NUR Corporation Pty Ltd and City of Canning

[2008] WASAT 267

NUR CORPORATION PTY LTD and CITY OF CANNING [2008] WASAT 267

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 267
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:395/2007	Heard:	1 OCTOBER 2008
Coram:	MR L GRAHAM (SENIOR SESSIONAL MEMBER)	Delivered:	16/11/08
No of pages:	23	Judgment Part:	1 of 1
Result:	The application for review was dismissed
Category:	B
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Parties:	NUR CORPORATION PTY LTD CITY OF CANNING
Catchwords:	Town planning Application for development approval A proposal for offices, showrooms and a warehouse Self-storage units Design and visual amenity Security Adequacy of documentation accompanying the proposal Orderly and proper planning
Legislation:	Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) City of Canning Town Planning Scheme No 40, cl 2.3.8.1, cl 2.3.8.2, cl 2.3.8.3, cl 3, cl 4.2, cl 4.3.1, cl 4.4.2, Table 3
Case References:	Nil
Orders	The application for review is dismissed.
Summary	The application for review was lodged against a decision of the City of Canning to refuse a development proposal by NUR Corporation Pty Ltd for showrooms, offices and a warehouse (self-storage) facility at 26 Cecil Avenue, Cannington.,The Tribunal examined the respective arguments of the parties, the background to the proposal, the development concept, the legislative and policy provisions and matters relating specifically to the self­storage proposal in terms of its suitability within the Canning Regional Centre, its design and visual amenity, security issues and the adequacy of the documentation accompanying the proposal.,The Tribunal determined that the development of a three storey warehouse (self-storage) facility for 682 industrial storage units had not been justified, and had presented as an overpowering structure of some 80 metres long and 50 metres wide. ,The Tribunal suggested that an amended plan be prepared and progressed as a staged development, with an office/showroom proposal fronting Cecil Avenue proceeding in due course as Stage 1.,The application for review was dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : NUR CORPORATION PTY LTD and CITY OF CANNING [2008] WASAT 267 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : 1 OCTOBER 2008 DELIVERED : 17 NOVEMBER 2008 FILE NO/S : DR 395 of 2007 BETWEEN : NUR CORPORATION PTY LTD

Applicant

AND

CITY OF CANNING
Respondent

Catchwords:

Town planning - Application for development approval - A proposal for offices, showrooms and a warehouse - Self-storage units - Design and visual amenity - Security - Adequacy of documentation accompanying the proposal - Orderly and proper planning

Legislation:

Metropolitan Region Scheme

Planning and Development Act 2005 (WA), s 252(1)
City of Canning Town Planning Scheme No 40, cl 2.3.8.1, cl 2.3.8.2, cl 2.3.8.3, cl 3, cl 4.2, cl 4.3.1, cl 4.4.2, Table 3

(Page 2)

Result:

The application for review was dismissed

Category: B

Representation:

Counsel:

Applicant : Mr I Rogers
Respondent : Mr D McCleod

Solicitors:

Applicant : Hardy Bowen
Respondent : McLeods Barristers & Solicitors

Case(s) referred to in decision(s):

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The application for review was lodged against a decision of the City of Canning to refuse a development proposal by NUR Corporation Pty Ltd for showrooms, offices and a warehouse (self-storage) facility at 26 Cecil Avenue, Cannington.

2 The Tribunal examined the respective arguments of the parties, the background to the proposal, the development concept, the legislative and policy provisions and matters relating specifically to the self­storage proposal in terms of its suitability within the Canning Regional Centre, its design and visual amenity, security issues and the adequacy of the documentation accompanying the proposal.

3 The Tribunal determined that the development of a three storey warehouse (self-storage) facility for 682 industrial storage units had not been justified, and had presented as an overpowering structure of some 80 metres long and 50 metres wide.

4 The Tribunal suggested that an amended plan be prepared and progressed as a staged development, with an office/showroom proposal fronting Cecil Avenue proceeding in due course as Stage 1.

5 The application for review was dismissed.

Introduction

6 The application for review, dated 16 November 2007, was lodged by NUR Corporation Pty Ltd (applicant) against a decision of the City of Canning (respondent) on 26 October 2007 to refuse an application for development approval for proposed showrooms, offices and a warehouse (self-storage) at No 26 (Lot 3797) Cecil Avenue, Cannington.

7 The application for review was lodged under the provisions of s 252(1) of the Planning and Development Act 2005 (WA).

8 The reasons for refusal were:

1. The proposed self storage component of the development is in conflict with the orderly and proper planning of the locality and does not represent a use in keeping with the fulfilment of the objectives of the Canning Regional Centre Policies due to the use representing an under utilisation of the site and the building having an adverse impact on the visual and social amenity of the area.

(Page 4)

2. Vehicular access within and to the site is in conflict with the requirements of Town Planning Scheme 40 by virtue of insufficient segregation of access to the different components of the development and insufficient levels of access to the site having regard to the intensity of activities involved.

Subject land

9 The subject land, which is oriented north-west to south-east, can be described as Lot 3797 on Deposited Plan 190686 and can be found on Certificate of Title Volume 1970, Folio 818.

10 The area of the site is 1.4017 hectares with a southern frontage to Cecil Avenue (referred to as Cecil Road on the Certificate of Title) of 99.54 metres, a rear (north) boundary of 91.52 metres, a western boundary of 162.79 metres and an eastern boundary of 143.21 metres. There is a gentle downward slope from Cecil Avenue towards the north-west corner of the site and there is an 18­metre wide Western Power easement with high voltage power lines running through the property.

11 The subject land is vacant at the present time but there is evidence of sporadic 'fill'. There is a community centre (Communicare) on the adjoining land to the east, the Canning Community College to the north and a chemist on the adjoining land to the west fronting Cecil Avenue.

12 Directly opposite the subject land is a service station and an extensive open car parking area associated with the Carousel shopping complex. There is a right of way (ROW) adjoining the western boundary of the subject land along some three­quarters of its length.

Legislative and policy framework

13 The subject land is zoned 'Central City Area' in the Metropolitan Region Scheme and 'City Centre' in the City of Canning Town Planning Scheme No 40 (TPS 40 or Scheme).

14 Of relevance is a document titled 'City of Canning - Canning Regional Centre - Planning Policy' (Centre Policy) as adopted by Council on 14 February 1995.

Respondent's position

15 The position of the respondent is outlined in a statement of issues, facts and contentions. The respondent contends:

(Page 5)

a) The proposed development is not consistent with the objectives of cl 4.2 of TPS 40, and would not contribute towards creating a vibrant City Centre as envisaged by the Centre Policy.

b) The self­storage component of the proposed development does not meet any of the objectives in cl 3 of the Centre Policy.

c) While a warehouse use may be a discretionary use within the City Centre Zone, and although Council may consider certain types of warehouses as suitable (such as a factory­direct wholesaler open to the public), a self­storage facility tends to be industrial in nature, and not suitable for a City Centre zone.

d) The proposed self­storage facility is industrial in nature and would not be consistent with the visual amenity of the City Centre zone.

e) The underutilisation of the site, and the location of the storage facility to the rear of the site, gives little potential for passive surveillance to the benefit of the property, or for neighbouring properties.

f) The exposed rear of the building is likely to be subject to graffiti and vandalism.

Applicant's position

16 The position of the applicant is outlined in a statement of issues, facts and contentions dated 8 August 2008. The applicant contends:

a) The proposed showrooms and first and second floor offices fronting Cecil Avenue are in keeping with the intended future of Precinct 2 (Cecil). The Centre Policy for Precinct 2 makes reference to the consideration of 'commercial development with frontage to Cecil Avenue'.

b) The self-storage facility is appropriate in the location given the nature of surrounding uses and the intended future of the City Centre as a vibrant high density residential and commercial area. The surrounding uses included 'grouped' dwellings on Pattie Street and Fletcher Street as well as commercial uses, showroom, offices and retail fronting Cecil Avenue. The facility will provide

(Page 6)

much­needed storage space that may not have been adequately provided for within existing developments and will be behind the showroom and office building, thereby screening it from view of the public street.

c) It is expected that further medium and high density residential development will occur in the under­developed areas of the City Centre to the east of the subject site in the 'Morgan' and 'Station' precincts; thereby increasing demand for self-storage.

d) Notwithstanding the preferred uses for the 'Cecil' precinct, a warehouse use is an 'AA' use in the City Centre zone, and therefore able to be permitted. The 'preferred' use list does not necessarily mean that those uses not specifically mentioned are not appropriate for the area or site.

e) The Canning Regional Structure Plan notes that a mix of uses are encouraged.

f) There are a number of sites that include a warehouse use within the City Centre. A warehouse is not amongst the preferred uses within any of the precincts.

g) The respondent has previously approved an 'Aged and Dependant Persons Dwelling' use on the subject land. This use is not one of the 'preferred' uses in the 'Cecil' precinct.

h) The subject land is located on the precinct boundary. As the adjoining precinct is intended for commercial uses, the proposed uses are in keeping with those uses intended for the adjoining precinct.

i) On the design of the self-storage development, and as a result of mediation, the applicant has provided to the respondent improved elevations and possible colour schemes. The side and rear boundary walls are articulated and painted to provide for an interesting appearance which will complement the area.

(Page 7)

j) On the matter of security, the issue can easily be resolved by imposing conditions with respect to suitable fencing as well as requiring anti­graffiti coating over the parapet (boundary) walls.

k) The proposed development provides for 'caretaker accommodation'. The caretaker will, among other things, provide added security after hours.

l) The updated elevations for the self-storage development propose additional openings overlooking the car parking area. This will greatly increase passive surveillance.

m) The proposed uses and site layout attempt to maximise the use of the constrained site by concentrating those uses requiring street exposure at the front, and a use requiring less exposure behind the showrooms and offices.

n) The majority of the car parking is located on the rear portion of the site and within the easement, which is expected to ensure that there is people movement in this portion of the site.

Planning issues

17 The principal planning issues are:

a) Is the proposed development in accordance with orderly and proper planning?

b) Would the proposed self-storage facility be an appropriate use on the subject land; particularly in terms of the proper utilisation of the site, visual amenity, security and its location within the City Centre?

Assessment of the proposal

Background

18 The following background is relevant:

a) On 5 December 2006 an 'Application for Council's Development Approval' was lodged with the City for showrooms, offices and storage facilities on the subject land at an estimated cost (GST free) of $3M to be completed in twelve (12) months.

(Page 8)

b) The matter was considered at an Ordinary Meeting of Council on 23 October 2007 and formally refused on 26 October 2007 in accordance with [8] above.

c) An application for review, dated 16 November 2007, was lodged with the State Administrative Tribunal (Tribunal) on 19 November 2007.

d) At a directions hearing on 30 November 2007 the Tribunal ordered the parties to attend mediation on 11 December 2007.

e) At a further directions hearing on 27 June 2008 the matter was listed for hearing on 14 August 2008. The hearing did not proceed.

f) At a directions hearing on 26 August 2008 the six (6) issues listed in the respondent's 'Statement of Issues, Facts and Contentions' was reduced to three (3); namely, the suitability of the development for the location, the design of the development and security concerns. The matters of parking, traffic movement and access and boundary setbacks were considered to no longer be at issue.

g) The matter proceeded to hearing on 1 October 2008.

The proposed development

19 In the original application of 5 December 2006, an associated plan, dated 22 October 2005, shows three (3) separate buildings. The two three storey buildings fronting Cecil Avenue are proposed for the purpose of 'showroom' at the ground level, with the first and second storey levels proposed for 'office' use.

20 At the top of the western showroom/office building is a proposed caretaker's dwelling. The proposed three storey building behind the eastern showroom/office building is for self-storage, and is most appropriately classified as 'warehouse'.

21 The application depicts the showroom/office development as comprising a total 2,176 square metres (gross floor area) incorporating seven ground floor showrooms with individual storage and a total office area of 4,589 square metres (gross floor area) spread over two levels (first floor and second floor).

(Page 9)

22 The plans also show a three storey self-storage warehouse covering a ground area of 4,360 square metres and consisting of 1,037 storage units of varying sizes. The remaining site area comprises car parking with some modest landscaping.

23 On the matter of the relevant plans, they were described at hearing by Mr McLeod, counsel for the respondent, in this way:

In this case there have been numerous sets of plans lodged and discussed and resulted, at one time or another, in various modifications to the designs.

24 For the purposes of the Tribunal, the current plans include a site plan dated 25 August 2008 (Exhibit 10) together with various other plans notated at hearing as Exhibits 11 to 16.

25 The most current plans show a widening of the existing public ROW to impinge on the subject land and modifications to access arrangements, car parking and landscaping. The number of self-storage units have been reduced from 1,037 to 682.

Legislative and policy provisions

State Planning Policy 4.2 ­ Metropolitan Centres Policy (SPP 4.2)

26 The prime purpose of SPP 4.2 is to provide a broad regional planning framework to coordinate the location and development of retail and commercial activities in the metropolitan region.

27 Under cl 4.2.2 (Strategic Regional Centres (SRC)) it states:

Strategic Regional Centres will be promoted as the main metropolitan centres outside the Perth Central Area as major multi­purpose and employment centres containing a full range of regional shopping, offices, administrative, social, entertainment, recreational and community services.

28 The Cannington Strategic Regional Centre, within which the subject land falls, is one of eight SRC in the Perth Metropolitan Region.

Canning Regional Centre Planning Policies

29 The policy document, as adopted by Council in February 1995, states:

At present Canning has many of the important starting points for such a centre ­ strategic rail and highway connections, a major shopping centre, a location alongside the Canning River Regional Park, the regional

(Page 10)

headquarters of the Australian Taxation Office, and plenty of land for future expansion.

But the Centre lacks coherence, both physically and visually. The elements need to be tied together and a whole created from what is a rather disparate collection of pieces.

The Council has a vision for the Centre ­ that it should become a vital, magnetic city centre, not merely servicing the basic needs but also capturing the imagination and pride of a quarter of a million people in its catchment …

30 The objectives for the Centre include:

(1) A major centre of employment within the Region.

(2) A highly diverse centre, providing the widest possible range of community and commercial facilities for the benefit of the community served by it.

…

(5) A wide range of choice and opportunities for business within the Centre.

…

(15) A high standard of public and private building design within the Centre.

…

31 Within the Centre there are 13 Precincts. The subject land falls within Precinct 2 (Cecil) and the 'preferred' uses are listed in Table 1. These include education, recreation and community purposes (including social, welfare, cultural and health).

32 The 'description' of Precinct 2 states:

Precinct 2 consists mostly of Crown land, to the north of Cecil Avenue, and is developed with a range of community facilities. It includes the Cannington Primary School, Cannington Senior High School, the sporting fields of Coker Park, the Ern Clark Athletic Centre, and some comparatively new community facility buildings.

33 The 'intended future' for Precinct 2 states:

The Council's aim is to foster development of a regional education complex in this precinct which may provide for both public and private educational facilities. Other potential uses include a range of complementary community facilities and services.

(Page 11)

34 Amongst the policies for Precinct 2 is a strong educational and community services bias but the policies also include:

Consider commercial development with frontage to Cecil Avenue up to Carousel Road.

35 Of relevance is Precinct 9 (Leila), immediately to the west of Precinct 2 and the subject land. The preferred uses are offices, showrooms, residential and service industry.

City of Canning Town Planning Scheme No 40

36 Matters relating to the Canning City Centre Development are specifically addressed under Part IV of the Scheme.

37 The purpose and intent of the City Centre zone, into which the subject land falls, is set out in cl 4.3.1:

To provide for a range of retail, commercial, institutional and residential activities within the area designated as the Canning City Centre, generally in accordance with the proposals contained in the Canning Regional Centre Structure Plan.

38 Under cl 4.4.2 it states:

Development within the City Centre shall generally be consistent with the provisions of the Canning Regional Centre Structure Plan …

39 Under the Zoning Table (Table 3) a showroom, office and warehouse use are all listed with the symbol 'AA' in the City Centre zone, whereas a caretaker's dwelling has the 'IP' symbol. These four uses are all contemplated in the development proposal.

40 An 'AA' symbol means that the use is not permitted unless approval is granted by the Council, whilst an 'IP' symbol means that the use is not permitted unless determined by Council to be incidental to the predominant use.

41 The matters to be considered by Council when exercising discretion include:

2.3.8.1 The Council when considering an application for Development Approval shall where its discretionary power permits have due regard to the following:

(Page 12)

(a) interests of orderly and proper planning and the preservation of the amenity of the relevant locality;

(b) any relevant submissions by the applicant; and

(c) any planning policy adopted in accordance with Clause 2.7.12.

2.3.8.2 The Council when considering an application for Development Approval may have due regard to the following:

(a) any policy adopted by the Council but not published or otherwise made available to the public by means additional to its inclusion in the Council's Minutes, prior to the receipt by the Council of the application under consideration;

(b) any policy of the Commission or its predecessors or any planning policy adopted by the Government of the State of Western Australia;

(c) any relevant proposed new town planning scheme of the Council or amendment or proposed Metropolitan Region Scheme Amendment insofar as they can be regarded as seriously entertained planning proposals;

(d) the comments or wishes of any public or municipal authority;

(e) the comments or wishes of any objectors to or supporters of the application;

(f) any previous decision made by the Council in circumstances which are sufficiently similar for the previous decision to be relevant as a precedent, provided that the Council shall not be bound by such precedent; and

(g) any other matter which in the opinion of the Council is relevant.


2.3.8.3 In addition to the matters referred to in the preceding paragraphs of this subclause, the Council when considering whether or not to approve an 'SA' or an 'AA' use application shall have due regard to the following (whether or not by implication or otherwise they might have required consideration under the preceding paragraphs of this subclause):

(a) the nature of the proposed use and its relationship to the use of other land within the locality;

(Page 13)

(b) the size, shape and character of the parcel of land to which the application relates and the nature and siting of any proposed building, the view from the building and any possible interruption of the existing view from other buildings or land in the locality;

(c) the nature of the roads giving access to the subject land;

(d) the parking facilities available or proposed and the likely requirements for parking, arising from the proposed development;

(e) any relevant submissions received by the Council;

(f) the provisions of the Albany Highway Policy Plan (draft or otherwise) in connection with any development fronting or in the near vicinity of Albany Highway; and

(g) such other matters as the Council considers relevant, whether of the same nature as the foregoing or otherwise.

42 It is clear from [41] above that when the discretionary provisions of the Scheme are used, due regard must be given to the broad planning principles of orderly and proper planning and the preservation of the amenity of the locality, and that these planning principles can be supplemented by a broad range of other planning matters.

The matter of the office/showroom proposals

43 Although the overall development proposal was refused by the respondent, its position regarding the office/showroom use at the front of the subject land was explained at hearing in the witness statement, dated 5 September 2008, of Mr Frank Polglaze, a senior planning officer at the Town of Canning. He advised in his statement at [43]:

In regard to the office and showrooms area the intensity of the use and its frontage to Cecil Avenue make it acceptable although not ideal in the zone. The office/showroom use has been allowed because it is in keeping with the overall objectives of the Policy.

44 The position of the respondent was further explained at hearing by Mr McLeod:

Then there are the two office showroom buildings, the small one located on the western side of the Western Power easement, and the ­ I should perhaps say to you that there is no real argument over those two buildings.

If they had been the only development proposed on the site, then there wouldn't be a hearing, one way or another, subject to appropriate conditions and, perhaps some remodification of those buildings and uses would have been approved.

(Page 14)

45 From the perspective of the Tribunal there appears to be no issue between the parties as to the acceptability of that part of the development proposal for office/showroom use and the associated caretaker's dwelling.

46 The principal issue between the parties is in respect to the proposed three storey warehouse positioned behind the two office/showroom buildings.

The matter of the warehouse (self-storage) proposal

47 This matter was addressed by Mr Polglaze in his witness statement and he concluded in his witness statement at [54]:

In conclusion I feel that the self storage facility of the development would be entirely unsuitable in the City Centre Zone because of the low intensity nature of its use, its blank monolithic appearance combined with its sheer bulk and its potential to be a target for crime and vandalism.

48 In his witness statement dated 4 September 2008, Mr Kenneth Adam, a qualified town planner and architect from KA Adam and Associates, advised on behalf of the respondent:

34. However, the storage facilities proposed to occupy the rear half of the site are, in my opinion, diametrically opposed to the vision, objectives and policies set out in the Canning Regional Centre Planning Policies document, for reasons that follow.

35. The use is of an extremely low­employment, low activity, and non­social kind, with no inherent public attractiveness and which provides no casual interaction with other users of the Centre. On all major characteristics it is the precise antithesis of what is needed to bring vitality to a regional centre.

36. It is, in fact, an industrial­type use, albeit somewhat less lively and magnetic than many.

37. It shares no common qualities with any of the preferred uses nominated for the site.

38. If approved it would:


• severely damage or destroy the prospects of a more suitable and attractive use of what is a very large and strategic parcel of land.

(Page 15)

• significantly lower expectations for the development of adjoining and nearby land, with a consequent negative effect on values, aspirations and development prospects; and

• set an undesirable precedent for adjoining land and land within the Centre generally.

39. In my opinion development of the land as proposed is likely also to greatly restrict the flexibility of the future development of this large and ­ especially ­ deep parcel of land. The long­term future of the Centre is most likely to require a more formal and closer ­ grained street and servicing pattern than is presently provided north of Cecil Avenue. Any longer term, more intensive development of the Centre is likely to suggest a subdivision of parcels like this one, with the current narrow ROW pattern of access both broadened and extended as a closer grid of city centre-type streets and lanes. An emerging pattern of this kind would capitalise on both the ROWs and the opportunity presented by the transmission line easement.

40. In my opinion any development of the site should be planned and designed in collaboration with the City, so as to ensure that reasonable options for the future are not prematurely cut off.

41. The layout of the proposed development does assist in this regard, but the storage use does not.

49 The position of the applicant is outlined in the witness statement, dated 3 September 2008, of Mr George Hajigabriel, a qualified town planner, from Greg Rowe and Associates. He advised:

a) The self-storage component of the development will provide a service use for those people using the City Centre.

b) A range of choice of commercial activities is important as it allows and encourages different sectors of the community to all access the same area. This ensures that the City Centre is potentially attractive to a wide range of the community and provides for the potential interaction between a diverse mix of people.

c) Although a 'warehouse' use is not one of the preferred uses in the 'Cecil' precinct, it is an 'AA' use under the Scheme. It can be approved.

d) The respondent has previously approved an 'Aged and Dependant Persons Dwelling' development on the subject land. This land use is not one of the 'preferred' uses in the 'Cecil' precinct.

(Page 16)

e) The subject land is located on the precinct boundary with the 'Leila' precinct which is intended for commercial uses. The proposed uses on the subject land are in keeping with those intended for the 'Leila' precinct.

50 The issue of the design and visual amenity of the self­storage building was also addressed in Mr Adam's witness statement:

47. In my opinion the garish painted­on facades proposed would be inappropriate, as well as, most likely, impermanent. There are now many good precedents for façade treatment of large tilt­panel concrete surfaces, involving colouration of panels and sculptural surface design, often both.

51 Again at hearing Mr Adam advised:

… any building of this kind of magnitude needs to be treated with a real quality finish or it[']s going to look shabby and [a] very second rate downgrading [of] the area.

52 An alternative view was expressed in the witness statement of Mr Hajigabriel:

87. The side and rear boundary walls are articulated and painted to provide for an interesting appearance, which will complement the area.

88. I understand that the Applicant has agreed that additional artistic treatment will be incorporated to all exposed boundary walls (inclusive of the showroom office buildings) to the satisfaction of the respondent.

89. I am of the opinion that significant thought and effort has been made to ensure that the appearance of the buildings is of a high quality that will not adversely impact on the amenity of the area.

53 Based on the various plans available to the Tribunal, it is clear that the applicant has, over time, tried to improve the aesthetic appeal of a large box building by way of lightweight mouldings. This is an attempt to add variation to the roof line and to the front, side and rear elevations.

The matter of security

54 In his witness statement Mr Polglaze advised:

(Page 17)

51. Another problem with blank walls is that they do not allow for passive surveillance. Passive surveillance is an essential aspect of crime prevention within a City Centre.

52. Unfenced blank walls on a boundary line will give rise to the potential for vandalism, especially when considering that the boundary to the north fronts onto playing fields.

53. I am also aware that self storage facilities are often targeted for break­ins and vandalism and consequently require very stringent security measures such as fulltime security and higher boundary walls often topped with barbed wire or razor wire. Although the development includes a caretaker's dwelling suitable security fencing will also be required to reduce the potential for break­ins and vandalism. Any such fencing would have an extremely oppressive impact on the amenity of the City Centre and would be detrimental to the vibrancy that this City is trying to create.

55 In his witness statement Mr Adam advised:

48. The drawings show that the storage area would be secured with a steel wired fence 1.7m high along the northern and western boundaries of the site. This would be significantly detrimental to the visual amenity of the Centre, and extremely inappropriate for a vital regional centre. It simply underlines again, how inappropriate the use is in the Centre.

56 The views of the applicant were contained in the witness statement of Mr Hajigabriel:

92. The proposal includes perimeter fencing. Security gates will be incorporated into the development to ensure access is restricted after normal business hours.

93. Each storage unit will be individually alarmed.

94. … the proposed development provides for a 'Caretaker' (Managers Accommodation) whose job it will be, among other things, to provide added security for the site after hours.

…

97. The majority of the car parking is located on the rear portion of the site and within the easement, which is expected to ensure that there is people movement in this portion of the site.

57 Of relevance in this matter is the Eleventh Annual Australasian Self Storage Almanac (2007) (Almanac) submitted as part of the applicant's s 24 Bundle on 13 August 2008. The Almanac shows under Table 7.4
(Page 18)

that the percentage of spaces affected by theft or break­in was 0.097% in 2007.

58 The Almanac states on page 42:

… self storage continues to be a safe place to store goods, with incidents [affecting] less than 1% of all units. In contrast insurance industry and Australian Institute of Criminology figures suggest that around 3% of households experience theft every year in Australia, compared to less than 0.1% of self storage units affected by theft.

59 Based on these figures alone, a development of 682 storage units could expect 0.682 break­ins per year.

60 Of further relevance is Table 7.6 of the Almanac which shows that for 2007 the percentage of centres with perimeter fencing was 91.1% (13.3% with electric fencing), 69% with cameras/video surveillance, 46.2% with security patrols, 62.7% with computerised gate access and 25.3% with a resident manager/caretaker.

61 At hearing Mr Rogers, counsel for the applicant, asked the following relevant question of Mr Polglaze:

Mr Rogers: If the entire site was developed for a comparable use as the front two buildings, there would be no activity at night and there certainly wouldn't be an on­site caretaker. Is there not equally then the potential for vandalism and break­in?

Mr Polglaze: I concede you have a good point there.

The adequacy of the developer's documentation:

62 This matter was addressed in the witness statement of Mr Adam:

14. I feel obliged to comment that, in my opinion, the documentation provided by the applicant falls very far short of what should be expected as a minimum for a development of such a size, value and nature, especially on a site of such strategic importance to the future development and quality of development, of a Regional Centre.

15. In my opinion the application should have included significantly more and better detail as to the site itself, including especially its levels and relationship to all adjoining sites. It should also have included extensive information as to its physical, visual and functional relationships to the surrounding locality and the Regional Centre as a whole, with particular reference to the Canning Regional Centre.

(Page 19)

16. In my opinion the assessment of the application should properly have been deferred pending the provision of the relevant information.

63 At hearing Mr Adam went on to say:

… the drawings lack accuracy and lack detail … if this site were developed with a retaining wall lifting it 1.5 metres above the adjoining land at that point, it would make it difficult to then join this land to the north … I think everything that's done in relation to it should look at the longer term possibilities of a closer­grained subdivision and development extending north from Cecil Avenue.

64 There was no detailed submission by the applicant in defence of the points outlined by Mr Adam.

Conclusions

65 The application for review was lodged against a decision of the City of Canning to refuse a development proposal by NUR Corporation Pty Ltd for showrooms, offices and a warehouse (self­storage) facility at 26 Cecil Avenue, Cannington.

66 At the hearing it became clear to the Tribunal that the respondent was not opposed to the three storey office and showroom development fronting Cecil Avenue, but that its concerns related to the proposed three storey warehouse facility as an inappropriate use within the Canning Regional Centre.

67 In undertaking this review, the Tribunal examined the respective arguments of the parties, the background to the proposal, the development concept, the legislative and policy provisions and matters relating specifically to the self­storage facility in terms of its suitability within the City Centre, its design and visual amenity, security issues and the adequacy of documentation accompanying the proposal.

68 Of relevance in this matter is State Planning Policy 4.2 whereby Regional Centres are intended to attract a full range of regional shopping activities, offices, administrative functions, and social, entertainment, recreational and community services. These intentions are reflected in the Canning Regional Centre Planning Policies.

69 Of importance is that within the Centre there are 13 precincts, with the subject land falling within Precinct 2 (Cecil). The 'preferred' uses are listed as education, recreation and community purposes.

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70 In his submission, Mr Hajigabriel argues that just because a 'warehouse' use is not a 'preferred' use, that this fact would not automatically exclude it from Precinct 2.

71 The Tribunal accepts this argument, particularly as the 'warehouse' use carries the 'AA' symbol within the whole of the City Centre zone (which includes Precinct 2) in TPS 40.

72 What the Tribunal does not accept is the contention by Mr Hajigabriel that a 'warehouse' use is a 'community' use because it is designed to serve the community.

73 As enticing as that argument might first appear, it does not fit the understanding of a 'community' use in planning terms, and to accept Mr Hajigabriel's point would, in effect, endorse the proposition that all retail and services uses were in fact of a 'community' nature.

74 One matter canvassed at hearing was whether a self­storage facility would fit the definition of 'warehouse' as defined in TPS 40. The definition states:

'warehouse' means a building or enclosed land or part of a building or enclosed land used for the storage and/or wholesale sale of goods and can include a bulk store or depot.

75 In the view of the Tribunal, the proposed self­storage facility is clearly a building 'used for storage', and would fit the definition of 'warehouse'.

76 With regard to the long­term future of Precinct 2 (Cecil) it is clear that the intent of the planning authorities is to foster a regional education complex with a range of complementary community facilities and services.

77 However, this intent is somewhat diluted in that the policies include the prospect of commercial development with frontage to Cecil Avenue up to Carousel Road. This would include the subject land.

78 In the view of the Tribunal, it would be easier to achieve an educational and community objective if the land was in public ownership (as is the case for most of the land in Precinct 2 (Cecil)), but there has been no attempt to reserve the land and acquire it for public purposes.

79 With the land in private ownership, it appears incumbent on the City to try and achieve its planning objectives by way of liaison with the landowner. To some extent, as outlined in [77] above, these objectives would be achieved

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in part with the office/showroom development fronting Cecil Avenue.

80 In terms of the remainder of the subject land, the view was put by Mr Adam for the respondent that it should be planned and designed in collaboration with the City; particularly the prospect of linkages with land to the north. However, Mr Adam was diametrically opposed to the prospect of a 'warehouse' use, which he argued was against both the vision and objectives of the Regional Centre Policy.

81 In answer to a question from Mr McLeod on this same point, Mr Hajigabriel for the applicant responded:

Mr McLeod: But just looking at self­storage units, you say that ­ would you be prepared to argue that self­storage units are synonymous with regional centres?

Mr Hajigabriel: No, I would not.

Mr McLeod: Given its characteristics and the fact that it is a low­intensity development, would you seriously argue that it will in any significant way contribute to a vibrant centre for the community?

Mr Hajigabriel: I think the development as a whole will do that.

82 On the matter of design and visual amenity there was a clear difference between the parties as to the acceptability of the warehouse building in terms of colours and surface treatment of the façades.

83 The view of the respondent was that further thought needed to be given by the applicant to these matters, but it is the case that the applicant has more recently attempted to modify the appearance of the building in terms of its aesthetic appeal.

84 What needs to be said is that, from the perspective of the Tribunal, this matter is secondary to whether the warehouse building should be allowed, and matters of design and visual amenity can usually be addressed by way of conditions of approval.

85 On the issue of security, it is clear from the 2007 Almanac provided by the applicant that break­ins are relatively rare in percentage terms when compared to those occurring in residential areas.

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86 However, these results appear to be influenced by the wide range of security measures taken at self­storage locations (perimeter fencing, video surveillance, security patrols etc). In the matter under review, such security measures as perimeter fencing, alarms and a caretaker/manager are all contemplated.

87 In the view of the Tribunal, if the remainder of the site was developed with offices and showrooms (and not for a warehouse), the problems of security and graffiti damage would still be present.

88 On the matter of the adequacy of the applicant's documentation, a number of points need to be made.

89 Firstly, there is no business case documentation before the Tribunal justifying the original 1,000 storage unit proposal, and what proportion of the units were expected to be accessed by residents and by business or whether the take­up of units would simply be left to market forces. There is no information on the existence, or otherwise, of nearby competitive outlets.

90 Again, there is no reason before the Tribunal as to why the original proposal of 1,000 units has been reduced to 682 units.

91 Based on the 2007 Almanac (pages 22 and 23) the following information is provided:

On average, the storage facilities in Australasia have nearly 400 spaces available, with NSW having the largest number of spaces of 433. The 'other states' have a combined total average of 325 spaces.

92 The proposed number of self­storage units is more than double the national average (NSW excluded).

93 On the matter of the relationship of the warehouse building to adjoining land; particularly the Communicare site to the east and the open space to the north, it is difficult from the information before the Tribunal to judge final levels, and the effect of these levels on the overall height and building bulk of the warehouse building when viewed from the east, west and north. The Tribunal accepts that the office/showroom development will tend to obscure the warehouse building when viewed from the south looking north.

94 In the view of the Tribunal, if the subject land is not to be used as contemplated by the Regional Centre Policy, it may have to be seen as part of a business centre or business park in association with the Leila precinct to the west.

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95 In that way a smaller warehouse (self­storage) use may well be contemplated as part of other business uses built in a landscaped setting on the periphery of the Regional Centre. Such a redesign could well see the amount of surface car parking reduced in favour of underground parking.

96 As proposed, the Tribunal finds that the development of such a large warehouse structure for self­storage purposes has not been justified and would appear to present as an overpowering structure some 80 metres long by 50 metres wide. In that sense alone, it would not be in the interests of orderly and proper planning on the subject land.

97 What the Tribunal would suggest is that reconsideration be given by the applicant to an amended proposal; preferably in liaison with the respondent. In that way, consideration could be given to a staged development in which the office/showroom use fronting Cecil Avenue could be submitted in its current or modified form as Stage 1.

Orders

98 The application for review is dismissed.

I certify that this and the preceding [98] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR L GRAHAM, SENIOR SESSIONAL MEMBER