Newsonic Pty Ltd and City Of Stirling
[2008] WASAT 282
•26 NOVEMBER 2008
NEWSONIC PTY LTD and CITY OF STIRLING [2008] WASAT 282
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 282 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:238/2008 | 19 NOVEMBER 2008 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) | 25/11/08 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Subdivision approval for amalgamation granted subject to conditions Development approval granted subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | NEWSONIC PTY LTD CITY OF STIRLING WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision application Amalgamation of lots Development application Demolition of industrial and commercial buildings and construction of warehouse and office buildings Proposal for regional road through site in structure plan framework on exhibition Orderly and proper planning Whether road is seriously-entertained planning proposal Whether applications likely to impair or render more difficult road proposal Weight to be given to road proposal Whether office component of part of proposed development is incidental to the predominant use of the site Condition Developer contribution Ceding land subject to road reservation Whether condition fairly and reasonably relates to proposed subdivision or development |
Legislation: | City of Stirling District Planning Scheme No 2, cl 1.3.2.1, cl 1.3.2.2, cl 4.2.2, cl 4.2.6.2, Pt 4 |
Case References: | Fitzwood Pty Ltd v Whittlesea City (1992) 78 LGERA 193 Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 |
Orders | DR 238 of 2008,1. The application for review is allowed.,2. The deemed refusal by the respondent of the development application for a warehouse and office development at Lots 6, 8 and 9 Scarborough Beach Road, Osborne Park is set aside and a decision is substituted that development approval is granted subject to the following conditions:,(i) The development shall be carried out in accordance with six sheets of plans drawn by Mayer Shircore & Associates Project No 6574 Sketch No SK 015 dated June 2008.,(ii) The median strip in Scarborough Beach Road in front of the western driveway crossover is to be extended by 20 metres at the applicant/developer's cost.,(iii) Any existing crossovers not included as part of the proposed development on the approved plans are to be removed. New kerbing and verge to be reinstated to the satisfaction of the Manager, Engineering Operations.,(iv) The levels of the western and eastern driveways, between the front property boundary of the site and the line setback 16 metres from that boundary, shall match the respective levels of the adjoining lots to the west and east, at their boundaries with the site.,(v) Vehicular parking, manoeuvring and circulation areas indicated on the approved plans being sealed and drained to the satisfaction of the City, the parking spaces being marked out and maintained in good repair.,(vi) The amalgamation of the subject Lots 6, 8 and 9 Scarborough Beach Road, Osborne Park is required prior to commencement of development.,(vii) The initial partitions between office and warehouse units not being altered without the written consent of the City first being obtained.,(viii) All land indicated as landscaped area on the approved plans being developed on practical completion of the building to the satisfaction of the City. All landscaped areas are to be maintained in good condition thereafter.,(ix) The street verge being landscaped and reticulated to the satisfaction of the City and maintained in good condition thereafter.,(x) A separate signage strategy is to be submitted to the City for approval prior to the issue of a Building Licence.,(xi) A stormwater drainage management plan for the site is to be formulated and implemented to ensure that at all times stormwater run-off is contained on site and appropriately directed for disposal to the satisfaction of the City.,(xii) Bin enclosures being screened by a feature brick wall, not less than 1.5 metres in height, constructed of the same bricks as the building. Adequate gates are to be provided.,(xiii) The facades of buildings being constructed of brick, stone or concrete or, in respect of that portion above 3.6 metres in height, such other material as may be approved by the City.,(xiv) Any on-site floodlights not being positioned or operated in such a manner as to cause annoyance to surrounding uses or passing traffic.,(xv) All off-street parking to be available on site for all employees and visitors, free of charge, to the satisfaction of the City.,(xvi) No goods or materials being stored, either temporarily or permanently, in the parking or landscaped areas or within access driveways. All goods and materials are to be stored within the buildings or storage yards, where provided.,DR 249 of 2008,1. The application for review is allowed.,2. The refusal by the respondent to allow the subdivision in the form of land amalgamation of Lots 6, 8 and 9 Scarborough Beach Road, Osborne Park is set aside and a decision is substituted that subdivision approval is granted for land amalgamation of Lots 6, 8 and 9 subject to the following conditions:,(i) The approved subdivision (land amalgamation) is shown on Plan No 3042-3-001dated 19 February 2008 drawn by Koltasz Smith.,(ii) All septic sewer systems including all tanks and pipes and associated drainage systems (soakwells or leach drains) and any stormwater disposal systems are to be decommissioned, removed, filled with clean sand and compacted. (City of Stirling),(iii) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lot shown on the approved plan of subdivision. (Western Power),(iv) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of suitable easements under s 167 of the Planning and Development Act 2005 (WA) for existing and/or future distribution (less than or equal to 33,000 volts) electricity network infrastructure. (Western Power),(v) The provision of easements for existing or future water, sewerage and/or drainage infrastructure as may be required by the Water Corporation being granted free of cost to that body. (Water Corporation) |
Summary | This case concerned applications to amalgamate three lots in the Osborne Park industrial area, demolish industrial and commercial buildings and construct a warehouse and office building on the site. The main question in the proceedings was whether a proposal to extend a road through the site warranted refusal of the applications.,The Tribunal determined that the proposed land amalgamation and development is not materially inconsistent with the contemplated road extension and is not likely to impair or render more difficult the road extension in any material way. This is because the proposed building is of a similar character and scale and occupies substantially the same area as the existing buildings on the site.,Furthermore, the Tribunal determined that no more than limited weight could appropriately be given to the contemplated road extension in the circumstances of the case, because it is yet to be fully investigated and evaluated in terms of traffic engineering, its ultimate approval is relatively uncertain, and it cannot be regarded as likely to occur in the reasonably foreseeable future.,The Tribunal granted conditional approval for the proposed land amalgamation and development. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : NEWSONIC PTY LTD and CITY OF STIRLING [2008] WASAT 282 MEMBER : MR D R PARRY (SENIOR MEMBER)
- MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
- Applicant
AND
CITY OF STIRLING
Respondent
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
(Page 2)
Catchwords:
Town planning - Subdivision application - Amalgamation of lots - Development application - Demolition of industrial and commercial buildings and construction of warehouse and office buildings - Proposal for regional road through site in structure plan framework on exhibition - Orderly and proper planning - Whether road is seriously-entertained planning proposal - Whether applications likely to impair or render more difficult road proposal - Weight to be given to road proposal - Whether office component of part of proposed development is incidental to the predominant use of the site - Condition - Developer contribution - Ceding land subject to road reservation - Whether condition fairly and reasonably relates to proposed subdivision or development
Legislation:
City of Stirling District Planning Scheme No 2, cl 1.3.2.1, cl 1.3.2.2, cl 4.2.2, cl 4.2.6.2, Pt 4
Result:
Subdivision approval for amalgamation granted subject to conditions
Development approval granted subject to conditions
Category: B
Representation:
DR 238 of 2008
Counsel:
Applicant : Mr MJ Flint
Respondent : Mr A Roberts
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods
- <mpr>
DR 249 of 2008
Counsel:
Applicant : Mr MJ Flint
Respondent : Ms CA Ide
Solicitors:
Applicant : Lavan Legal
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Fitzwood Pty Ltd v Whittlesea City (1992) 78 LGERA 193
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
(Page 4)
Summary of Tribunal's decision
1 This case concerned applications to amalgamate three lots in the Osborne Park industrial area, demolish industrial and commercial buildings and construct a warehouse and office building on the site. The main question in the proceedings was whether a proposal to extend a road through the site warranted refusal of the applications.
2 The Tribunal determined that the proposed land amalgamation and development is not materially inconsistent with the contemplated road extension and is not likely to impair or render more difficult the road extension in any material way. This is because the proposed building is of a similar character and scale and occupies substantially the same area as the existing buildings on the site.
3 Furthermore, the Tribunal determined that no more than limited weight could appropriately be given to the contemplated road extension in the circumstances of the case, because it is yet to be fully investigated and evaluated in terms of traffic engineering, its ultimate approval is relatively uncertain, and it cannot be regarded as likely to occur in the reasonably foreseeable future.
4 The Tribunal granted conditional approval for the proposed land amalgamation and development.
Introduction
5 Newsonic Pty Ltd (Newsonic) seeks review by the Tribunal of the following decisions:
1) The deemed refusal by the City of Stirling (City or Council) of a development application for approval to demolish three one-level and two-level industrial and commercial buildings and to construct a single storey warehouse and office building with undercroft car parking at Lots 6, 8 and 9 Scarborough Beach Road, Osborne Park (site) (proceedings DR 238 of 2008).
2) The deemed refusal (and, subsequently, actual refusal) by the Western Australian Planning Commission (Commission) of a subdivision application for amalgamation of the three lots comprising the site (proceedings DR 249 of 2008).
(Page 5)
6 The site is generally zoned 'Industrial' under the Metropolitan Region Scheme (MRS). A 2.5 metre wide strip along the northern edge of the site is reserved under the MRS as 'Other Regional Roads' for the purpose of increasing the width of Scarborough Beach Road. The site is zoned 'General Industry' under the City of Stirling District Planning Scheme No 2 (DPS 2 or Scheme).
7 The site has a total area of approximately 2.23 hectares and a frontage of approximately 148 metres to Scarborough Beach Road. The site is located on the southern side of Scarborough Beach Road, approximately midway between Selby Street North to the west and Harborne Street to the east, in the Osborne Park industrial area.
8 A notable and unusual feature of this locality is that there is no connection between Scarborough Beach Road to the north and Jon Sanders Drive to the south for a distance of approximately 2 kilometres to 2.5 kilometres between Selby Street North and Harborne Street.
9 Approximately 500 metres west of Selby Street North, Stephenson Avenue connects Scarborough Beach Road with Jon Sanders Drive. There is an unconstructed 'Primary Regional Roads' reservation under the MRS extending Stephenson Avenue from Scarborough Beach Road north to the Mitchell Freeway.
10 Mr John O'Hurley is a town planner employed by the Department for Planning and Infrastructure (DPI) and DPI's Principal Project Officer in the Urban Innovation Section of the Policy Group Division. Mr O'Hurley gave evidence on behalf of the Commission and said that traffic congestion, access and egress on Scarborough Beach Road in the locality of the site is 'problematic' because of poor north-south connectors between the Mitchell Freeway and Jon Sanders Drive. Mr O'Hurley explained that, unless a further north-south connector is created between Scarborough Beach Road and Jon Sanders Drive, Stephenson Avenue 'would need to be of such a significant scale (up to 6 lanes in the worst case scenario) that it would literally dissect [sic] the proposed Stirling City Centre and undermine its functionality by effectively dividing the City Centre into two parts'.
11 A regional transport planning process is currently underway in relation to the Stirling City Centre, which lies to the west of Selby Street North, and its area of influence, within which the site is located. The current contemplation is that Hutton Street, which connects the Mitchell Freeway to the north with Scarborough Beach Road to the south and
(Page 6)
- which terminates on the opposite side of Scarborough Beach Road from the site, should be extended south through the site to Jon Sanders Drive. The site occupies approximately one-third of the extended route of Hutton Street between Scarborough Beach Road and Jon Sanders Drive. In order to reach Jon Sanders Drive, an extension of Hutton Street would also need to traverse three other industrial properties as well as two local roads and a reserved area.
12 The critical question in these review proceedings is whether the proposal to extend Hutton Street through the site warrants refusal of the proposed development and land amalgamation.
Issues for determination
13 The following two principal issues arise for determination in these reviews:
1) Whether the proposal is inconsistent with orderly and proper planning in terms of the strategic planning for the area which contemplates extension of Hutton Street through the site.
2) Whether the office component of Tenancy 1 is incidental to the predominant use of the site.
14 The Tribunal will address each of these issues in turn.
Is the proposal inconsistent with orderly and proper planning?
15 In September 2006, the Commission and the City entered into a Memorandum of Understanding to formalise a partnership approach to review the Stirling Regional Centre Structure Plan 1994 (1994 structure plan). The Commission and the City appointed a team of consultants, led by Hassell Ltd town planning consultants (Hassell), and Hassell carried out extensive stakeholder consultation.
16 It appears that the future form and function of Stephenson Avenue, also referred to as Stephenson Highway, has been a matter of controversy and debate between various authorities and stakeholders interested in the strategic planning and development of the Stirling City Centre.
17 In December 2007, the Commission resolved to support a workshop on the Stirling City Centre, with the aim of determining the form and function of Stephenson Avenue/Highway as the basis of a new structure plan for the Stirling
(Page 7)
- City Centre. The form of the workshop selected was an Enquiry by Design, which is 'an intense and interactive design-based workshop that aims to encourage the resolution of complex issues' by bringing together people with a diverse range of skills and local knowledge (Stirling City Centre Enquiry by Design Outcomes Report (Outcomes Report) page 3).
18 The Enquiry by Design took place in May 2008. Figure 13 of the Outcomes Report 'shows how connectivity in the area could be improved, with a subsequent improvement in levels of congestion'. Figure 13 appears to show how connectivity could be improved between Scarborough Beach Road and Jon Sanders Drive by the southern projection of Hutton Street to Jon Sanders Drive, the southern projection of Drake Street to the east to connect to local roads, and a new road further to the east, possibly to connect with Gould Street, a local road that could be extended to Jon Sanders Drive.
19 In June 2008, the Commission, the City, Main Roads WA, the Public Transport Authority, LandCorp and DPI formed the 'Stirling City Centre Alliance' (Alliance). Mr O'Hurley described the Alliance as 'a partnership between local and state government, community, and local business working together to create the vision for the Stirling City Centre'.
20 Mr O'Hurley said that the Alliance has commenced a planning process that includes the review and replacement of the 1994 structure plan with a new structure plan for the Stirling City Centre. To inform the process, the Alliance is coordinating an extensive consultation and technical review programme. This includes regular meetings of the stakeholder reference group, Alliance leadership team and Alliance board. Community open days to raise public awareness and encourage feedback took place on 20 September 2008 and 15 November 2008.
21 At the first meeting of the Alliance Board, on 25 August 2008, the board sought clarification on a number of matters including:
How challenging the possible future construction of the Liege/Odin link and/or the Hutton Street extension might be. It was noted that these are concepts and are not guaranteed but present viable possibilities for the future with mechanisms to reserve the option. (emphasis added)
22 In October 2008, Hassell finalised the draft Stirling City Centre Structure Plan Framework (draft framework) for the Alliance. Mr Daniel Heymans, a town planner employed by the City and a Senior Strategic Planning Officer in the City's Planning Business Unit, who gave evidence on behalf of the City, explained that the Commission requested
(Page 8)
- that the document produced by Hassell should be in the form of a draft framework, rather than a full structure plan, because 'Stephenson Highway has been a controversial issue for a number of years'.
23 The draft framework describes itself as 'a preliminary "framework" to guide ongoing statutory planning, policy setting and urban design' (page 6) and as 'the first step towards finalisation of a new generation of Structure Plan …' (page 7).
24 Under the heading 'Movement Network', the draft framework includes the following:
It has been agreed that private vehicle traffic arriving from the regional area or passing through the centre will be dispersed across a number of existing and proposed roads. Subject to further design investigation and consultation, these road links could include.
- An extension of Hutton Street to Jon Sanders Drive
…
- The dispersed network is illustrated in Figure 5 … (emphasis added) (page 15).
25 Under the heading 'Dispersed Regional Traffic', the draft framework includes the following:
It is challenging to identify a single route into and also through the Stirling Municipal Area that has a positive relationship with town centre access arrangements and minimally affects the amenity of local residential areas. In order to successfully integrate the needs of regional traffic movements with the growth aspirations and city centre role of Stirling Centre, a dispersed regional traffic network has been developed, and is shown in Figure 5 …
In order to support the implementation of the dispersed regional traffic network, various modifications and additions to the arterial road network will be required, including:
…
- Extension of Hutton Street … (pages 24 - 25).
26 Finally, the draft framework contains the following under the hearing 'Regional Road Network':
With the community, the Stirling City Alliance has developed a dispersed network model for designing and managing regional vehicle movement to and through the Stirling City study area. Dispersal implies accommodating regional traffic needs across
(Page 9)
- several lower order routes rather than concentrating it onto a single major highway or freeway. While this model is supported in principle, it is noted that a number of regional transport issues still require resolution.
The dispersed road network is described in Figure 5. (emphasis added) (page 37)
27 Figure 5 in the draft framework, which is entitled 'Dispersed Model', shows the extension of Hutton Street from Scarborough Beach Road south through the site to Jon Sanders Drive. Figure 5 does not show the other two possible road connections to improve connectivity shown on Figure 13 of the Outcomes Report.
28 On 21 October 2008, the City resolved to adopt the draft framework for advertising. The advertising period concluded on 24 November 2008. Mr Heymans gave evidence that the City's officers will review the public submissions and present a report to the Council in relation to further progress of the new structure plan on 16 December 2008. Mr O'Hurley also gave evidence that the Commission would attempt to look at the public submissions and the draft framework prior to the end of the year.
29 Mr Heymans gave evidence that, depending on the public submissions received and the decisions of relevant authorities, technical studies would need to occur in relation to the draft framework, including the dispersed road network, in early 2009. The draft structure plan would then need to be completed and adopted prior to the formulation and consideration of amendments to the MRS.
30 The City and the Commission each contend that Newsonic's proposals for the site are inconsistent with orderly and proper planning in terms of the strategic planning for the area which contemplates the extension of Hutton Street through the site. The City and the Commission each submit that the proposed extension of Hutton Street through the site is a seriously-entertained planning proposal that should be given significant weight in the exercise of planning discretion in this case, warranting refusal of the proposed development and land amalgamation.
31 In Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [45] (Nicholls), the Tribunal held as follows:
It appears that, when a draft planning instrument or policy or a draft amendment to a planning instrument or policy is raised for consideration in relation to a subdivision or development application, the planning consent authority or appeal tribunal must
(Page 10)
- undertake four stages of enquiry. The four stages are as follows:
(1) In jurisdictions where there is no statutory requirement to take into consideration a draft planning instrument or policy or a draft amendment to a planning instrument or policy once it has reached a certain specified stage, the authority or tribunal must consider whether the draft constitutes a seriously-entertained planning proposal. If it determines that it is a seriously-entertained planning proposal, it is a relevant matter for consideration in relation to the planning assessment.
(2) If the draft is a relevant matter for consideration, the tribunal must consider the extent to which the application before it is consistent with the planning objective or planning approach embodied or reflected in the draft. In particular, the authority or tribunal must consider whether the approval of the application is likely to impair the effective achievement of the planning objective or planning approach embodied or reflected in the draft or is likely to render more difficult the ultimate decision as to whether the draft should be made or its ultimate form.
(3) The authority or tribunal must consider the weight to be accorded to the consistency or otherwise between the application and the draft.
(4) The authority or tribunal must weigh its conclusions in relation to the foregoing matters in the balance along with all other relevant considerations relating to the application, and determine whether, in light of all relevant considerations, it is appropriate in the exercise of planning discretion to grant approval to the application and, if so, subject to what conditions.
32 Having been adopted for advertising, the draft framework is 'a serious and important planning document which defines, for the present, what the responsible authority sees as the orderly and proper planning for the area': Fitzwood Pty Ltd v Whittlesea City (1992) 78 LGERA 193. Therefore, as of 21 October 2008, the extension of Hutton Street through the site is a seriously-entertained planning proposal.
33 In relation to consistency with the contemplated road extension, Mr O'Hurley expressed the opinion that the proposed development and amalgamation would 'limit the ability to construct the Hutton Street extension, perhaps permanently, or postpone the opportunity to improve traffic planning and amenity of this area for the life of the proposed development (20 years or more)'. Mr O'Hurley gave two reasons for this opinion. First, he considers that the proposal involves an intensification of the existing use. Second, he thinks that approval of the applications would
(Page 11)
- make it 'highly unlikely that the landholders would be enticed or attracted' to an incentive proposal under which the authorities would allow an increase in land uses or intensive subdivision in return for developer contributions to partly fund the road extension.
34 Mr Heymans also considers that the proposed development and land amalgamation 'would preclude critical road links in the regional transport network and seriously impair the development of a regionally significant high-order activity centre at Stirling/Osborne Park'. Mr Heymans explained that this is because the demolition of the existing buildings on the site provides 'a window of opportunity' to reconfigure site development to accommodate the road extension, which would be lost if the proposed building were constructed.
35 The Tribunal does not consider that the proposed development and land amalgamation is materially inconsistent with the proposal to extend Hutton Street through the site. In particular, the Tribunal does not consider that the approval of the applications is likely to impair or make more difficult the road proposal in any material way.
36 This is because the site is already developed with substantial buildings that are spread across the site. Demolition of these buildings is not proposed for its own sake, but rather to enable construction of the replacement building. The replacement building is of similar character and scale to the existing buildings. There is no 'window of opportunity' that would be lost by approval of the applications.
37 Furthermore, in response to Mr O'Hurley's evidence, it is not clear whether the proposed development involves an intensification in terms of an increase in floor space on the site. However, even if the proposal does involve an intensification, the building proposed occupies substantially the same area as the existing buildings. In order for Hutton Road to be extended through the site, the relevant road authority would need to acquire the road reserve from the landowner and demolish any buildings upon it. This burden would not change materially whether the site is developed as presently or would be developed as proposed. Finally, if the Hutton Street extension were facilitated and partly funded by way of the scheme contemplated by Mr O'Hurley, that scheme could be effected whether or not the proposed development takes place.
(Page 12)
38 In Nicholls, the Tribunal identified, at [59], the following four criteria to determine the weight which should appropriately be given to a draft planning proposal:
(1) The degree to which the draft addresses the specific application.
(2) The degree to which the draft is based on sound town planning principles.
(3) The degree to which its ultimate approval could be regarded as 'certain'.
(4) The degree to which its ultimate approval could be regarded as 'imminent'.
39 The proposal to extend Hutton Street through the site plainly addresses the applications before the Tribunal, because the road would be located within the footprint of the proposed building.
40 In relation to the degree to which the road extension is based on sound town planning principles, Mr O'Hurley gave evidence that there is 'a high level of planning merit for the Hutton Street extension', having regard to the problematic nature of traffic congestion, access and egress on Scarborough Beach Road and the logical orientation of the extension to connect the Mitchell Freeway with Jon Sanders Drive. However, the concept of extending Hutton Street through the site is yet to be fully investigated and evaluated in terms of traffic engineering and transport planning. Mr Heymans said that 'early analysis' and 'early modelling' was undertaken in relation to traffic in and around the study area. However, both he and Mr O'Hurley acknowledged that there still needs to be a technical analysis of the road extension proposal. Unless and until this is undertaken, it could not be properly concluded that the proposal to extend Hutton Street is based on sound town planning principles.
41 In relation to the degree to which the road extension could be regarded as 'certain', Mr Andrew Roberts, counsel for the City, submitted, correctly, that there has been an 'evolution' in the strategic transport planning for the locality, from a general recognition of the need for connectivity to a more specific and focused position in the draft framework. However, the Tribunal considers that the Hutton Street extension is still relatively uncertain for five reasons.
42 First, the draft framework itself recognises the uncertainty by its references to its 'preliminary' nature, it being 'the first step', the need to still resolve a number of regional transport issues, and the identification of the Hutton Street
(Page 13)
- extension as an option that 'could' happen, 'subject to further design investigation and consultation'.
43 Second, the Hutton Street extension proposal is closely related to the issue of the future form and function of Stephenson Avenue/Highway, which, as noted earlier, has been a matter of controversy and debate between authorities and stakeholders. In particular, if Stephenson Avenue/Highway were not downgraded, there would be less reason to extend Hutton Street. It is not at all clear how this debate will ultimately be resolved.
44 Third, the proposal may be changed as a result of submissions received. Newsonic, which owns about one-third of the route of the proposed road extension, objects to the proposal. Mr Heymans said that normally submissions from landowners who are directly affected by a planning proposal are given greater weight than submissions from others.
45 Fourth, the City's Industrial Areas in Transition Management Strategy (Management Strategy)dated September 2004 states that, as 'Hutton Street is already overutilised and accident prone any plans to extend it would need to be accompanied with a full upgrade and widening of the road'. The document states that a previous plan to widen and improve Hutton Street was rejected in 1999 because of opposition from local business owners. Further, while the Management Strategy refers to a suggestion to improve the permeability of the industrial area by extending Hutton Street through to Jon Sanders Drive, it states that 'no extension should be considered until it becomes possible to remedy the existing congestion on Hutton Street'. Mr Heymans said that the road reserve in Hutton Street is 25 metres wide, whereas Main Roads WA has advised that a 30 metre wide road would be required. He also acknowledged that 'most proposals for road widening are met with opposition'.
46 Fifth, as noted earlier, the Hutton Street extension concept is yet to be fully investigated and evaluated in terms of traffic engineering. While 'early' work was done, there still needs to be a technical analysis of the proposal.
47 Having regard to these matters, as Mr Heymans candidly, but correctly, conceded, approval and implementation of the Hutton Street extension proposal 'could go either way'.
48 In light of the relative uncertainty and considerable work yet to be done in order to progress the extension of Hutton Street through the site, the proposal cannot be regarded as likely to occur in the reasonably foreseeable future.
(Page 14)
49 Having regard to each of these considerations, on balance, the Tribunal considers that no more than limited weight should appropriately be given to the proposal to extend Hutton Street through the site in the determination of these proceedings.
50 As the proposed development and land amalgamation is not materially inconsistent with the proposal to extend Hutton Street through the site and would not materially impair or make more difficult the achievement of that proposal, and as, in any case, only little weight should be accorded to the proposed extension in the circumstances, the Tribunal does not consider that the proposal is inconsistent with orderly and proper planning.
Is the office component incidental to the predominant use of the site?
51 Clause 1.3.2.1 of DPS 2 states, in part, as follows:
Table 1 - Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the various zones.
52 Similarly, cl 4.2.2 of DPS 2 states with particular reference to the General Industry zone:
The Zoning Table – Table No. indicates, subject to the provisions of the Scheme, the uses permitted in the General Industry and Mixed Business Zones.
53 The Zoning Table indicates that 'office' is a use that is not permitted in the General Industry zone unless the Council has exercised its discretion by granting planning approval: see cl 1.3.2.2 of DPS 2. In other words, under the Zoning Table, 'office' is a use that is capable of approval in the exercise of planning discretion.
54 However, cl 4.2.6.2 of DPS 2 states that:
All development in the General Industry and Mixed Business zones shall in addition to the provisions of the Scheme, comply with the General Industry and Mixed Business Design Guidelines prepared and adopted by Council.
55 It is common ground that the City's General Industrial Design Guidelines (Guidelines) is the Council document referred to in cl 4.2.6.2 of DPS 2. The Guidelines includes the following provision which is applicable to the
(Page 15)
- precinct in which the site is located:
Office uses shall only be incidental to the predominant use of the site. This will enable industrial businesses to provide on-site and 'in-house' services such as reception/customer service, payroll/human resources, drafting, and a venue for meeting business customers, while safeguarding the predominantly industrial character of these areas.
The office associated with Tenancy 1 is not considered to be an incidental land use on the site, as it is more than half the size of the warehouse area associated with the tenancy. Tenancies 2, 3 and 4 illustrate offices that are incidental to the main use of the site, being warehouse.
57 The proposed development is divided into four 'tenancies' with the floor space in each tenancy divided into the following areas:
• Tenancy 1 -
- Office - 2,879 square metres;
- Warehouse 1 - 2,900 square metres;
- Warehouse 2 - 2,176 square metres;
• Tenancy 2 -
- Office – 280 square metres;
- Warehouse - 1,950 square metres;
• Tenancy 3 -
- Office – 204 square metres;
- Warehouse - 1,100 square metres;
• Tenancy 4 -
- Office – 209 square metres;
- Warehouse - 1,183 square metres.
(Page 16)
58 In response, Newsonic contends that:
• the Scheme, under which 'office' use is capable of approval in the exercise of planning discretion, prevails over the Guidelines, under which 'office' use may only be incidental to the predominant use of the site, because the Guidelines are inconsistent with the Scheme in this respect;
• alternatively, the proposed development satisfies the Guidelines because the office uses are incidental to the predominant use of the site taken as a whole; and
• alternatively, the issue can be addressed by way of a condition of development approval reducing the floor space of the office component of Tenancy 1.
59 The Guidelines provision is not inconsistent with the Scheme in relation to 'office' use. Both cl 1.3.2.1 and cl 4.2.2 of the Scheme state that the Zoning Table indicates 'subject to the provisions of the Scheme' the uses permitted in the zone. Clause 4.2.6.2 of DPS 2 is relevantly a provision of the Scheme that, by requiring compliance with the Guidelines, qualifies the Zoning Table in relation to land within the precinct containing the site.
60 However, Newsonic is correct in its submission that the Guidelines provision requires a consideration of the site as a whole. As noted earlier, the provision states that '[o]ffice uses shall only be incidental to the predominant use of the site'. The predominant use of the site in the proposed development is warehouse, which occupies approximately 72.3% of the gross floor area of the building. While the office component of Tenancy 1 is of a similar size to the adjoining Warehouse 1 and occupies approximately 36% of the gross floor area of Tenancy 1, the Guidelines provision requires 'office uses' to be incidental to the 'predominant use of the site'. In the proposed development, office uses occupy only approximately 27.7% of the gross floor area of the building on the site.
61 The Guidelines also contains the following provision which applies to the precinct in which the site is located:
Showroom uses shall only be incidental to the predominant use of the site as established by the current Scheme provisions (i.e. no greater than 30% of gross floor area of buildings).
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62 This provision indicates that the Guidelines contemplate 30% of gross floor area of buildings as the threshold at or below which a use is 'incidental to the predominant use of the site'. As the proposed office uses occupy only approximately 27.7% of the building, they are 'incidental to the predominant use of the site'.
Conditions
63 As required by the Tribunal's programming orders, the City and the Commission each produced a set of without prejudice draft conditions of approval. Ultimately, the parties only disagreed in relation to two of the proposed conditions.
Dedication of reserved land
64 Both the City and the Commission proposed a condition that Newsonic must cede the 2.5 metre wide MRS road reservation at the northern edge of the site to the Crown free of cost. However, it is clear from the evidence of Ms Heidi Herget-Lansdell, a traffic engineer and transport planner who gave evidence on behalf of Newsonic, that this condition does not fairly and reasonably relate to the proposed development or land amalgamation.
65 While the proposed development would generate more vehicular movements than the existing uses on the site, on Ms Herget-Lansdell's evidence, the proposed development would operate satisfactorily in terms of traffic management without requiring dedication.
66 Furthermore, neither the City nor the Commission presented any evidence to support a finding that the proposed development gives rise to or contributes to the need to widen Scarborough Beach Road.
67 In these circumstances, the following observation made by the Town Planning Appeal Tribunal in Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 is apposite:
There is no justification for the use of conditions to promote the community infrastructure simply because the developer has come forward for approval.
Elimination of eastern access point
68 The site currently has four access points from Scarborough Beach Road. The proposed development removes the two central crossovers and retains crossovers at the eastern and western ends of the Scarborough Beach Road frontage. The eastern crossover is proposed to allow entry from and exit to both the eastbound and westbound
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- carriageways of Scarborough Beach Road. The western crossover is proposed to provide only left in access from and left out egress to the westbound carriageway. The development will ensure left in/left out only arrangements at the western access point by the extension of an existing median strip on Scarborough Beach Road, which is the subject of an agreed condition.
69 The City proposed a condition that the eastern crossover is to be closed, leaving the proposed development with only left in/left out vehicular movements through the western access point. Mr Roberts submitted for the City that this condition is appropriate on the basis of traffic safety and convenience.
70 However, Ms Herget-Lansdell gave evidence that the proposed development, including the eastern access point, would operate satisfactorily in terms of traffic safety and convenience. In particular, she said that a detailed review of the gap and queuing survey carried out by her firm as part of the transport impact assessment in support of the applications indicates that there is capacity for approximately 75 outbound right-turning private vehicles to egress from the eastern crossover during the Thursday afternoon peak hour. She explained that this measured capacity would accommodate the anticipated maximum outbound right-turn demand at the eastern crossover of 65 vehicles during the Thursday afternoon peak hour.
71 The City did not present any qualified transport engineering or transport planning evidence. In support of the disputed condition, the City relied solely on Mr Roberts' cross-examination of Ms Herget-Lansdell.
72 Mr Roberts challenged Ms Herget-Lansdell on the basis that her evidence in relation to the capacity of the eastern crossover did not include reference to truck movements and was inconsistent with computer modelling contained in the transport impact assessment showing significant delays.
73 However, Ms Herget-Lansdell answered Mr Roberts' challenges effectively. She said that truck movements are unlikely to significantly coincide with the Thursday afternoon peak, and that the observed capacity in the gap and queuing survey results was more accurate than the computer modelling, because the computer modelling did not take into account the actual road conditions in the location. In particular, traffic lights located at the intersection of Hutton Street and Scarborough Beach Road to the west of the eastern access point will provide adequate opportunity for
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- vehicles exiting the site from the eastern crossover to cross the westbound carriageway and proceed east along Scarborough Beach Road.
74 Consequently, neither of the two disputed conditions should be imposed.
Conclusion
75 The Tribunal has determined that the proposed development and land amalgamation is not inconsistent with orderly and proper planning in terms of the strategic planning for the area that contemplates extension of Hutton Street through the site. The applications before the Tribunal are not materially inconsistent with the contemplated extension of Hutton Street and are not likely to impair or render more difficult that proposal in any material way. Furthermore, only little weight can appropriately be given to the proposal to extend Hutton Street in the planning assessments in this case, because the road extension is yet to be fully investigated and evaluated in terms of traffic engineering, its ultimate approval is relatively uncertain, and it cannot be regarded as likely to occur in the reasonably foreseeable future.
76 The Tribunal has also determined that the proposed office uses would only be incidental to the predominant use of the site as warehouse.
77 The proposed development and land amalgamation involve an appropriate proposal for the site, having regard to its zoning, zone provisions in Pt 4 of the Scheme and the Guidelines. The proposal warrants conditional approval.
Orders
78 The Tribunal makes the following orders:
DR 238 of 2008
1. The application for review is allowed.
2. The deemed refusal by the respondent of the development application for a warehouse and office development at Lots 6, 8 and 9 Scarborough Beach Road, Osborne Park is set aside and a decision is substituted that development approval is granted subject to the following conditions:
- (i) The development shall be carried out in accordance with six sheets of plans drawn by Mayer Shircore & Associates Project No 6574 Sketch No SK 015 dated June 2008.
(ii) The median strip in Scarborough Beach Road in front of the western driveway crossover is to be extended by 20 metres at the applicant/developer's cost.
(iii) Any existing crossovers not included as part of the proposed development on the approved plans are to be removed. New kerbing and verge to be reinstated to the satisfaction of the Manager, Engineering Operations.
(iv) The levels of the western and eastern driveways, between the front property boundary of the site and the line setback 16 metres from that boundary, shall match the respective levels of the adjoining lots to the west and east, at their boundaries with the site.
(v) Vehicular parking, manoeuvring and circulation areas indicated on the approved plans being sealed and drained to the satisfaction of the City, the parking spaces being marked out and maintained in good repair.
(vi) The amalgamation of the subject Lots 6, 8 and 9 Scarborough Beach Road, Osborne Park is required prior to commencement of development.
(vii) The initial partitions between office and warehouse units not being altered without the written consent of the City first being obtained.
(viii) All land indicated as landscaped area on the approved plans being developed on practical completion of the building to the satisfaction of the City. All landscaped areas are to be maintained in good condition thereafter.
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- (ix) The street verge being landscaped and reticulated to the satisfaction of the City and maintained in good condition thereafter.
(x) A separate signage strategy is to be submitted to the City for approval prior to the issue of a Building Licence.
(xi) A stormwater drainage management plan for the site is to be formulated and implemented to ensure that at all times stormwater run-off is contained on site and appropriately directed for disposal to the satisfaction of the City.
(xii) Bin enclosures being screened by a feature brick wall, not less than 1.5 metres in height, constructed of the same bricks as the building. Adequate gates are to be provided.
(xiii) The facades of buildings being constructed of brick, stone or concrete or, in respect of that portion above 3.6 metres in height, such other material as may be approved by the City.
(xiv) Any on-site floodlights not being positioned or operated in such a manner as to cause annoyance to surrounding uses or passing traffic.
(xv) All off-street parking to be available on site for all employees and visitors, free of charge, to the satisfaction of the City.
(xvi) No goods or materials being stored, either temporarily or permanently, in the parking or landscaped areas or within access driveways. All goods and materials are to be stored within the buildings or storage yards, where provided.
DR 249 of 2008
1. The application for review is allowed.
2. The refusal by the respondent to allow the subdivision in the form of land amalgamation of Lots 6, 8 and 9 Scarborough Beach Road, Osborne Park is set aside and a decision is substituted that
- subdivision approval is granted for land amalgamation of Lots 6, 8 and 9 subject to the following conditions:
- (i) The approved subdivision (land amalgamation) is shown on Plan No 3042-3-001 dated 19 February 2008 drawn by Koltasz Smith.
(ii) All septic sewer systems including all tanks and pipes and associated drainage systems (soakwells or leach drains) and any stormwater disposal systems are to be decommissioned, removed, filled with clean sand and compacted. (City of Stirling)
(iii) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lot shown on the approved plan of subdivision. (Western Power)
(iv) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of suitable easements under s 167 of the Planning and Development Act 2005 (WA) for existing and/or future distribution (less than or equal to 33,000 volts) electricity network infrastructure. (Western Power)
(v) The provision of easements for existing or future water, sewerage and/or drainage infrastructure as may be required by the Water Corporation being granted free of cost to that body. (Water Corporation)
- I certify that this and the preceding [78] 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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