MWEST PTY LTD and CITY OF BAYSWATER
[2019] WASAT 103
•31 OCTOBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MWEST PTY LTD and CITY OF BAYSWATER [2019] WASAT 103
MEMBER: MS M CONNOR, MEMBER
MS C BARTON, MEMBER
HEARD: 24 JUNE 2019, 25 AND 26 JULY 2019 AND 31 JULY 2019
DELIVERED : 31 OCTOBER 2019
FILE NO/S: DR 47 of 2019
BETWEEN: MWEST PTY LTD
Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Town planning - Development - Twosided LED sign - Whether proposed use is consistent with 'the objective and purpose' of planning framework and capable of approval - Visual amenity - Compatibility of the proposed development with its setting - Traffic safety - Whether cogent reason to depart from policy
Legislation:
City of Bayswater Local Planning Scheme No 24, cl 3.1, cl 3.6, cl 5.6, cl 5.6.3, cl 10.1.2, cl 10.1.4, cl 10.1.6, Appendix 1, Appendix 10 - SCA 10, Table 1 - Zoning Table
Metropolitan Region Scheme, cl 30(1), Pt III
Planning and Development (Local Panning Schemes) Regulations 2015 (WA), Sch 1, Sch 2, cl 1, cl 3, cl 60, cl 61, cl 67, cl 68
Planning and Development Act 2005 (WA), s 252(1), s 257B, s 257B(3)
Result:
Application dismissed
Decision of respondent affirmed
Summary of Tribunal's decision:
MWest Pty Ltd sought review by the Tribunal of the refusal of the City of Bayswater of a development application to erect a twosided LED sign displaying third party content and associated supporting structure on Lot 9000 (No 12) Wick Street, Bayswater.
The Tribunal found that the proposed use was not consistent with the objectives and purpose of Precinct B of Special Control Area 10 and therefore a use not permitted and, as such, was not capable of approval under the City of Bayswater Local Planning Scheme No 24. However, in the event that the Tribunal was incorrect in this finding and that discretion existed to approve the proposed development, the Tribunal also considered the substantial merits of the application and found that the proposed development was not consistent with the objectives and purpose of the planning framework as the proposed development would adversely impact on the visual amenity of the locality; was not compatible with its setting; and would reduce the level of traffic safety in a moderately complex road environment that requires a high level of driver attention; and, therefore, in the interest of orderly and proper planning declined to exercise discretion to approve the proposed development. Consequently, the application for review was dismissed and the decision of the respondent affirmed.
Category: B
Representation:
Counsel:
| Applicant | : | Mr B Foley |
| Respondent | : | Mr CA Slarke |
Solicitors:
| Applicant | : | Thomson Geer - Perth |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
APN Outdoor (Trading) Pty Ltd v Melbourne City Council [2012] VSC 8; (2012) 187 LGERA 231
Challenger Listed Investments Ltd and Metropolitan North-West Joint Development Assessment Panel [2013] WASAT 90
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96
Claude Neon Ltd v City of Perth (unreported, WA Sup Ct, Kennedy J, 31 July 1987)
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Evangel Christian Fellowship Inc and Shire of Serpentine-Jarrahdale [2017] WASAT 159
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Ooh! Media Pty Ltd and Department of Transport [2017] WASAT 68
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1
Ridgecity Holding Pty Ltd and City of Albany [2006] WASAT 187
Shri Shirdi Sainath Perth Inc v City of Gosnells [2017] WASAT 24
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Rowe Group on behalf of Bayswater Industrial Estate Pty Ltd applied on 27 September 2018 to the City of Bayswater (respondent, Council or City) for development approval under the Metropolitan Region Scheme (MRS) and the City of Bayswater Local Planning Scheme No 24 (LPS 24 or Scheme) to erect a two-sided LED sign displaying third party content and an associated supporting structure on Lot 9000 (No 12) Wick Street, Bayswater.
The Council, at its meeting of 26 February 2019, resolved to refuse to grant development approval for a two-sided hoarding (billboard) sign and associated supporting structure on the subject land for the following reasons:
1.The proposal does not comply with the sign specific provision of the City's Signage Policy, including significant variation to the size and setback requirement, its placement within the 0.3m of the Tonkin Highway road Reserve and the scale, height and bulk of the sign is considered to be injurious to the amenity of the area.
2.Main Road Western Australia (MRWA) does not support the proposed development given the location of the sign in a Device Restriction Area (DRA) and, given the sign is to be located on a road with major roadworks, MRWA will not consider application for a period of three years without any crash data.
3.The proposal is considered inconsistent with the objectives of Special Control Area No 10 of the City's Planning Scheme No 24 and an inappropriate use of land in this area.
MWest Pty Ltd (applicant), on 28 February 2019, applied under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. The applicant seeks an order that the decision of the respondent be set aside and the application for development approval be granted.
Subject site
The land is more particularly described as Lot 9000 on Deposited Plan 412675, being the whole of the land contained in Certificate of Title Volume 2914 Folio 721 and is 11.6 hectares in area. The land is located on the east side of Tonkin Highway, some 670 metres south of the Collier Road intersection and within the newly created Tonkin Highway industrial estate.
Lot 9000 is in the process of being subdivided to create a number of lots, one of which, referred to as proposed Lot 1 (subject site), will encompass the proposed development.
The subject site is an irregular shaped lot measuring approximately 4512m² in area, with an approximate frontage to Tonkin Highway of 103 metres and a 53 metre frontage to Radius Loop.
The proposed development
The development application proposes the erection of a double-sided large format LED sign with steel supporting post and frame, intended to display third party advertising (proposed development or sign).
The sign is comprised of two signage panels each measuring 4.55 metres high and 18.55 metres wide, representing a signage area of 84.40m² on each side (total signage area of 168m²). The total area of the support frame on which the signage panels are positioned is 102.7m² (18.85 metres x 5.45 metres). The plans before the Tribunal show the supporting pole is 13.05 metres to the underside of the supporting frame, so the total overall height of the structure is 18.5 metres. However, the applicant during the course of the final hearing agreed to reduce the total overall height of the structure to 16.5 metres.
The sign is proposed to be located in the northern corner of the subject site. The western side of the sign is setback 0.3 metres and the centre support post is setback 9.77 metres from the Tonkin Highway road reserve. While the sign is proposed to be located close to the Tonkin Highway road reserve, it will be some 40 metres from the nearest traffic lane. The 'proposed site plan' does not specify a setback to the north eastern side of the sign but it appears that the sign will have a small setback, possibly 1.0 metre, from the rear boundary of one of the lots to be created from the proposed subdivision (see Exhibit 2).
As the sign is double-sided, it will be visible from both directions on Tonkin Highway as one panel of the device will face southbound traffic, whilst the other will face northbound traffic.
Planning framework
Metropolitan Region Planning Scheme
The MRS provides that the approval of the 'responsible authority' under the MRS (that is, the Western Australian Planning Commission (Commission) or its delegate) is required for the development of land within areas zoned under Pt III of the MRS. The subject site is zoned 'Industrial' in the MRS and abuts a 'Primary Regional Road' (PRR), that being the Tonkin Highway reservation.
The City referred the application to Main Roads Western Australia (MRWA) for comment as the subject site adjoins a Category 3 PRR. MRWA provided the following comments to the respondent on 4 December 2018.
Main Roads does not support the proposed signage due to the following:
1.When assessed against Main Roads Policy Application Guidelines for Advertising Signs within and Beyond State Road Reserves, the current position of the device is located within the Device Restriction Area (DRA) and therefore fail (sic) to comply with Main Roads 'Location' criteria outlined in Section 3.1.1.
2.No crash rate calculations were provided for the proposed signage as a result of major roadworks during the five year date range of 2013-2017. The applicant must note that this information is required for Main Roads to undertake a full assessment of the advertising device as per Section 3.1.3 'Crash history' of Main Roads Policy and Application for Guidelines for Advertising Sings within and Beyond State Road Reserves. Main Road will not consider applications for Large Format Digital Signs (LFDS) at locations that have had major roadworks, or at greenfield sites, until a minimum period of 3 years has passed to enable the collection of meaningful crash data.
As the subject site abuts a PRR classified as a 'Category 3 Road' the development application is required, in accordance with the 'Instrument of Delegation - Del 2017/02' (as amended 18 December 2018) (Instrument of Delegation), to be referred to MRWA for transport planning related comments and recommendation before being determined by the local government, subject to the process explained in cl 4 of Section B - Conditions of the Instrument of Delegation.
With the Instrument of Delegation in mind and the possibility that the Tribunal could make a determination contrary to the recommendation of MRWA, the Tribunal, with the consent of the parties, drew this matter to the attention of the Commission in order to enable it to consider whether it wanted to seek leave to participate in the proceeding. The Commission informed the Tribunal that it would not be seeking leave to intervene or to make any submissions in this proceeding.
Clause 30(1) of the MRS requires the decision-maker, in determining an application to commence development, to have regard to the purpose for which the land is zoned or reserved under the MRS, the orderly and proper planning of the locality and the preservation of the amenities of the locality.
Local planning scheme and the deemed provisions
The subject site is zoned 'General Industry' and is also contained within 'Special Control Area 10' (SCA 10) in LPS 24.
Schedule 2 - Deemed Provisions for Local Planning Schemes of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) have effect as part of LPS 24 due to the operation of s 257B of the PD Act. Further, to the extent of any inconsistency between a deemed provision with another provision of LPS 24, the deemed provision prevails and the other provision is, to the extent of the inconsistency, of no effect (s 257B(3) of the PD Act).
In the circumstances of this case, cl 3.1 of LPS 24 and cl 60 of the deemed provisions work together and have the effect that a person must not commence or carry out any works on, or use, land in the Scheme area unless the person has obtained approval under the Scheme, or the development is exempt pursuant to cl 61 of the deemed provisions. 'Development' in this case is for both the physical works component associated with the sign and the use of the land for third party advertisement.
'Appendix 1 - Interpretations' found in LPS 24 (Appendix 1) contains a definition for both 'Advertisement' and 'Sign'. The wording of 'Advertisement' in Appendix 1 of LPS 24 is such that there is inconsistency with the term 'Advertisement' as defined in cl 1 of the deemed provisions, and as such, pursuant to s 257B(3) of the PD Act the term as defined in the deemed provisions prevails. 'Advertisement' as defined in cl 1 of the deemed provisions means:
… any word, letter, model, sign, placard, board, notice, device or representation, whether illuminated or not, that is used wholly or partly for the purposes of advertising, announcing or directing, and includes
(a)any hoarding or similar structure used, or adapted for use, for the display of advertisements; and
(b)any airborne device anchored to any land or building used for the display of advertising; and
(c)any vehicle or trailer or other similar object placed or located so as to serve the purpose of displaying advertising[.]
'Sign', which is a word used in the definition of 'Advertisement', is defined in Appendix 1 of LPS 24 as meaning 'a notice, message or display by means of a freestanding or fixed sign or hoarding'.
Consistent with 'Note: 1' under cl 60 of the deemed provisions, which states that '[d]evelopment includes the erection, placement and display of advertisements', cl 5.6 of LPS 24 seeks to control advertisements and confirms that development includes the erection, placement and display of advertisements.
The parties agreed, and the Tribunal concurs, that the proposed development falls within the defined term of 'Advertisement' and is not an exempted development pursuant to cl 61 of the deemed provisions and therefore approval is required.
As previously stated, the subject site is located within SCA 10, which is described as the land bounded by:
… Tonkin Highway to the west, Railway Parade to the south, Vincent Street and the rear boundaries of Lots 55, 59, 60, 61, 102, 103, 104, 301 and 302 Clune Street to the east.
Clause 10.1.2 of the Scheme provides that the provisions applying to Special Control Areas (SCAs) apply in addition to any underlying zone and any general provisions of the Scheme.
Clause 10.1.4 of the Scheme sets out the purpose of SCAs, which are to:
a)identify areas requiring comprehensive planning to allow redevelopment in an appropriate form; [and]
B)coordinate subdivision and development in areas requiring comprehensive planning.
Appendix 10 describes the SCAs and sets out the specific purposes and requirements that apply to each SCA. Clause 10.1.6 of the Scheme requires that development and subdivision of land within a SCA is to comply with the requirement of Appendix 10.
The purpose of SCA 10 is:
To facilitate the redevelopment of Lot 10 Railway Parade, Bayswater site into a quality industrial/commercial estate, guiding development form and land use in a manner which articulates a high level of amenity whilst achieving well designed, functional and efficient buildings.
SCA 10 is separated into three precincts and the subject site is located within Precinct B. The purpose of Precinct B is:
To comprise industrial land uses (except those which are considered undesirable for reasons of noise, odour or atmospheric admissions).
SCA 10 also contains tables setting out Permitted Uses, Discretionary Uses and Uses Not Permitted (Use Tables) in Precincts A, B and C. Notwithstanding the uses listed within Table 1 - Zoning Table (Zoning Table) of the Scheme, the Use Tables contained in SCA 10 prevail over the Zoning Table.
Neither of the defined terms 'Advertisement' or 'Sign' are listed as Uses in the Use Tables contained in SCA 10. As an aside, it is also noted that whilst cl 5.6 of the Scheme contemplates 'Advertisement' as a use, it is not contained as a Use Class in the Zoning Table for all other zones in the Scheme area.
There has been recognition in various Australian jurisdictions that the display of an advertising sign may constitute a use of land (see: APN Outdoor (Trading) Pty Ltd v Melbourne City Council [2012] VSC 8; (2012) 187 LGERA 231). In particularly, Kennedy J, in Claude Neon Ltd v City of Perth (unreported, WA Sup Ct, Kennedy J, 31 July 1987) at 16 held that:
… commercial advertising which advertises businesses other than such as are carried out on at the premises constituted an independent use of land and constituted 'use of land for a particular purpose' within the meaning of the relevant planning scheme.
SCA 10 provides that where the use of land for a particular purpose is not specifically mentioned in the Use Tables and cannot reasonably be determined as falling within the interpretation of one of the mentioned use classes, the Council may:
a)determine by Absolute Majority that the use is consistent with the objectives and purpose of the particular precinct and is therefore permitted; or
b)determine by Absolute Majority the proposed use may be consistent with the objectives and purpose of the precinct and thereafter follow procedures of clause 64 of the deemed provisions in considering an application for planning approval; or
c)determine that the use is not consistent with the objectives and purpose of the particular precinct and is therefore not permitted.
There is no dispute between the parties that the proposed development involves the use of the land for a purpose not specifically mentioned in the Use Tables in SCA 10 and as such, one of the issues for determination in this matter is whether the proposed use is consistent with the purpose of Precinct SCA 10 and capable of approval.
SCA 10 also prescribes Development Requirements for each of the Precinct areas.
Clause 3.6 of LPS 24 sets out matters to be considered in determining an application for development approval. However, the Tribunal, in Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1, found that by virtue of s 257B(3) of the PD Act, cl 67 of the deemed provisions has replaced all the equivalent provisions in local planning schemes in Western Australia based on cl 10.2 of the former Model Scheme Text. Clause 3.6 of LPS 24 is such a provision.
Clause 67 of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government (and the Tribunal on review), those matters are relevant to the development the subject of the application. The pertinent matters relating to this application are as follows:
•the aims and provisions of LPS 24 (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•any local planning policy for the Scheme area (subclause (g));
•the compatibility of the development with its setting including the relationship of the development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development; (subclause (m));
•the amenity of the locality including amongst other matters, the character of the locality (subclause (n));
•the suitability of the land for the development taking into account the possible risk to human health or safety (subclause (r));
•the comments or submissions received from any authority consulted under clause 66 (subclause za)); and
•any other planning consideration the local government considers appropriate (subclause (zb)).
In addition, cl 5.6.3 of LPS 24 provides that:
Without limiting the generality of the matters which may be taken into account when making a decision upon an application for planning approval to erect, place or display an advertisement, Council shall examine each such application in the light of the objectives of the Scheme and with particular reference to the character and amenity of the locality within which it is to be displayed, including its historic or landscape significance and traffic safety, and the amenity of adjacent areas which may be affected.
Clause 3 of the deemed provisions empowers the respondent to make planning policies in respect to any matters relating to planning and development of the Scheme Area. The respondent has adopted a 'Signage Policy' which deals with the control of advertisements in the Scheme Area. The original version of the Signage Policy was adopted in April 1996 but has since had three reviews, the last being in March 2016 and as such, the current version of Signage Policy is taken to be made under the deemed provisions.
Pursuant to cl 68 of the deemed provisions, the local government (and the Tribunal on review) may determine an application for development by:
(a)granting development approval without conditions; or
(b)granting development approval with conditions; or
(c)refusing to grant development approval.
Other relevant policy
MRWA has adopted the Policy and Application Guidelines for Advertising Signs within and Beyond State Road Reserves (MRWA Guidelines). The purpose of this policy is stated in cl 2.2 as:
…to provide guidance on the assessment and approval of applications to display road side advertising within State road reserves and beyond the boundaries of, but visible from, State road reserves[.]
Clause 3.1 of the MRWA Guidelines relevantly provides:
Roadside advertising devices are one of many stimuli confronting road users. The driver needs to assess the relevance of these stimuli to the driving task. Cognitive assessment of roadside objects or devices becomes more difficult as the level of driver attention, distraction and decision making is increased.
The general permission criteria for the display of advertising devices within the boundaries of, or visible from state-controlled roads are intended to ensure that:
•A high level of safety for road users is maintained
•Traffic efficiency is assured
An advertising device may be considered a traffic hazard if it interferes with road safety or traffic efficiency; or if it:
•Interferes with the effectiveness of traffic control devices (e.g. traffic signals, stop or give way signs), or
•Distracts a driver at a critical time (high demand, decision making areas), or
•Obscures a driver's view of a road hazard (e.g. curves, traffic Stopping Sight Distance), or
•Gives instructions to traffic to 'stop', 'halt' or other (give way, merge, turn), or
•Imitates a traffic control device, or
•Is a dangerous obstruction to road or other infrastructure, traffic, pedestrians, cyclists or other road users, or
•Is in an area where there are several devices and the cumulative effect of those devices may be potentially hazardous, distracting or demanding.
To maintain safety and efficiency for road users, the following three main areas should be controlled for proposed advertising devices:
1.Site Selection - which comprises
a.The lateral placement of the advertising device to ensure the device does not become a hazard for errant vehicles, and to ensure the effectiveness of official traffic signs.
b.The longitudinal placement of the advertising device to minimise the driver distraction, and control the demand placed on a driver.
2.Physical Characteristics of the Advertising Device - including shape, colour, illumination, font size and content (which can influence the extent of driver distraction or confusion).
3.Crash History - to ensure the device is not placed in a high crash rate area or at an intersection with high casualty crash densities.
Clause 3.1.1 of the MRWA Guidelines sets out site selection criteria and relevantly, at cl 3.1.1.2 provides for 'longitudinal' placement controls. This clause relevantly provides:
The application of longitudinal placement controls is intended to:
•minimise the level of driver distraction in areas where greater concentration is required
•preserve sight distances
•retain a high level of traffic efficiency
…
Longitudinal placement controls for Advertising Devices within and/or visible from state-controlled roads shall be in the form of:
•Device restriction distances to designated traffic situations and official traffic signs (see Appendix A).
Appendix A - Device Restriction Areas (Appendix A) of the MRWA Guidelines contains two figures. Relevantly, Figure 2 - Restriction areas for Billboard advertising devices visible from a Freeway or Freeway standard road (Figure 2) contains seven diagrams that illustrate restriction areas for Billboard advertising devices visible from a Freeway or Freeway standard road. The four diagrams relevant to this review are: '2. Freeway - Off Ramp with Added Lane; '3. Freeway - On Ramp'; '5. Freeway - Merge Point'; and '6. Freeway - Traffic Sign'.
Crash History is also identified as a site selection criterion. Relevantly, cl 3.1.3 states:
The crash history of the road will determine any further restriction on placement or whether a billboard is permitted at the nominated site.
Appendix C - Crash Rate Calculations provides guidance on the analysis of crash data to determine the critical crash rate.
Issues
The parties at the commencement of the final hearing agreed that the following issues arise for determination in relation to this matter:
1)Is the proposed use consistent with the purpose of SCA 10 of LPS 24 and capable of approval?
2)If the answer to 1) is yes, does the proposed development comply with the relevant development standards set out in LPS 24?
3)If the answer to 2) is no, are the modifications to the development standards acceptable by reference to cl 8.2 of LPS 24?
4)Would the proposed development have an acceptable impact on the amenity of the locality?
5)Is the proposed development compatible with its settings?
6)Would approval of the proposed development present an unacceptable road safety risk? and
7)Is there a cogent reason to depart from the City of Bayswater Signage Policy?
In relation issue 2) the respondent intended to argue that the proposed development is non-compliant with the building height standard as prescribed in SCA 10, that being the '[h]eight of a building shall not exceed three (3) storeys' or the equivalent 16.5 metres by reference to cl 8.3.1.2 of the Scheme, and therefore can only be approved in the exercise of discretion. As to issue 3) the respondent intended to argue that the general power provided for in cl 8.2.1 to approve a development which does not comply with scheme development standards, is to be read subject to the specific SCA provisions which are in addition to the general provisions of the Scheme, and therefore the power to modify development standards under cl 8.2.1 does not operate. On this interpretation, the proposed development would be incapable of approval.
However, during the course of the hearing the applicant agreed to the imposition of a condition on any approval reducing the height of the proposed development from 18.5 metres to 16.5 metres. The respondent consented to this concession, and accordingly no longer pressed the position that the proposed development would be noncompliant with the height standard for buildings in Precinct B of SCA 10. As a consequence, issues 2) and 3) became redundant.
The Tribunal will address each of the remaining issues, albeit reordered and will consider issues 3 and 4 as one issue.
Is the proposed use consistent with the purpose of SCA 10 of LPS 24 and capable of approval?
The parties agree, and the Tribunal concurs, that the correct use class classification for the proposed development is 'Advertisement'.
The respondent submits that the wording of the provision in SCA 10 relating to the permissibility of uses not specifically mentioned in the Use Tables requires a determination by reference to the purpose of Precinct B, which is '[t]o comprise industrial land uses'. Mr C Slarke, counsel for the respondent, argued that in order for a land use to be consistent or to be potentially consistent with that purpose, it requires that either the use itself be of an industrial nature or that it be one which is beneficial to, or facilitative of, an industrial use. The respondent contends that the proposed use is not consistent with the purpose of Precinct B because it is not an industrial use, it has no connection with any industrial land use and does not facilitate industrial land use in any way. Moreover, the respondent says that the proposed development prevents a not insubstantial part of the subject site (approximately 100m2) from being used for industrial or related purposes and that this area of the subject site will likely become degraded as it will be essentially inaccessible. Accordingly, the respondent submits that the proposed use is inconsistent with the objectives and purposes of Precinct B and therefore not permitted.
The applicant asserts that the proposed use may be consistent with the objectives and purpose of Precinct B and therefore should be considered as discretionary and considered on its merits. The applicant submits that the 'Purpose' section of SCA 10 should not be considered in isolation, but together with the balance of the Scheme provisions: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
The applicant argues that there are many defined and listed land uses capable of approval within Precinct B of SCA 10 which are not an industry use as defined by the Scheme. The applicant referred to a number of decisions of the Tribunal that adopted the approach of looking at the category of use classes in the zoning table in order to assist in ascertaining the intent of the zone: see Shri Shirdi Sainath Perth Inc v City of Gosnells [2017] WASAT 24 (Shri Shirdi Sainath Perth) and Evangel Christian Fellowship Inc and Shire of Serpentine-Jarrahdale [2017] WASAT 159 (Evangel Christian Fellowship Inc).
The applicant submits that if a narrow application of the wording of the 'Purpose' is applied, as suggested by the respondent, the use not listed provisions have no work to do.
The principles in relation to the proper interpretation of provisions of local planning schemes were set out by the Tribunal in Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 as follows at [20]-[21]:
Under s 87(4) of the PD Act, [a local planning scheme] 'has full force and effect as if it were enacted by [the PD Act]'. The Court of Appeal has recently said the following in relation to statutory interpretation:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; [2018] WASAT 12 Page 14 (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78]. (City of Kwinana v Lamont [2014] WASCA 112 at [47]).
In giving the words of a planning scheme the meaning that the maker of the scheme is taken to have intended them to have, the terms of the planning instrument:
… will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
(Chiefari v Brisbane City Council [2005] QPELR 500 at 502 (Wilson [DC]J); referred to by the Tribunal in Galloway and Associates and City of Melville [2007] WASAT 238 at [41]).
Applying these principles of interpretation, in our view, the proposed development is not capable of approval under LPS 24. We accept the respondent's submissions for the following reasons.
In order to determine the permissibility of a use not specifically mentioned in the Use Tables contained in SCA 10, the relevant provisions in SCA 10 require the decision-maker to decide whether the proposed use is consistent with, may be consistent with, or is not consistent with, the objectives and purpose of the precinct.
Precinct B is described as '[t]o comprise industrial land uses' (except those which are considered undesirable for reasons of noise, odour or atmospheric emissions). To gain an understanding of this description it is necessary to consider it in light of the purpose of SCA 10, which is:
To facilitate the redevelopment of Lot 10 Railway Parade, Bayswater site into a quality industrial/commercial estate, guiding development form and land use in a manner which articulates a high level of amenity whilst achieving well designed, functional and efficient buildings.
In order to achieve the overarching purpose of SCA 10, Lot 10 Railway Parade site (Lot 10) is divided into three precincts and the intended purpose for each precinct is described. It is clear from the description of the three precincts that the aspirations for Precinct A are different to those for Precincts B and C in facilitating the redevelopment of Lot 10. Precinct A is to comprise commercial land uses and selected compatible industrial land uses that will not cause injury to or adversely affect the amenity of the commercial precinct, whilst Precincts B and C are to comprise of industrial uses that do not produce noise, odour or atmospheric emissions. This contrast is also reflected in the type and permissibility of uses within the Precincts.
Plainly, the objective of Precinct B is to facilitate the redevelopment of the land within the precinct area of Lot 10 for industrial purposes in a manner that demonstrates 'a high level of amenity' and achieves 'well designed, functional and efficient buildings'.
It cannot be said, and it has not been argued, that the proposed use is of an industrial nature or something akin to an industrial use. In determining whether the proposed use is, may be, or is not consistent with the objectives and purpose of Precinct B, the applicant encourages the Tribunal to take a similar approach to that adopted in Shri Shirdi Sainath Perth and Evangel Christian Fellowship Inc (two previous decisions) where the Tribunal looked at the nature and broad range of uses listed in the Zoning Table in order to determine whether the proposed use was consistent with the purpose and objective of the particular zone.
The Tribunal is not persuaded that, in this instance, the approach taken in the two previous decisions is the correct approach to be followed in this decision for the following reasons.
Firstly, the subject site is located in a SCA and comprehensive planning has been undertaken to identify and allow for redevelopment in a particular form, whereas the two previous decisions of the Tribunal involved land located in one of the general zones provided for under the Scheme to which the purpose and objectives of the zone applied to broad areas within the whole of the municipality.
Secondly, the 'comprehensive planning' undertaken for SCA 10 obviously involved the purposeful selection of possible land uses within the precinct areas to ensure that the redevelopment of Lot 10 accords with the purpose of the SCA. This can be clearly observed from the different range of uses selected for Precinct A and Precincts B and C and the differences in the permissibility of uses in those precincts. This fine grain planning cannot be compared with the broad classification of use class permissibility for zones covering an entire municipality.
Thirdly, given the 'comprehensive planning' undertaken for SCA 10 and the fact that a determination of the use permissibility for a particular use not specifically mentioned in the Use Tables requires, for the most part, a decision by absolute majority of the Council, the selection of the range of uses that may be appropriate within the particular precincts cannot be minimised and a careful approach must be taken so as not to attach any significance to the inclusion of non-industrial uses that may otherwise not be consistent with the purpose of the specific precinct. In the selection of the range of uses that may be appropriate within the particular precincts, consideration may have been given to the inclusion of non-industrial uses that may not be consistent with the purpose of the precinct but considered suitable and to avoid any doubt, included in the Use Tables.
Further, the Tribunal does not agree with the applicant's submission that, if a narrow application of the 'Purpose' is applied, the 'use not listed' provisions have no work to do. Firstly, there are a number of industrial related use classes listed in the Zoning Table that have not been identified in the Use Tables, such as Automotive Panel Beating/Spray Painting; Caretaker's Dwelling; and Cottage Industry. Secondly, a glance at Appendix 1 - Interpretation of the Scheme shows that there are a number of defined uses that are commonly located in Industrial areas that are not readily discernible as a use listed in the Use Table, such as commercial vehicle parking; transport depot (other than for motor vehicles), motor vehicle hire and salvage yard. Thirdly, the Model provisions for local schemes in Sch 1 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (PD Regulations) contains a number of land use terms that may not necessarily fit comfortably with any of the use classes specified in the Use Tables; these include, resource recovery centre; trade supplies; and waste storage facility. There are undoubtedly others uses that have not been identified. To the contrary, there is work for the 'use not listed' provisions of SCA 10.
The applicant further argues that third party advertising is contemplated in the Industrial zone and SCA 10 of the Scheme as the City's Signage Policy, which was adopted prior to the incorporation of SCA 10 into the Scheme, only prohibits 'Hoardings' in residential areas. We do not accept that argument. In making a determination under the Scheme regard must be had to the policy only to the extent that the policy is consistent with the Scheme (cl 3(5) of the deemed provisions).
The proposed use cannot be characterised as an industrial use, nor can it be said to have any connection with or facilitate an industrial land use in any way. As such, the Tribunal does not consider the proposed use to be consistent with the objectives and purpose of Precinct B of SCA 10, and therefore, is not capable of approval. However, if we are wrong on this point and discretion does exist to approve the proposed use, the Tribunal has proceeded to consider the merits of the application and determine the remaining issues.
Is the proposed development compatible with its setting and does it have an acceptable impact on the amenity of the locality? (cl 67(m) and 67(n) of the deemed provisions)
The respondent contends that the proposed development will adversely affect the amenity of the locality and is not compatible with its setting. The respondent acknowledges that the sign will be located in an industrial area but argues that it is to be located in a new industrial area intended to have high quality built form design and amenity and that the proposed development will adversely affect the visual amenity of the new industrial estate, as well as, the view from exterior vantage points such as Tonkin Highway and the dual-use path that runs parallel with Tonkin Highway (dual-use path).
'Amenity' as defined in cl 1 of Sch 2 of the deemed provisions 'means all those factors which combine to form the character of an area and include the present and likely future amenity'. The amenity of the locality, including the character of the locality, is one of the matters specified in cl 67 of the deemed provisions to which due regard is to be given in the consideration of an application for development approval. In the context of the PD Act, the term 'due regard' has been interpreted to mean that a decision-maker must give 'proper, genuine and realistic' consideration to such matters: City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96 at [46].
In order to assess the impacts of the proposed development on the amenity of the locality, it is necessary for the Tribunal to undertake an objective inquiry as to the character of the area that represents that state of amenity (see Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora)) and an assessment of the likely future character of the area (see Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 (Sunbay)).
The Tribunal had the benefit of expert evidence from Mr Steven Di Piazzi, senior planning officer at the City of Bayswater, called on behalf of the respondent and Mr Nickolas Hidding, a town planning consultant, called on behalf of the applicant.
Mr Hidding in his witness statement defined 'locality' as follows:
The extent of locality (Locality) …, is the 'General Industry' zoned area generally bounded by:
(a)Collier Road to the north;
(b)Clune Street to the east;
(c)Railway Parade to the south; and
(d)Beechboro Road/Clavering Road to the west.
Mr Hidding in oral evidence sought to clarify that the use of roads to define the locality should not be taken as limiting consideration of the visual experience as viewed from both sides of Tonkin Highway. Mr Hidding also confirmed that in his view the same locality applied when considering the compatibility of the proposed development with its setting.
Mr Di Piazzi did not agree with the 'locality' as defined by Mr Hidding and considered it to a considerably smaller area confined to the 'Tonkin Highway industrial estate' and its immediate surrounds. He also held the view that, in this instance, the same 'locality' applied to both the assessment of amenity and the compatibility of the proposed development with its setting.
The Tribunal in Ridgecity Holding Pty Ltd and City of Albany [2006] WASAT 187 considered the concept of locality and observed at [42] as follows:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
The Tribunal is not convinced that 'locality' for the purposes of amenity, should be limited to the area as defined by Mr Di Piazzi, or to the extent delineated by Mr Hidding in his Annexure 3 (see Exhibit 14). The Tribunal accepts that the area referred to as the 'Tonkin Highway industrial estate', its immediate surroundings and the extent of the 'Existing General Industrial Area' on the eastern side of Tonkin Highway should be included as part of the 'locality' but does not accept the inclusion of the whole of the General Industry zoned area on the western side of Tonkin Highway. As Mr Hidding correctly accepted under crossexamination, there are extensive areas within that industrial area where the proposed development will not be visible and will not have any impact on amenity. Mr Hidding quite rightly conceded that the 'locality' should be 'pulled back somewhat' to 'the western side of the Tonkin Highway' and to some internal roads within the industrial area. The Tribunal considers that the land adjacent to Flinders Street and the portion of Bassendean Road that runs parallel with Tonkin Highway should also be included in the area identified as the 'locality' as the proposed development will be visible from these areas, as confirmed by the view conducted with the parties and their representatives on 24 June 2019.
For the purposes of an assessment of the compatibility of the proposed development with its setting, the Tribunal prefers the 'locality' defined by Mr Di Piazzi as there are specific design requirements prescribed for SCA 10 that are particular to that area, which are intended to produce characteristics which will differ from the boarder industrial area.
In Tempora, the Town Planning Appeal Tribunal observed at [304] that 'the determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. Consistent with the definition of amenity in cl 1 of the deemed provisions, Sunbay also confirmed that an evaluation of amenity should take account of future amenity: at [22].
The Tribunal accepts the following characterisation of the 'locality' as described by Mr Hidding in his witness statement:
(a)The character of the locality within which the Proposed Development is to be installed is a developing industrial Estate set within an existing industrial area;
(b)The developing industrial Estate comprises new subdivisional roads, vacant lots (for sale), buildings under construction and some recently completed buildings;
(c)The developing industrial Estate comprises lots that range in size … There are:
(i)Smaller sized industrial lots ranging between 1000 and 2000m²
(ii)Medium sized industrial lots ranging between 2000 3000m²; and
(iii)Larger sized lots that range between 4000m² 1.5 hectares. It is noted that the larger lots are generally located adjacent to Tonkin Highway and in my view, this [is] to accommodate larger industrial operations and to obtain exposure to Tonkin Highway [from 1000m² up to 1.5 hectares];
(d)The amenity of the developing industrial Estate is expected to be generally consistent with the amenity of new industrial areas, with generally large buildings built to site boundaries, minimalistic landscaping (lawn and trees), and defined car parking, loading and storage areas;
(e)The amenity of the wider locality, which is characterised by older industrial developments, is generally poor, with many ageing buildings, ad-hoc development, overgrown landscaping, varying built form types and heights, inconsistent fencing, and often, dilapidated buildings and other structures predominating the Locality (refer Photographs 8 - 14 of Annexure 4);
(f)There is no landscaping or historic significance associated with the Land or Locality;
(g)The land is not adjacent to or near any residential zoned properties;
(h)The proposed development cannot be seen from any residential zoned properties;
(i)Tonkin Highway adjacent to the Land is a recently upgraded freeway standard road;
(j)The Land and immediately adjacent land (Lot 191) are currently vacant and form part of the newly created Estate (refer Photographs 3 - 4 of Annexure 4).
(k)Other land within the Estate is being developed for a range of industrial land uses of varying size and heights (refer Photographs 1, 6 and 7 of Annexure 4); and
(l)Immediately to the south of the Land is a drainage sump (Lot 7) for the Estate surrounded by large trees that were retained as part of the subdivision of the Estate (refer Photographs 2 - 4 of Annexure 4).
Mr Hidding, in his witness statement also detailed the permissible height ranges within the locality, which are as follows:
(a)two (2) storeys in the existing general industry area outside of SCA 10;
(b)three (3) storeys within precinct B of SCA 10; and
(c)five (5) storeys within precinct A of SCA 10.
Mr Foley, Counsel for the applicant, made the following submissions in his closing (ts 13, 31 July 2019):
… travelling to the site from the north, down Tonkin Highway - a person on the road or on the bike path would pass - would travel past a municipal waste transfer Station, concrete batching plants, a concrete crushing plant on one side, on the same side of the highway as the bike path and road travel. On the other side you've got Bunnings setback considerably with large signage and the W.A. Asset Plumbing building on the corner which has relatively large signage fronting the roadway.
When approaching the site from Collier Road on the eastern side - so travelling west down Collier Road to turn onto Tonkin Highway, you will be passing, on the left-hand side, industrial buildings, a concrete recycling plant on one side, concrete batching plant on the other side, past the waste transfer station on the corner. You will see the pet store - the big blue pet store on the corner, and turn onto the Tonkin Highway. As you approach the site from the north, but travelling east along Collier Road, you will pass the traffic lights, the clutter of multiple existing and historical signage. You will pass the pet store on one side - big blue building, and W.A. Assets and the other buildings on the left-hand side, and turn into the site.
When you're approaching the site from the south, along Tonkin Highway and you're heading north, on the left-hand side of the old industrial area there is a storage facility which contains (indistinct) containers piled up 5 and 6 high, which provide you with some context as to the height. And on the right hand side, while currently undeveloped, it is expected that there will be development on that site. If you're approaching the site from the south heading north on the bike path your approach goes through that underpass which we drove past on the site - graffiti, smashed bottles. There signage within the road reserve - within the railway reserve to approach the site.
The Tribunal considers that this description gives a fair account of the visual amenity as observed from the road environment, although Mr Foley did not highlight the mature vegetation strip on the western side of Tonkin Highway and its screening effect of some parts of the old industrial area nor did he refer to the boundary walls that assist in screening some of the industrial activities that back onto the Collier Road/Tonkin Highway on-ramp (as illustrated in Exhibit 17 and observed on the view).
The location of the proposed development is such that it will maximise visibility from Tonkin Highway. There will be three identifiable areas from which the proposed development will be a dominant feature affecting the visual amenity of the locality. It will be highly visible from within the new industrial estate of SCA 10 as most of the estate is vacant land at present. The extent of its visibility in the future as the industrial estate develops is uncertain as it is dependent on the built form and siting of the new developments on the surrounding lots but it is likely there will be limited visual perceptions of the proposed development from adjoining lots and Radius Loop. The proposed development will be clearly visible as far as the Collier Road/Tonkin Highway interchange (approximately 680 metres from the subject site) and across Tonkin Highway from the old industrial area in the Raymond Street/Flinders Street/Pickett Street vicinity and some points along Bassendean Road. It will also be highly visible from the dual-use path and from both the north and south bound lanes of Tonkin Highway.
The applicant does not resile from the fact that the proposed development will be visually prominent from certain viewing points within the locality. Rather, the applicant says two things. Firstly, its prominence in the landscape is expected to reduce over time as SCA 10 develops. Secondly, the applicant concedes that the freeway environment will be the primary location where the proposed development will have the most visual impact in the locality, but argues that a sign such as the one proposed, in such a context, is not unexpected nor out of character.
Mr Hidding opines that 'the character of the locality, being industrial in nature, will not be compromised by the proposed development'. He submits that the development form anticipated in SCA 10 will provide a background and setting that will reduce its prominence when viewed from Tonkin Highway and that the height of the proposed development is comparable with the anticipated height of buildings in SCA 10 and as such, will not dominate the landscape.
The Tribunal agrees that the development of SCA 10 will assist in reducing the visual impact of the proposed development as it will read as part of the industrial estate whereas, at present, it will read as an isolated structure without any built context. However, this is not to say that the visual impact of the proposed development will be in keeping with the existing or future character or setting of the SCA 10 locality.
Clearly, the scheme provisions of SCA 10 do not contemplate a structure of the type proposed. The provisions provide for buildings with a particular built form, scale and mass to promote 'well designed, functional, and efficient buildings'. A large free standing sign on its own lot is not in keeping with the built form vision for SCA 10. Although, it is accepted that given the location of the proposed development in the north-eastern corner of the subject site, there is potential for the remaining portion of the lot to be developed for an additional land use. However, given that there is no material proposal before the Tribunal, the utility or otherwise of such a proposal is not assessable. The form and significant scale of the proposed development, together with its lack of association with a building in the industrial estate, means that it will stand out as an anomaly; discordant with the desired future character and amenity of the SCA 10 and at odds with its setting.
The applicant was at pains to point out existing signs in the area to demonstrate that the proposed development would not be out of keeping with the character of the locality. All of the signs identified were static and all but one were directly related to the use of land on which they were located and painted onto the external façade of the associated building. Some were outside of the area identified as the 'locality'. The billboard at No. 222 Collier Road, which displays third party advertising, was approved in 1994 and is approximately 42m2 in area (about half the size of one of the faces of the proposed sign). The Tribunal was told that there is no comparable sized sign within the entire municipality, let alone the 'locality'.
In addition to the proposed development not being comparable with any of the existing signs referred to by the applicant, the Tribunal is not persuaded by the applicant's attempt to highlight the visual impact of the existing signs in the locality as a means to suggest that the proposed development would be in keeping with the character of the locality as, conversely, it could be argued that additional signage could contribute to visual clutter and further contribute to the erosion of the visual quality of the locality. Furthermore, the purpose of SCA 10 is to facilitate redevelopment that 'articulates a high level of amenity', therefore, it is unlikely that many of the examples referred to would be considered to satisfy that objective.
Both planning experts agree that the proposed development will be visually prominent from both the dual-use path and the north and south bound lanes of Tonkin Highway. Mr Hidding contends that the proposed development is consistent with modern roadside advertisements and referred to the growth of this type of signage. He considers it is entirely appropriate to see a sign of the height and type in this location. In support of his stance, he included in his witness statement photographs of various existing LED third party advertising signs that can be observed in the Perth Metropolitan Region (see Annexures 5 and 6 of Exhibit 14). Further, he also told the Tribunal that according to a recent news report MRWA has indicated that there are eight more large format digital billboards planned, (but do not have planning approval) one of which includes the Hutton Street Overpass on the Mitchell Freeway (northbound) (see Exhibit 16 Annexure NHSUP 14).
As to the roadside third party advertising signs identified by Mr Hidding in his witness statements, the Tribunal has very limited, or, for most of the examples, no knowledge or understanding of the particular circumstances surrounding the grant of planning approval, or not, for each sign. The Tribunal can do no more than acknowledge that there are some very large third party advertising signs spread across the Perth Metropolitan area. However, the presence of third party signage elsewhere in freeway environments does not translate into an acceptance that these large format advertising signs are not unexpected, and therefore not out of character in freeway road environments.
In this instance, this section of Tonkin Highway has recently undergone a significant design upgrade and is constructed as a divided carriageway with three lanes in each direction, as well as on and off ramps with merging and diverging lanes. Notably, there are a number of directional road signs of various dimensions located within the road reserve which form part of the character of a freeway road environment. As part of the Tonkin Highway upgrade, landscaping works and the construction of a dual-use path have been installed, which will in the future provide a vegetated buffer between the road pavement of Tonkin Highway and the SCA 10 industrial estate. The proposed development will 'sit proud' and be a visually dominant feature in the existing and future landscape of the locality.
While the concession of the applicant to reduce the height of the proposed development to 16.5 metres assists in reducing the visual impact of the proposed development on the locality, in particular Precinct B of SCA 10, the Tribunal considers that the proposed development will have a deleterious impact on visual amenity of the existing and future amenity of the locality and that the degree of that impact is unacceptable.
Further, the Tribunal finds that the proposed development is not consistent with the planned vision of SCA 10 and as such, is not compatible with its setting.
Is there a cogent reason to depart from the City of Bayswater Signage Policy?
The purpose of the Signage Policy is:
To ensure that signs within the City of Bayswater are designed to be sympathetic and harmonious with the surrounding environment, while ensuring structural and public safety[.]
The policy statement sets out both general and specific requirements pertaining to signage. The relevant requirements are:
a.A sign shall be designed and located such that it is sympathetic and harmonious with the character of the surrounding environment and with the building or structure to which it is attached;
…
i.A sign shall not be erected or maintained in any position which obstructs vehicle sight lines or is detrimental to traffic safety;
…
n.Unless expressly permitted within this policy, signs shall not be supported on private land that is not associated with the goods and services advertised on the sign[.]
Conclusion
The Tribunal finds that the proposed use is not consistent with the objectives and purpose of Precinct B of SCA10 and is therefore not permitted, and as such is not capable of approval under LPS 24 and on this basis, the application for review should be dismissed and the decision of the respondent to refuse development approval should be affirmed.
However, if the Tribunal is wrong in its consideration and discretion exists to approve the proposed development, the Tribunal in considering the substantial merits of this particular case, does not consider the proposed development to be consistent with the objectives of the planning framework as the proposed development will adversely impact on the visual amenity of the locality; is not compatible with its setting; and will reduce the level of traffic safety in a moderately complex road environment that requires a high level of driver attention and therefore, in the interest of orderly and proper planning declines to exercise discretion to approve the proposed development. Consequently, the proposed development warrants refusal under both the MRS and LPS 24.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
31 OCTOBER 2019
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