Tribunal is to produce the correct and preferable decision at the time of the decision upon the review. It is not to judicially review an administrator's actions in order to determine their validity. Indeed, s 19(3)(b) of the SAT Act provides that if a Tribunal proceeding for the review of a reviewable decision has commenced, judicial review proceedings cannot subsequently be commenced in relation to the decision.
51 However, one of the bases upon which it is submitted on behalf of Ms Law that the direction is invalid requires further discussion. It is submitted that the direction "is not addressed to any identified person and the 'Chemist Warehouse' is not the name of the occupier of the property".
52 Section 10(2) of the TPD Act provided (see now PD Act s 214(2)) that if a development, or any part of a development, is undertaken in contravention of a town planning scheme, the responsible authority may give a written direction to the owner or any other person undertaking that development to stop, and not recommence, the development or that part. Section 10(3) of the TPD Act provided (see now PD Act s 214(3)) that if a development has been undertaken in contravention of a town planning scheme, the responsible authority may give a written direction to the owner or any other person who undertook the development to remove, pull down, take up, or alter the development or to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority. Section 10(1) of the TPD Act provided (see now PD Act s 214(1)) that, for the purposes of subsections (2) and (3), a development is undertaken in contravention of a town planning scheme if the development is required to comply with a town planning scheme and is commenced, continued or carried out otherwise than in accordance with the scheme or any condition imposed with respect to the development by the responsible authority under the scheme.
53 The Town gave the directions to Chemist Warehouse on the basis that it is a person undertaking use of the site as a shop and store and undertook the erection of the signage in contravention of LPS 1. Although it is submitted on behalf of Ms Law that Chemist Warehouse is not the name of the occupier of the property, it is clear from the signage displayed on the building (see [8]), the DA plans (see [8]) and the exchange of emails between Morea Architects and the Town on 16 December 2005 (see [9]) that Ms Law trades on the site as Chemist Warehouse.
(Page 18)
54 Moreover, s 10AA of the TPD Act provided at the date of the direction and s 255(1) of the PD Act provided at the date of the filing of the application for review that "a person to whom a direction is given under [TPD Act s 10/PD Act s 214] may apply to the State Administrative Tribunal for a review, in accordance with [Pt V/this part], of the decision to give the direction". Plainly, having commenced the application for review under s 255(1) of the PD Act, Ms Law considers that she is "a person to whom [the] direction[s] [were] given".
1965 building licence
55 Following the giving of the direction, Ms Law's solicitors wrote to the Town requesting the following:
(i) copies of all approvals in respect of the site;
(ii) a statement of reasons for the decision under s 21 of the SAT Act; and
(iii) an indication of what the authorised use of the remainder of the shop is in the opinion of the Town.
56 The only response from the Town was to the effect that as Ms Law was not the owner of the property no documents could be provided.
57 Ms Law then arranged for a search to be made of any approvals which had been granted in relation to the site by the City of Perth (City), which was the former local government authority for that area. The search uncovered three plans, dated September 1965, which were submitted to and approved by the City for the erection of the retail building which presently stands on the site. These are the plans referred to earlier in these reasons which designate most of the floor space of the building as "shop" and the rear portion adjacent to the loading dock as "store".
58 At the initial directions hearing, the Tribunal ordered Ms Law to file and provide to the Town copies of the 1965 plans and the Town to file and provide to Ms Law any comments in response to the plans.
59 The Town's comments in response to the plans include the following:
"Subsequent to reviewing the archive plans submitted by your office and a site inspection made on 29 May 2006, the Town wishes to advise that while the current use of the site has been approved for shop (retail), the additional shop (retail) floor
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- space (previously indicated as store room on the above plans submitted) and the signage on site do not appear to have planning approval. As such, the Town is of the view that the section 10 notice should stay and not be withdrawn unless these matters are resolved via a retrospective planning application."
60 It is to be noted that the 1965 plans appear to have been submitted to and approved by the City as building licence plans, not as development approval plans. It is apparent from the extract in the preceding paragraph that the Town now considers that the 1965 plans evidence approval for the use of the site as a shop. The Tribunal infers that development approval for the use of land as a shop was not required when the use commenced in the mid 1960s or that, if development approval was required, it was obtained. In the circumstances of this case, the presumption of regularity requires that this inference be drawn consistently with the joint position of the parties.
Factors which guide whether to give a direction
61 As the Tribunal determined in Drake and City of South Perth & Anor[2005] WASAT 271 at [90] - [91], s 10 of the TPD Act conferred a discretion on the responsible authority, if development was undertaken in contravention of a town planning scheme, as to whether to give a direction to the owners of land or any other person who undertook the development and, if it decided to give a direction, as to its terms. Section 214 of the PD Act also confers a discretion, if development is undertaken in contravention of a planning scheme, as to whether to give a direction to the owner or any other person who undertakes the development and, if it decides to give a direction, as to its terms. However, both sections are silent in relation to the factors which the responsibility should consider when exercising its discretion.
62 As the Tribunal observed in Drake and City of South Perth & Anorat [92], the factors which guide or inform the exercise of discretion under s 10 of the TPD Act (and s 214 of the PD Act) cannot be exhaustively stated. It would be impossible and inappropriate to attempt to do so.
63 However, at [93] - [97], the Tribunal identified five important matters for consideration in the exercise of the discretion. These considerations are as follows:
• it is in the public interest of orderly and proper development (including use) of land that planning laws should generally be complied with. It is expected that,
- normally, those who use or physically develop land should comply with the planning legislation and any applicable approval in relation to that activity;
- • the impact of the contravention of the scheme on the affected locality and environment;
• the factual circumstances in which the contravention of the scheme took place;
• the time which has elapsed since the development was undertaken in contravention of the scheme; and
• the expense and inconvenience which would be involved in remedying the contravention of the scheme.
Review of use direction
64 The Tribunal considers that the application for review of the direction in relation to use of the site should be allowed and the direction requiring the cessation of shop and storage use of the site should be set aside for each of two reasons.
65 First, as noted earlier, development approval is not required under LPS 1 for the use of the site as a shop with ancillary storage.
66 Second, as also noted earlier, use of the site as a shop with ancillary storage has been approved. The area of the building identified as "store" in the 1965 plans was plainly ancillary storage to the shop. Similarly, the dispensary which is located in substantially the same area as the store shown on the 1965 plans is ancillary to the use of the site as a pharmacy shop. The Tribunal finds that the use of the site, as at the date of the direction and these reasons, is consistent with the approval.
67 It follows that the use of the site as a pharmacy shop and ancillary storage is not a contravention of the Scheme.
Review of signage direction
68 The Tribunal considers that the application for review of the direction in relation to signage should be dismissed and the direction requiring removal of the signage from the site should be confirmed. The signage in question is apparent on the photographs in Attachment D to these reasons.
(Page 21)
69 The display of the signage in question involved a contravention of the Scheme. Whereas the signage requires development approval under cl 29 of the Scheme, approval has not been obtained.
70 Contrary to the submission made on behalf of Ms Law, the signage constitutes an "advertisement" as defined in LPS 1 in that it comprises signs, placards, notices, devices or representations in the nature of and employed wholly or partly for the purpose of an advertisement, announcement or direction. This characterisation is not altered by the fact that the signage is related to the business which operates at the site or that it is held in position by cords.
71 Moreover, the existing signage is not development of a minor nature listed in a planning policy as exempt from the requirement to obtain development approval for the purposes of cl 33(d) of LPS 1. The Tribunal finds that the signage is not:
(i) small in scale and composition, given its size relative to the Fitzgerald Street façade and the section of the Forrest Street façade which is most apparent from Fitzgerald Street (Minor Development Policy cl 1(i));
(ii) of a temporary nature occurring on one-off occasions, given that, although it can be removed, it exists to advertise an ongoing use (Minor Development Policy cl 1(ii));
(iii) a use of a limited nature, given the findings at (i) and (ii), considered to support or be ancillary to the overall operations of the primary approved use (Minor Development Policy cl 1 (iii)); or
(iv) a use which will not adversely affect the amenity or streetscape of the locality, given that the size of the signage is considerably greater than that which is necessary for appropriate exposure of the activities and services provided on the site (Minor Development Policy c11(iv)).
72 Having determined that the display of the signage involved a contravention of the Scheme, the Tribunal must consider whether to exercise the discretion to give a direction in the circumstances of this case.
(Page 22)
73 In relation to the first consideration which guides the exercise of the discretion identified at [63], it is in the public interest of the orderly and proper development of the locality that an advertisement which requires development approval under cl 29 of the Scheme should not be displayed unless approval has been granted.
74 In relation to the second consideration, the impact of the contravention of the Scheme on the affected locality is significant. The signage is clearly apparent, as no doubt it is intended to be, from the public domain. The Tribunal agrees with Mr Bain that, because of its size and prominence, the signage is detrimental to the amenity of the locality.
75 In relation to the third consideration, it is submitted on behalf of Ms Law that the signage was displayed because of the Town's failure to determine her development application. While no doubt the Town's failure to determine the DA was frustrating for Ms Law, who wished to commence trading, that frustration does not justify the contravention of planning law. Her remedy lay in an application for review to this Tribunal, not in displaying advertisements contrary to the Scheme.
76 In relation to the fourth consideration, the Town acted promptly in seeking the removal of the signage.
77 In relation to the fifth consideration, there is no suggestion that remedying the contravention of the Scheme would involve any significant expense.
78 Taking these considerations into account, the Tribunal considers that the responsible authority's discretion should be exercised to confirm the signage direction given by the Town. However, for the avoidance of dispute as to the date by which the signage is required to be removed, the direction should be varied to require that the removal and restoration takes place within 60 days of the date of the Tribunal's decision.
Application for costs in relation to the review of directions
79 Ms Law makes an application for an order that the Town pay costs for her expenses, loss, inconvenience and embarrassment that has been occasioned by the issue of the directions. Although reference is made in Ms Law's submissions to s 88 of the SAT Act, that section is concerned with costs of a proceeding of the Tribunal, rather than costs of parties and others in a proceeding of the Tribunal. The present application for costs is, in substance, made under s 87 of the SAT Act.
(Page 23)
80 Section 87 of the SAT Act provides, in part, as follows:
"(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to -
(b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits ..."
81 In Citygate Properties Pty Ltd and City of Bunbury (2005)38 SR (WA) 246; [2005] WASAT 53, the Tribunal held, at [28], as follows:
"It is apparent from the terms of s 87(1) of the [SAT] Act that the starting proposition in this Tribunal is that parties bear their own costs in a proceeding. However, s 87(2) clearly confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party unless otherwise specified in an enabling Act." (See also Uniting Church Homes (Inc) and City of Stirling; Churches of Christ Homes and Community Services (Inc) and City of Stirling [2005] WAS AT 341 at [12]).
(Page 24)
82 In both Citygate Properties Pty Ltd and City of Bunburyand Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries[2005] WASAT 206 the Tribunal observed that normally, in administrative review proceedings, each party should bear its own costs of the proceedings. In Shark Bay Tuna Farms Pty Ltd and Department of Fisheries,the Tribunal stated, at [36], that:
" ... the State Administrative Tribunal has been established by the Parliament of the State with its review jurisdiction as part of the system of public administration of the State to ensure that citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests. The starting out position is that, absent other relevant factors, an applicant should be able to obtain review without being obliged to meet the decision-maker's costs if they do not succeed; and similarly, the decision-maker is not ordinarily entitled to recover costs from the applicant in the event the review application is unsuccessful."
83 Similarly, in Citygate Properties Pty Ltd and City of Bunbury, the Tribunal observed, at [31], that there are several sound policy reasons which support an approach to the exercise of discretion under s 87(2) of the SAT Act in relation to review proceedings under which usually each party should bear its own costs:
"First, it ensures that individuals who have had an application rejected or not considered by an original decision-maker or who have been given a direction or notice to do or cease doing something, have an opportunity for the decision to be reviewed without the fear of being ordered to pay costs if they do not succeed. Second, the review tribunal essentially 'sits in the shoes' of the original decision-maker before whom the applicant was only responsible for its own costs. Third, although the review tribunal will usually ultimately prefer one party's position over another's, reasonable minds might well differ about an appropriate result as to merit."
84 In Shark Bay Tuna Farms Pty Ltd and Department of Fisheries, the Tribunal decided that the respondent should not pay the applicant's costs in review proceedings having regard to all relevant factors including, in the circumstances of that case, the finding, at [46], that the decision-maker's view which led to the decision the subject of the review could not be said to have been "arbitrarily formed in the circumstances of the case"
(Page 25)
- and, at [52], that the decision had involved a "careful assessment" of the materials before the decision-maker.
85 Although Citygate Properties Pty Ltd and City of Bunburyconcerned an application for costs in relation to review proceedings purportedly commenced pursuant to s 9.7 of the Local Government Act 1995 (WA), the Tribunal's determination, that the discretion as to costs under s 87(2) of the SAT Act should normally be exercised such that each party bears its own costs in merit review proceedings, was expressed generally. Similarly, the reasoning in Shark Bay Tuna Farms Pty Ltd and Department of Fisheries was expressed generally. The policy reasons identified in Citygate Properties Pty Ltd and City of Bunbury,at [31], are equally apposite in the case of an application for review of a direction given under s 10 of the TPD Act or s 214 of the PD Act. Indeed, the first policy reason identified expressly referred to the giving of a direction or notice to do or cease doing something. The Tribunal's discretion in relation to costs in review proceedings concerning a direction under s 10 of the TPD Act or s 214 of the PD Act should, therefore, be exercised such that usually each party will pay its own costs of the proceedings.
86 However, the Tribunal considers that, in the particular circumstances of this case, it is appropriate that an order be made to compensate Ms Law for her reasonable professional costs and disbursements of having had to challenge the use direction. This is because, in the circumstances, there was no reasonable basis upon which the direction could have been given. The Tribunal, therefore, considers that the Town's conduct in giving the use direction, which directly precipitated the proceedings, was unreasonable. The Town's failure to undertake an archival search of approvals in relation to the site and to withdraw the use direction when presented with the 1965 plans was also unreasonable conduct.
87 As noted earlier, the Town itself advised Ms Law's architect, on 16 December 2005, that development approval was not required for the use of the site as a pharmacy. Furthermore, on 27 February 2006, Morea Architects wrote to the Town enclosing evidence of use of the site as a shop for at least 15 years and reiterating the Town's earlier stated position that development approval was not required for the use of the site as a pharmacy.
88 No evidence has been put forward by the Town as to how it subsequently came to form the view that approval had been granted for the use of 69 square metres of floor space within the westernmost portion
(Page 26)
- of the building for a shop and storage, whereas no approval had been granted for the use of 486 square metres of floor space within the remaining portion of the building for a shop and storage.
89 In any case, there was no reasonable basis upon which the Town could have formed the view that use of the building for a pharmacy and ancillary storage required development approval under LPS 1 and that, consequently, use of the site for that purpose involved a contravention of the Scheme.
90 Furthermore, having formed the view that development approval for shop use was required, the Town's conduct was unreasonable in failing to undertake an archival search of approvals granted in relation to the site. Mr Bain notes that the archives in question belong to the City, not to the Town, and contends that the Town "has the same rights of access" as the applicant to those records. It is curious that the records of approvals of the City pertaining to sites which are now within the Town's local government area were not transferred to the Town when the local government boundaries were adjusted. However, even if the Town does not physically possess the records, it is incumbent upon it, as the responsible authority under s 10 of the TPD Act and s 214 of the PD Act, to review its own records and those of its predecessor before giving a direction that a use must cease because requisite development approval has not been obtained.
91 Once the 1965 plans were provided to the Town, the Town recognised that approval had been granted for the use of the site as a shop, although it said that the "additional shop (retail) floor space (previously indicated as storeroom on the above plan submitted) ... [does] not appear to have planning approval" and, therefore, determined to maintain the direction in this respect. However, an inspection of the site would have revealed that the dispensary, which performs a similar ancillary function to the store shown on the 1965 building licence plans, is located in substantially the same area as the designated store. Moreover, for reasons discussed earlier, the Town had correctly indicated in December 2005 that development approval is not required for pharmacy use of the site.
92 The Town's conduct in the proceedings in failing to withdraw the direction in relation to use was, therefore, also unreasonable.
93 Section 87(4)(b) of the SAT Act requires that the Tribunal have regard to whether the Town genuinely attempted to make a decision on its merits. Given that the Town had earlier, correctly, advised Ms Law that
(Page 27)
- she did not require development approval to conduct a pharmacy at the site and that it was not reasonably open to give a direction to require cessation of the shop and ancillary storage use, the Tribunal finds that the Town did not genuinely attempt to make a decision on its merits in relation to use. However, as the Tribunal observed in Citygate Properties Pty Ltd and City of Bunbury,at [32], s 87(4) does not limit the range of relevant considerations as to costs. Even absent s 87(4), the Tribunal would have exercised the discretion under s 87(2) in favour of Ms Law in the circumstances of this case.
94 The Tribunal considers that the discretion as to costs under s 87(2) of the SAT Act should be exercised, in the circumstances of this case, such that Ms Law should be compensated for her reasonable professional costs and disbursements of having had to seek review of the direction given by the Town under s 10(2) that the use of the building for a shop and storage must cease. The costs should include the professional costs and disbursements of having had to search the City of Perth archives to obtain the 1965 plans. The Tribunal considers that the cost of this search is directly attributable to the Town having given a direction without reasonable basis and the need to review the direction.
95 As noted earlier, Ms Law also seeks compensation for loss, inconvenience and embarrassment that has been occasioned by the issue of the direction. However, the Tribunal does not consider that, in the circumstances of this case, an order beyond Ms Law's professional costs and disbursements should be made. While the Tribunal has found that there was no reasonable basis for giving a direction requiring the cessation of shop and ancillary storage use of the site, the use did not, in fact, cease and the Tribunal stayed the operation of the direction at the initial directions hearing.
96 It is appropriate that the Tribunal's discretion as to costs in relation to the application for review of the signage direction should be exercised such that each party should pay its own costs. There is no basis for departing from the usual practice in relation to costs in respect of that direction.
Conclusion
97 The Tribunal has determined that the correct and preferable decision in relation to the application for review of the Town's deemed refusal of the DA is for the application to be allowed in part and for development approval to be granted for alterations to shop front and rear loading bay, but not for the proposed external signage.
(Page 28)
98 The Tribunal has also determined that the correct and preferable decision in relation to the application for review of the Town's decision to give the directions is that the application should be allowed in relation to the direction under s 10(2) of the TPD Act, requiring cessation of shop and storage use of the site, and dismissed in relation to the direction under s 10(3), requiring removal of the signage displayed on the site.
99 The Tribunal determined that the Town should pay Ms Law's reasonable professional costs and disbursements of having had to challenge the use direction, including the costs and disbursements of undertaking a search of the records of the City of Perth. In the circumstances of this case, the Town's conduct in giving the direction, which precipitated the proceedings, was unreasonable. There was no reasonable basis upon which the direction could have been given and the Town failed to review available records in relation to approvals granted for the site.
Orders
100 The Tribunal makes the following orders:
In proceedings DR 123 of 2006 -
1. The application for review is allowed in part.
2. Development approval is granted for alterations to shop front and rear loading bay at Lot 2 (Nos 412 - 414) Fitzgerald Street, North Perth in accordance with three sheets of plans drawn by Morea Architects Project Chemist Warehouse Drawing MA0550TPIA (existing conditions ground floor plan), MA0550TP2A (proposed ground floor plan) and MA0550TP3A (existing conditions rear elevation and proposed rear elevation) each dated 13 December 2005.
3. Development approval is refused for external signage at Lot 2 (Nos 412 - 414) Fitzgerald Street, North Perth.
In proceedings DR 124 of 2006 -
1. The application for review is allowed in part.
2. The decision of the Town of Vincent to give a direction to Chemist Warehouse dated 24 March 2006 under s 10(2) of the Town Planning and Development Act 1928 (WA) requiring Chemist Warehouse to immediately stop
- and not recommence the use of the property located at Lot 2 (Nos 412 - 414) Fitzgerald Street, North Perth, Western Australia, being the whole of the land described in Certificate of Title Volume 1511 Folio 11 (property), as a shop and storage for the purposes of a pharmacy business is set aside and a decision is substituted in its place that no direction be given.
- 3. The decision of the Town of Vincent to give a direction to Chemist Warehouse dated 24 March 2006 under s 10(3) of the Town Planning and Development Act 1928 (WA) requiring Chemist Warehouse, within 60 days of the service of the direction:
(a) to remove signage that has been erected on the property; and
(b) to restore the property as nearly as practicable to its condition immediately before the commencement of the erection of the signage, to the satisfaction of the Town,
is affirmed, but the date by which the direction must be complied with is varied to 60 days from 1 September 2006.
4. The stay of the direction referred to in order 3 made on 16 May 2006 is lifted.
5. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Town of Vincent must pay Shiok Moon Law's reasonable professional costs and disbursements of the application for review of the direction under s 10(2) of the Town Planning and Development Act 1928 (WA), including her reasonable professional costs and disbursements of undertaking a search of the archives of the City of Perth in relation to approvals granted in respect of the property, as agreed or, failing agreement, as assessed by a member of the Tribunal nominated by the President on application by either party in accordance with r 43 of the State Administrative Tribunal Rules 2004 (WA).
(Page 30)
- 6. Each party is to pay its own costs of the application for review of the decision to give the direction under s 10(3) of the Town Planning and Development Act 1928 (WA).
(Page 31)
Attachment A
(Page 32)
Attachment B
(Page 33)
Attachment C
(Page 34)
Attachment D
(Page 35)
- I certify that this and the preceding [100] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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