Nightview Pty Ltd and City of Cockburn
[2005] WASAT 275
•11 OCTOBER 2005
NIGHTVIEW PTY LTD and CITY OF COCKBURN [2005] WASAT 275
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 275 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:441/2005 | 13 JULY 2005 | |
| Coram: | MR J JORDAN (MEMBER) | 11/10/05 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application granted time limited approval | ||
| B | |||
| PDF Version |
| Parties: | NIGHTVIEW PTY LTD CITY OF COCKBURN |
Catchwords: | Deemed refusal Conversion of former service station to a liquor store Relocation of liquor store from position at neighbouring shopping centre Development (DA7) zoning Enquiry by Design Scenario 3 Requirement for structure plan Timing of preparation and implementation of structure plan Difficulties of strata ownership Relocation of primary school New town centre Certainty of conditions Time limited approval |
Legislation: | Strata Titles Act 1985 (WA), s 30 Town Planning and Development Act 1928 (WA) |
Case References: | Kalgrains Pty Ltd v City of Swan [2004] WATPAT 134 Kentucky Fried Chicken Pty Ltd and Gantidis and Anor High Court of Australia [1997 1978 140 CLR] Nil |
Orders | The application is approved subject to the following conditions:,1. Development may be carried out only in accordance with the terms of the application as approved herein and any approved plan.,2. Nothing in the approval or these conditions shall excuse compliance with all relevant written laws in the commencement and carrying out of development.,3. The plans are amended to delete the storage and pallet yard from the rightofcarriageway easement on the land.,4. The premises shall be kept in a neat and tidy condition at all times by the owner/occupier to the satisfaction of the Council.,5. A plan or description of all signs for the proposed development (including signs painted on a building) shall be submitted to and approved by the Council as a separate application. The application (including detailed plans) and appropriate fee for a sign licence must be submitted to the Council prior to the erection of any signage on the site/building.,6. No bunting is to be erected on the site (bunting includes streamers, streamer strips, banner strips or decorations of similar kind).,7. The landscaping installed in accordance with the approved detailed landscape plan must be reticulated or irrigated and maintained to the satisfaction of the Council.,8. No wall, fence or landscaping greater than 0.75 metres in height measured from the natural ground level at the boundary shall be constructed within 2.1 metres of a vehicular accessway unless the wall, fence or landscaping is constructed with a 3.0 metre truncation as depicted on the approved plan.,9. All stormwater shall be contained and disposed of onsite to the satisfaction of the Council.,10. Refuse bins shall be provided adequate to service the development and the bins are to be screened from view to the satisfaction of the Council before the development is occupied or used.,11. The vehicle parking area shall be sealed, kerbed, drained and line marked in accordance with the specifications and approved revised plans marked in red certified by a suitably qualified practising engineer to the satisfaction of the Council.,12. Works depicted on the approved parking plan shall be maintained to the satisfaction of the Council.,13. Car bay grades are not to exceed six per cent and disabled car bays are to have a maximum grade of 2.5 per cent.,14. A minimum of one disabled car bay designed in accordance with Australian Standard 2890.1 1993 is to be provided in a location convenient to and connected to a continuous accessible path to the main entrance of the building or facility. Design and signage of the bay and path is to be in accordance with Australian Standard 1428.1 1993. Detailed plans and specifications illustrating the means of compliance with this condition are to be submitted prior to the occupation of the site.,15. Notwithstanding the detailed specifications required to be submitted for a building licence approval, a separate schedule of the colour and texture of the building materials shall be submitted and approved to the satisfaction of the Council prior to the occupation of the site and before the commencement or carrying out of any work or use authorised by this approval.,16. Landscaping and tree planting shall be undertaken in accordance with the approved plan prior to the occupation of the site.,17. A landscape plan must be submitted to the Council and approved prior to the occupation of the site and shall include the following:,(a) The location, number and type of existing and proposed trees and shrubs including calculations for the landscaping area being in conformity with the City of Cockburn Greening Plan;,(b) Any lawns to be established;,(c) Any natural landscape areas to be retained;,(d) Those areas to be reticulated or irrigated; and,(e) Verge treatments.,18. Landscaping is to be undertaken in the street verge adjacent to the lot in accordance with the approved plans and be established prior to the occupation of the site, and thereafter maintained to Council's satisfaction.,19. Prior to the commencement of development, the developer shall prepare and have approved a 'Soil Contamination Assessment' of the site, where any contamination must be identified, removed and validated as part of civil works in consultation with the Department of Environment Contaminated Sites Branch to the satisfaction of the Council.,20. This approval relates to a liquor store only and does not include a drive through facility.,21. This approval authorises the use of the premises as a liquor store to be carried on for a period of seven years from the date of this order only. A fresh application for planning approval must be lodged and approved prior to the continuation of the use for a period in excess of the seven years herein approved.,22. It is a condition precedent to the commencement of any development work or use of the site that the owner of Lot 2 obtain from the owners of Strata Plan 21160 and have registered against that Strata Plan a rightofcarriageway easement sufficient to enable access to and aggress from car bays 13 to 21 over Strata Plan 21160 to the satisfaction of the City. The City shall be a party to the easement so that it cannot be surrendered without the City's consent. The easement shall be prepared and registered by the City's solicitors at the cost of the developer.,23. If the development the subject of this approval is not substantially commenced within a period of two years after the date of this order, the approval shall lapse and be of no further effect. Where an approval has so lapsed, no development shall be carried out without the further approval of the Council having first been sought and obtained. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : NIGHTVIEW PTY LTD and CITY OF COCKBURN [2005] WASAT 275 MEMBER : MR J JORDAN (MEMBER) HEARD : 13 JULY 2005 DELIVERED : 11 OCTOBER 2005 FILE NO/S : DR 441 of 2005 BETWEEN : NIGHTVIEW PTY LTD
- Applicant
AND
CITY OF COCKBURN
Respondent
Catchwords:
Deemed refusal Conversion of former service station to a liquor store Relocation of liquor store from position at neighbouring shopping centre Development (DA7) zoning Enquiry by Design Scenario 3 Requirement for structure plan Timing of preparation and implementation of structure plan Difficulties of strata ownership Relocation of primary school New town centre Certainty of conditions Time limited approval
(Page 2)
Legislation:
Strata Titles Act 1985 (WA), s 30
Town Planning and Development Act 1928 (WA)
Result:
Application granted time limited approval
Category: B
Representation:
Counsel:
Applicant : Mr Michael Hotchkin
Respondent : Mr Craig Slarke
Solicitors:
Applicant : Hotchkin Hanley
Respondent : McLeods
Case(s) referred to in decision(s):
Kalgrains Pty Ltd v City of Swan [2004] WATPAT 134
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Case(s) also cited:
Nil
(Page 3)
Summary of decision
1 Nightview Pty Ltd is seeking planning approval for the redevelopment of a disused service station into a liquor store, which will be on its own lot, in the Coolbellup Town Centre. The town centre also includes respectively on three other lots a hotel, commercial buildings and a shopping centre. The shopping centre and commercial buildings are subject to strata titles.
2 The applicant would relocate its liquor store from the neighbouring shopping centre building into the redeveloped building.
3 There is no dispute that the town centre is in need of redevelopment because it is poorly arranged and does not function effectively. The City of Cockburn conducted an Enquiry by Design with the community in 2003 to consider the future of the town centre. The City resolved to adopt scenario 3 from the Enquiry which requires the closure of the neighbouring Koorilla Primary School, the construction of a new primary school on Len Packham Reserve adjoining the town centre, relocation of the hotel, shops and commercial buildings to a new centre on the Koorilla site and the redevelopment of the current town centre for medium density residential. The City does not yet have a structure plan or strategy to implement scenario 3.
4 The City is opposed to the redevelopment of the former service station as a liquor store as it considers this will prejudice the implementation of scenario 3, which it argues could commence within the next 12 months to two years.
5 Nightview Pty Ltd believes its development should be allowed to proceed as the current "Development" zoning allows for an integrated mix of uses including retail. In addition, the use conducted in the short term will not prejudice scenario 3 because structure planning for scenario 3 has not yet commenced and will likely take five years or more to implement because of the complications arising from the property ownership in the town centre.
6 Nightview Pty Ltd has expressed an intention to cooperate with the City when the implementation of scenario 3 has advanced to the stage where businesses can be relocated to the new centre on the Koorilla site.
(Page 4)
7 The Tribunal has concluded that the applicant's assessment of the likely timing of the implementation of scenario 3 is more likely and that the short term use of the former service station as a liquor store in the interim is unlikely of itself to prejudice that implementation. A conditional approval of the liquor store development has therefore been granted.
8 The Tribunal appreciates the potential direction of planning in this centre will become more apparent once the respondent has actually commenced the structure planning process. One of the conditions imposed is that the use of the site as a liquor store is for seven years. This condition is not one normally imposed on a development of this type but is considered appropriate in the quite particular planning circumstances of the Coolbellup centre. The condition is also considered consistent with the applicant's explanation of the extent of investment required and its comments on involvement with future stages of scenario 3. This time will enable an assessment to be made of opportunities for relocation and the suitability of the site for a use more consistent with any redevelopment that might by then be occurring in the town centre under scenario 3.
Application
9 This is an application by Nightview Pty Ltd (applicant) against the deemed refusal by the City of Cockburn (respondent) of an application for planning approval to redevelop a disused service station into a liquor store at Lot 2 Coolbellup Avenue, Coolbellup.
The subject land and town centre lots
10 The subject land is Lot 2 on diagram 34240, volume 1978, folio 772. The frontage to Coolbellup Avenue is 37.22 metres and it has the same depth with an area of 1385 square metres. The building on the land is a typical service station, now unused, with office and adjacent workshop and a canopy extending from the front of the building.
11 The subject land is one of four lots which make up the Coolbellup Town Centre (town centre). The town centre is bounded to the north by Waverley Road, to the west by Coolbellup Avenue, and the south by Cordelia Avenue. To the east is the Len Packham Reserve which is an area of open space with recreational facilities and a community centre.
12 The northernmost lot of the town centre is Lot 1 of 1.1776 hectares on the corner of Waverley Road and Coolbellup Avenue. It contains the Coolbellup Hotel, which comprises a building with bars, lounges and
(Page 5)
- reception areas and, at the northern side of the building a drivethrough bottle shop. A separate structure at the southern edge of the lot comprises motel units.
13 Adjacent to the south is Lot 101 of 3552 square metres which is subject to strata plan 26173. This lot has frontage to Coolbellup Avenue and has freestanding commercial buildings in an L configuration which include a fast food outlet.
14 Adjacent to the southern boundary of Lot 101 are both the subject land and Lot 3, the fourth lot. Lot 3 is the subject of strata plan 21160 (shopping centre lot) and is 1.4919 hectares. It extends from the rear and south of the subject land with frontage to both Coolbellup Avenue and Cordelia Avenue. At the north-eastern corner of the shopping centre lot is a freestanding commercial strata building and at the southwest corner is a free-standing strata medical centre. Extending from the rear of the subject land to the southern boundary is a shopping centre with an internal arcade, retail, commercial and consulting businesses subdivided into about 29 strata titles. The buildings on all four lots in the town centre are surrounded by bitumen parking areas.
15 To note is that, endorsed on the Certificate of Title of the subject land, is a rightofcarriageway 6.5 metres wide across the rear of the subject land in favour of the City of Cockburn. This rightofcarriageway is used for vehicle access between the parking areas of Lot 101 and the shopping centre lot. The subject land has the benefit of a rightofcarriageway over Lot 101 of between 12.5 metres and 7.0 metres width for the full length of the northern boundary, and over the shopping centre lot 9.05 metres wide for 17.5 metres of the southern boundary from Coolbellup Avenue.
Proposed development
16 It is proposed to convert the former service station building on the subject land into a liquor store. The area under the canopy would be built in adding a further 106 square metres to the existing floor space of 169.4 square metres. The floor space under the former canopy would become a display and sales area, while the existing building would be converted into a storage area, office and cool room. A storage and service yard to be added at the rear of the building extended across the rightofcarriageway on the subject land in the initial application. At the hearing, a sketch marked "Option A" was proposed which showed how the storage and service yard could be reduced to be clear of the rightofcarriageway.
(Page 6)
17 The application showed six parking bays provided at the front of the building, eight bays adjacent to the southern wall with a further nine bays at the rear. Access to the bays at the rear and to the south would require vehicles to make use of the rightofcarriageway on neighbouring properties.
18 The applicant would relocate its existing liquor store from the southern end of the shopping centre building into the redeveloped building.
Planning framework
19 In March 2004, Amendment No 10 to the respondent's Town Planning Scheme No 3 (TPS 3) rezoned the four lots of the town centre, the area containing the community centre and an adjacent portion of Len Packham Reserve from "Local Centre", "Public Purpose Civic" and "Recreation" respectively to "Development".
20 Clause 4.2(i) of TPS 3 gives the objective for the "Development" zone as:
"To provide for future residential, industrial or commercial development in accordance with a comprehensive structure plan prepared under the scheme."
21 In Table 1 Zoning Table of TPS 3, no uses are listed in the column under "Development" zone. There is a reference to Note 3, which states:
"Development and use of land is to be in accordance with an approved structure plan prepared and adopted under clause 6.2.5."
22 Amendment 10 designated this "Development" zone as "Development Area DA7" and inserted into Schedule 11 Development Areas of TPS 3 for DA7, the following provisions:
"1. An approved structure plan together with all approved amendments shall apply to the land in order to guide subdivision and development.
2. To provide for an integrated town centre with a mix of residential, commercial, recreation, community and education facilities, in accordance with an approved structure plan."
(Page 7)
23 Clause 4.4.2 of TPS 3 states that Council may determine whether such a use is consistent with the objectives of the "Development" zone.
24 Clause 6.2.5 refers to the preparation of structure plans by either a local government or an owner. It also states at cl 6.2.5.2 that:
"A proposed structure plan may be prepared for all, or part of, a development area."
25 A further clause that refers to structure plans is cl 6.2.2.1 which states that:
"The purposes of Development Areas are to:
(a) identify areas requiring comprehensive planning;
and
(b) coordinate subdivision and development in areas requiring comprehensive planning."
27 Clause 6.2.4 "Structure Plan Required" states:
"6.2.4.1 The local government is not to:
(a) consider recommending subdivision; or
(b) approve development
of land within a development area unless there is a structure plan for the development area or for the relevant part of the development area."
28 The applicant pointed out and the respondent also noted the exception provided in TPS 3 at cl 6.2.4.2, which states:
"Notwithstanding clause 6.2.4.1, a local government may recommend subdivision or approve the development of land within a development area prior to a structure plan coming into effect in relation to that land, if the local government is satisfied that this will not prejudice the specific purposes and requirements of the development area."
(Page 8)
29 Clause 10.6.1 of TPS 3 states:
"Where a local government grants planning approval, the local government may impose conditions limiting the period of time for which the approval is granted."
30 Relevant in the consideration of this matter is the outcome of the Coolbellup Enquiry by Design Workshop conducted in September 2003 by the respondent and the Western Australian Planning Commission, the Department of Housing and Works and the Department of Education and Training. This was attended by persons with an interest in the town centre and particularly local property and business owners. The workshop developed five different "scenarios" for the revitalisation of the Town centre. Scenario 3 is summarised as:
"• New retail centre located on the Koorilla Primary School site
• New tavern on the Koorilla Primary School site
• New residential development of approximately 78 80 residential lots (at R30)
- Consequence
• Dependent on the location of the new primary school on the Len Packham Reserve rather than the Koorilla Primary School site
• Potential to significantly improve the drawing power of the centre
• Substantial possible boost to property values".
Applicant's position
32 Mr Greg Rowe, an experienced town planner who appeared as a witness for the applicant, argued that the proposed development could be allowed because it was provided for in the existing planning controls. Schedule 11, which was amended by amendment No 10 as recently as March 2004, sets out at 2 that in the current location of the town centre,
(Page 9)
- Development Area DA7 is to provide for an integrated town centre with a mix of residential, commercial, recreation, community and education facilities. He argued that the relocation of the existing liquor store and the use of the building for this use would not prejudice this purpose. Mr Rowe said the proposed use was also consistent with the 1999 Coolbellup Master Plan which shows commercial on the subject land.
33 Mr Rowe acknowledged that Sch 11 and other related clauses in TPS 3 refer to preparation of a structure plan to coordinate and guide development in areas requiring comprehensive planning. He submitted that, however, the preparation of a structure plan was not mandatory, referring to cl 6.2.5.2, and that there is the exception available under cl 6.2.4.2, which states:
"Notwithstanding clause 6.2.4.1, a local government may recommend subdivision or approve the development of land within a development area prior to a structure plan coming into effect in relation to that land, if the local government is satisfied that this will not prejudice the specific purposes and requirements of the development area."
34 In addition to the proposed development not prejudicing the "Development" zone, Mr Rowe argued that the proposed development can also be treated as an exception under cl 6.2.4.2 because, although there is no mention of scenario 3 in TPS 3, it would not prejudice the preparation of a structure plan based on scenario 3.
35 Mr Hodgkin submitted that scenario 3 could not at this stage be a relevant consideration because it is not a seriously entertained planning proposal given the uncertainty of its implementation and the time it would be likely to take if it were to be implemented. No structure plan and no strategy for the implementation of scenario 3 have been drafted. No agreements have been reached with the strata title owners on a mechanism by which scenario 3 is going to be implemented. In this regard, Mr Hodgkin drew attention to s 30 of the Strata Titles Act 1985 (WA) which requires unanimous consent of all strata owners for the termination of a strata scheme.
36 Mr Rowe strongly expressed the view that, from his experience, it is fanciful to expect that work might commence on the new shopping centre in two years, as suggested by the respondent. This was because of the difficulties of dealing with some 40 strata owners and business operators.
(Page 10)
- Achieving the level of cooperation required to build a new centre, allocate space and cancel existing strata agreements and redevelop the existing town centre would, in his estimation, most likely take five years or even 10 years. More certainty was required for such a proposal to be considered as seriously entertained.
37 Mr Hodgkin also pointed out that Mr Blood, a witness for the respondent was unable to identify a prospective developer for the proposed shopping centre site and had also indicated that if agreement was not reached with the owners and the Education Department was not satisfied within 12 months that scenario 3 could be implemented, then scenario 3 will not proceed.
38 Mr Rowe acknowledged that scenario 3 does not contemplate the existing building remaining on the subject land, but said the proposed development would improve short term amenity without compromising long term planning objectives because of the cooperative approach of the applicant. In this regard, he referred to the planning officer's recommendation in the report to the respondent that the application be granted conditional approval.
39 Mr Hodgkin called five witnesses for the applicant who were the operators of businesses in the DA7 zone, most being in the shopping centre building. From the examination and crossexamination of these witnesses, it became clear that each either attended the Enquiry by Design workshop or knew of it, and each supported scenario 3. Each also was supportive of the applicant's proposed redevelopment of the vacant service station into a liquor store, mainly on the basis that it would tidy up the site and provide a better entrance to the shopping centre from that direction than now exists. Each also indicated that they would wish to see what mechanism is proposed for the relocation of their businesses to the new centre. Mr Martin Dawkins made the comment that he was of the belief that the implementation of scenario 3 could take seven to ten years and this was too long to leave the former service station derelict, notwithstanding that he had supported scenario 3.
40 Mr Anthony Buhagiar, a principal of the applicant, gave evidence that in addition to the advised $250 000 for building work and basic fit out, additional expenditure would be required to purchase the land and equipment such as a fork lift and 'point of sale' and for work on the parking area. He acknowledged the investment would be substantial. When examined, he said it would take about five years to recoup the investment in the proposed use, but it was not as simple as that because it
(Page 11)
- was a factor that the subject land would have value as residential land in scenario 3. Mr Buhagiar would consider relocation but would need to know details of the new shopping centre. He did not think, however, that scenario 3 was going to happen in the short term and he should be allowed to complete his development.
41 Mr Buhagiar expressed the view that, while the proposed development would take some custom from the existing drive through bottle shop, from his experience in hotel and bottle shop management, a liquor store such as proposed without the convenience of a drive through would cater to a different type of customer. The proposed use, in his opinion, would attract weekly shoppers and new customers attracted to the destination by choice and specials.
Respondent's position
42 Mr Slarke, for the respondent, argued that the clear intent of the relevant scheme provisions is that, within Development Area DA7, any development was required to be in accordance with a structure plan. The exception in cl 6.4.2 doesn't change the fact that the starting point is that a structure plan is required. The reason for that, he said, is to prevent the desired outcome for the development area from being prejudiced by ad hoc development, such as the proposed development.
43 The evidence of Ms Denise Morgan, an experienced town planner appearing for the respondent, was that a liquor store is a use that you would want in a town centre, but in terms of the objective of an integrated town centre under Development Area DA7, the proposed development does not contribute at all because it just maintains the existing relationship between uses in the zone, and does not correct the problems associated with the existing dispersal of buildings and uses.
44 In addition, Mr Slarke submitted that it is clear beyond any reasonable doubt that scenario 3 is, in and of itself, a seriously entertained planning proposal. It was advertised, reviewed by the respondent and adopted. The Minister for Education and Training decided in May 2005 that the school is going to be relocated to Len Packham Reserve and the Koorilla site is going to become available. Mr Blood advised that at the same meeting where this development application was deferred, the respondent resolved to prepare a brief for consultants that includes consultation with landowners and tenants to develop an implementation strategy for scenario 3.
(Page 12)
45 Mr Slarke said it is known basically what the structure plan is going to say because it is known what scenario 3 proposes. The proposed development is inconsistent with scenario 3 which proposes to get rid of the building which the applicant wishes to renovate and extend and for the land to be used for residential purposes.
46 Mr Alan Blood, a planning officer with the respondent, said the new centre is likely to be smaller than the existing centre, as about 30 per cent of the current 3500 square metres is vacant. The new centre would not accommodate every landowner so the strategy would need to accommodate this. Mr Blood did not know what mechanisms would be found to be possible for the relocation of the existing shopping centre to the Koorilla site. Discussed were whether it would be a proprietary company with the current owners possibly having equity or another separate developer or a joint operation by the existing owners, although he believed this to be most unlikely. Any other possibilities would also be explored. A further option would be a resumptive scheme, but the respondent is very reluctant to become the owner. This may only happen if the respondent was able to find a bona fide shopping centre developer who had the expertise to develop the new site.
47 Mr Blood is of the view that scenario 3 can be implemented in two to five years, given shopkeepers and landowners already have a wide knowledge of the proposal and the revitalisation effect it would have as the best option. He did acknowledge, however, that this timetable for construction was a "best guess", not having made any analysis of the steps necessary.
48 Mr Blood strongly expressed the opinion that there is a "window of opportunity" over the next 12 months for a decision to be made on the relocation of the shopping centre to the Koorilla site. The school is to be relocated to the Len Packham Reserve site within the next 12 months, which leads to agreement having to be reached with landowners and tenants in respect of scenario 3 within 12 months. If that does not occur, then the opportunity to relocate the shopping centre to the Koorilla site could, in his view, be "lost forever". This is because he believes the Department of Education and Training will want to have the Koorilla site redeveloped once it is vacant, and if no commitment is given for the relocation of the shopping centre, then the school land may be developed for density housing or for aged persons. Mr Blood remained optimistic that the structure plan could be devised, passed and implemented, but it was necessary to be able to give the Education Department a commitment
(Page 13)
- within 12 months. He said the next stage of the process is critical therefore there is a "limbo" situation for the next 12 months.
49 Mr Slarke submitted that it is at least reasonable for there to be a moratorium on development for that period to enable planning to go forward without unnecessarily complicating what is already a very difficult process. The moratorium is not just reliant on a policy, it is reliant upon the provisions of TPS 3 which provide a clear assumption that there shall be a structure plan.
50 Ms Morgan and Mr Blood, expressed the opinion that the considerable investment involved in establishing the proposed use would make it more difficult to guarantee the relocation of the liquor store from the subject land to the new shopping centre proposed under scenario 3, particularly in the short term. Ms Morgan did not consider the proposed development would lift the profile and appearance of the shopping centre because the building is simply a box with mainly blank walls.
51 The Tribunal accepted a submission from Ms Julie Wragg, the manager of the Coolbellup Hotel. Ms Wragg provided some evidence on the returns to the hotel from the drive through bottle shop and Mr Slarke provided comment on use made by community groups of the reception rooms and lounges.
52 The respondent said the competition from the better placed bottle shop would affect the hotel profit margins. This, in turn, might place in jeopardy the facilities used by the community groups and the proposed development did not provide for the replacement of these.
53 The respondent called as a witness Mr Steven Lee, the Mayor of the City of Cockburn. Mr Lee expressed the view that it is vital owners be given a positive message that the respondent is "dinkum about the redevelopment and how we want it to occur". It is the respondent's intention to make the centre the heart of Coolbellup. In implementing scenario 3, Mr Lee was of the view that it would work best with the agreement of all stakeholders in the town centre. He believed that, if this cooperation could be achieved, it would be preferable to having a resumptive scheme.
54 It was the respondent's contention that refusing the application does not prevent the applicant's existing liquor store in the shopping centre from continuing to operate, and it would not be orderly and proper planning to allow for development of this type to go ahead when the structure planning process is imminent.
(Page 14)
Discussion
55 There was no dispute between the parties that scenario 3 would provide a planning outcome that would address the problems of the town centre. There was also no dispute that the proposed development was not consistent with scenario 3 which showed R30 residential development on the town centre lots and the relocation to the Koorilla site of the tavern, commercial and retail uses.
56 With regard to time within which scenario 3 will become a strategic plan and be implemented, this was not certain from the evidence presented. The respondent has resolved to adopt scenario 3 and resolved to prepare a brief for the engagement of consultants to prepare a strategy. The consultants are yet to be engaged. While a majority of property owners in the town centre have indicated support for scenario 3, including the applicant, none have yet been engaged in any discussion with the respondent on what form the strategy will ultimately take or on how it will be implemented. Those property owners who appeared as witnesses maintained their support for scenario 3, but all also said that they were waiting to see how it would affect them personally. Quite properly, the respondent has said it cannot make undertakings to particular individuals at this stage as to what space would be available to them in any new shopping centre.
57 This Tribunal is inclined to the view that the respondent's estimation of the time for the preparation and adoption of a strategy and a program for its implementation is too optimistic and it is going to take at least the five years and probably longer, as suggested by Mr Rowe and the business owners. This is because of the multiple ownership structure of the existing town centre, recognised as a difficulty by both parties, the difficulty at this stage in identifying what type of entity will, in fact, be developing the new shopping centre and identifying a mechanism for resolving what will be competing claims for space in the new centre by the various existing owners.
58 In this regard, the Tribunal is of the view that the strategy and implementation plan that will flow from scenario 3 are not of themselves sufficiently advanced to be determinative of the matter. The Tribunal does not accept, however, that scenario 3 can be ignored, as submitted by the applicant as its primary position. Scenario 3 is relevant because of community background to its formulation, its adoption by the respondent and the steps that are now about to take place for its implementation, including the relocation of the Koorilla primary school. In the view of the
(Page 15)
- Tribunal, this makes the planning options more than mere possibilities and distinguishes the proposed development from cases such as Kalgrains Pty Ltd v City of Swan[2004] WATPAT 134, cited by the applicant. This was where development was allowed consistent with existing scheme provisions in the face of a study because no steps had been taken to advance that study.
59 This leads to the question of whether it is appropriate in the circumstances to put the development of the subject land on hold for an uncertain period of time until it is clear what form the strategy and its implementation will take. This, in turn, leads to consideration of whether the proposed development would have a negative impact sufficient to frustrate a strategy based on scenario 3, which was first chosen by the property owners and then adopted by the respondent.
60 An object of scenario 3 is to persuade all owners currently in the town centre to relocate businesses to the Koorilla site and to redevelop existing land in the existing centre for residential purposes. It is noted that most of the properties are operating businesses. The Tribunal is not persuaded that premises in the existing town centre should be required to remain vacant simply because it would be easier to persuade the owner of a vacant premises of the benefits of a strategy based on scenario 3. This applies also to the subject land. Mr Blood acknowledged that it was not open to the Council to stop an owner leasing premises within the shopping centre. Property owners in the town centre would not want to have to suffer vacant premises and so, even with the knowledge of scenario 3, they are willing to commence businesses, as with the subject land.
61 The proposed development, however, is more than simply a new use in vacant premises. The applicant is going to invest a significant amount of money in extending the building and making it fit for use as a liquor store. If this development will frustrate the implementation of any future strategy, it falls foul of the exception cl 6.2.4.2.
62 The applicant has recognised that there is a likelihood, although not in the short term, of a structure plan being put in place. It has expressed a desire to cooperate and has suggested a draft condition of approval that at least would initiate discussion between the parties at the time relocation of commercial premises to the Koorilla site can be contemplated. In this regard, it would not simply be a matter of a use having to cease operating, as there is potential for it to relocate and continue operating.
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63 The redevelopment of the Coolbellup centre is a further step in what is otherwise acknowledged as a successful revitalisation of a whole suburb. Coolbellup Town Centre is recognised as a centre with difficult planning problems. This has resulted in the bold solution of scenario 3 adopted by the respondent. While it is a sound planning objective to continue with this process, the Tribunal is concerned that because of the uncertainty with timing there should not in the meantime be what amounts to a moratorium of unknown length on the use of premises in the town centre. Given the applicant's awareness of scenario 3 and its evidence that the investment in the proposed development is being made on the assumption that it's going to take about five or 10 years for the outcomes of scenario 3 to become apparent, the Tribunal is minded to allow the proposed development, but subject to a condition that will facilitate the applicant addressing the implementation of the strategy eventually adopted for the redevelopment of the town centre.
64 Before considering conditions, it is appropriate to mention the respondent's submission in respect of the impact of the proposed use on the provision of community facilities by the Coolbellup Hotel. The evidence provided on precisely what the facilities were and the significance of the use was limited. Mr Hodgkin took the Tribunal to the tests to be applied set out in Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675. In this instance, the evidence was simply not sufficiently comprehensive or persuasive for any meaningful conclusion to be drawn as to the effect on community facilities of the potential competition between the existing drive through bottle shop and the relocated bottle shop of the applicant.
Conditions of approval
65 As ordered by the Tribunal, the respondent provided a draft set of conditions, without prejudice to its position in the matter, which it considered should be imposed, were the Tribunal minded to approve the application. Of the 22 conditions, condition 21 reads:
"This approval authorises use of the premises as a liquor store to be carried on for a period of 2 years from the date of this approval only. A fresh application for planning approval must be lodged and approved prior to the continuation of the use for a period in excess of 2 years herein approved."
66 Mr Buhagiar for the applicant said there was no objection to the conditions listed other than condition 21. He was strongly opposed to any time limit on an approval. He considered that a fresh application was time
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- consuming and costly and the outcome uncertain. He and Mr Rowe were also of the view that the implementation of the scenario 3 would take many more years than two, as indicated above.
67 Mr Hodgkin provided an alternative condition 21, which reads:
"This planning approval may be terminated by six months notice in writing from the City to the Applicant, which notice cannot be sent until the occurrence of the following matters:
(a) the Respondent obtains consents in writing, enforceable in law, from all owners and lessees of strata lots in the Town Centre to a relocation of their premises to a new site for a Town Centre or sufficient of them to reasonably require the Applicant to relocate; and
(b) the consent of the Applicant, which consent shall not be reasonably withheld, to relocation of the Applicant's premises for the same type of use, to a location reasonably proximate in size and exposure to that of the subject premises; and
(c) the availability of the new premises for commencement of trading to be provided within the six month period."
68 Mr Hotchkin gave a full explanation of how he would see this condition being applied given the applicant's cooperative approach. He referred to how the Supreme Court has held that where you have reasonableness as a precondition to the exercise of a power, then that is in itself an importation of objectivity that enables the Court to have regard to the circumstances to determine whether what is done is reasonable. Mr Hodgkin argued that a condition can be imposed that negotiations take place on a reasonable basis or that they take place in good faith and any condition of that kind is a condition that advances the position of the respondent beyond what it is at the moment with the existing owner of Lot 2 under no such obligation.
69 The respondent said it cannot deliver on a commitment of prominence in the new centre and if given to an individual landowner this would give concern to other landowners who are also willing to relocate. Any agreement to relocate by a tenant, including the applicant, would have to be totally unconditional until the implementation of scenario 3 is investigated and commitments made by owners and tenants.
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70 Mr Slarke submitted that the condition as proposed simply is not a valid or workable condition. Without a provision in the scheme which allows for revocation of a planning approval, it is impossible for a condition to itself give that power. He argued that you cannot have a condition where the revocation is conditional on the consent of the applicant. It is simply too imprecise and vague and it would be void for uncertainty. The respondent could not possibly prosecute successfully for a breach of this condition.
71 The Tribunal is persuaded to the view that the alternative condition suggested by the applicant is too uncertain to achieve any useful planning purpose.
72 While the applicant's objections are noted, the Tribunal is of the view that a condition which grants a time limited approval does have certainty. Such a condition is not normally imposed on a development of this type but is considered appropriate in the quite particular planning circumstances of the town centre. The time limit imposed must be consistent with the applicant's explanation of the returns on investment in the proposed use and its comments on cooperation in the future stages of scenario 3. The time limit imposed should also be sufficient to enable an assessment to be made of opportunities for relocation and the suitability of the site for a use more consistent with any redevelopment that might by then be occurring in the town centre under scenario 3.
73 From the deliberations on the particular circumstances of this matter, the Tribunal has decided to impose a condition limiting the period of time for which the approval is granted to seven years, as provided for under cl 10.6.1 of TPS 3.
Orders
74 The application is approved subject to the following conditions:
1. Development may be carried out only in accordance with the terms of the application as approved herein and any approved plan.
2. Nothing in the approval or these conditions shall excuse compliance with all relevant written laws in the commencement and carrying out of development.
3. The plans are amended to delete the storage and pallet yard from the rightofcarriageway easement on the land.
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- 4. The premises shall be kept in a neat and tidy condition at all times by the owner/occupier to the satisfaction of the Council.
5. A plan or description of all signs for the proposed development (including signs painted on a building) shall be submitted to and approved by the Council as a separate application. The application (including detailed plans) and appropriate fee for a sign licence must be submitted to the Council prior to the erection of any signage on the site/building.
6. No bunting is to be erected on the site (bunting includes streamers, streamer strips, banner strips or decorations of similar kind).
7. The landscaping installed in accordance with the approved detailed landscape plan must be reticulated or irrigated and maintained to the satisfaction of the Council.
8. No wall, fence or landscaping greater than 0.75 metres in height measured from the natural ground level at the boundary shall be constructed within 2.1 metres of a vehicular accessway unless the wall, fence or landscaping is constructed with a 3.0 metre truncation as depicted on the approved plan.
9. All stormwater shall be contained and disposed of onsite to the satisfaction of the Council.
10. Refuse bins shall be provided adequate to service the development and the bins are to be screened from view to the satisfaction of the Council before the development is occupied or used.
11. The vehicle parking area shall be sealed, kerbed, drained and line marked in accordance with the specifications and approved revised plans marked in red certified by a suitably qualified practising engineer to the satisfaction of the Council.
12. Works depicted on the approved parking plan shall be maintained to the satisfaction of the Council.
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- 13. Car bay grades are not to exceed six per cent and disabled car bays are to have a maximum grade of 2.5 per cent.
14. A minimum of one disabled car bay designed in accordance with Australian Standard 2890.1 1993 is to be provided in a location convenient to and connected to a continuous accessible path to the main entrance of the building or facility. Design and signage of the bay and path is to be in accordance with Australian Standard 1428.1 1993. Detailed plans and specifications illustrating the means of compliance with this condition are to be submitted prior to the occupation of the site.
15. Notwithstanding the detailed specifications required to be submitted for a building licence approval, a separate schedule of the colour and texture of the building materials shall be submitted and approved to the satisfaction of the Council prior to the occupation of the site and before the commencement or carrying out of any work or use authorised by this approval.
16. Landscaping and tree planting shall be undertaken in accordance with the approved plan prior to the occupation of the site.
17. A landscape plan must be submitted to the Council and approved prior to the occupation of the site and shall include the following:
(a) The location, number and type of existing and proposed trees and shrubs including calculations for the landscaping area being in conformity with the City of Cockburn Greening Plan;
(b) Any lawns to be established;
(c) Any natural landscape areas to be retained;
(d) Those areas to be reticulated or irrigated; and
(e) Verge treatments.
18. Landscaping is to be undertaken in the street verge adjacent to the lot in accordance with the approved plans
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- and be established prior to the occupation of the site, and thereafter maintained to Council's satisfaction.
- 19. Prior to the commencement of development, the developer shall prepare and have approved a 'Soil Contamination Assessment' of the site, where any contamination must be identified, removed and validated as part of civil works in consultation with the Department of Environment Contaminated Sites Branch to the satisfaction of the Council.
20. This approval relates to a liquor store only and does not include a drive through facility.
21. This approval authorises the use of the premises as a liquor store to be carried on for a period of seven years from the date of this order only. A fresh application for planning approval must be lodged and approved prior to the continuation of the use for a period in excess of the seven years herein approved.
22. It is a condition precedent to the commencement of any development work or use of the site that the owner of Lot 2 obtain from the owners of Strata Plan 21160 and have registered against that Strata Plan a rightofcarriageway easement sufficient to enable access to and aggress from car bays 13 to 21 over Strata Plan 21160 to the satisfaction of the City. The City shall be a party to the easement so that it cannot be surrendered without the City's consent. The easement shall be prepared and registered by the City's solicitors at the cost of the developer.
23. If the development the subject of this approval is not substantially commenced within a period of two years after the date of this order, the approval shall lapse and be of no further effect. Where an approval has so lapsed, no development shall be carried out without the further approval of the Council having first been sought and obtained.
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I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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