Phil Lukin Pty Ltd And Lowe Pty Ltd and Shire Of Busselton

[2006] WASAT 124

PHIL LUKIN PTY LTD AND LOWE PTY LTD and SHIRE OF BUSSELTON [2006] WASAT 124

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 124
Act:	TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:	DR:667/2005	Heard:	2 MAY 2006
Coram:	MR D R PARRY (SENIOR MEMBER)	Delivered:	19/05/06
No of pages:	34	Judgment Part:	1 of 1
Result:	1. Application for review upheld 2. Development approval granted subject to conditions
Category:	B
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Parties:	PHIL LUKIN PTY LTD AND LOWE PTY LTD SHIRE OF BUSSELTON
Catchwords:	Town planning ­ Development application ­ Roadside services ­ Integrated facility on arterial road comprising bakery with internal and external seating, specialty tourist retail, tourist meals lounge, service station and workshop ­ Characterisation ­ Whether development characterised as "providing services to motorists, tourists and the travelling public, including development for the purposes of a … refreshment room, tourist facility, transport terminal or service station" ­ Whether it is open to characterise elements of proposed development by reference to definitions of other terms in local scheme ­ Whether proposed development satisfies conditions for approval of roadside services in scheme ­ Demand for development ­ Whether approval should be granted having regard to scheme considerations, Rural Strategy, Urban Growth Strategy and State Planning Policy ­ Economic impact on trade competitors ­ Conditions ­ "To the satisfaction of the Shire" ­ Whether "reasonable" should be inserted before "satisfaction" ­ Where "satisfaction" refers to "approval" in relation to incidental aspect of development, condition should refer to "approval" ­ "Satisfaction" inappropriate where it is a means of enforcement ­ "Reasonable" would only add to uncertainty and was not inserted ­ Words & phrases: "refreshment room", "tourist facility"
Legislation:	Busselton Urban Growth Strategy Interpretation Act 1984 (WA), s 32(2) Planning and Development Act 2005 (WA), s 252(1) Shire of Busselton Rural Strategy Shire of Busselton Town Planning Scheme No 20, cl 10(3), cl 12, cl 13(1), cl 21(3), cl 21(6), cl 39, cl 47(2), Sch 1 Town Planning and Development Act 1928 (WA), s 8A(1)
Case References:	BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110 Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Randall and Town of Vincent [2005] WASAT 147 Nil
Orders	On the application heard before Senior Member David Parry on 2 May 2006, it is ordered that:,1. The application for review is upheld.,2. Development approval for the construction and use of a facility comprising a bakery with indoor and outdoor seating, specialty tourist retail, tourist meals lounge, service station and workshop at Lot 12 Caves Road, Abbey is granted subject to the conditions in Attachment A.,ATTACHMENT A,1. The development shall be carried out in accordance with three sheets of plans, being Project No A04004 Drawing Nos 863 ­ 201 (proposed site plan) dated 20 Dec 04, 863 ­ 202 (proposed floor plan) dated 20 Dec 04, and 863 ­ 203 (elevations) dated 17 Dec 2004 by Cardno BSD, except as varied by the following conditions.,2. A building licence application under the provisions of the Local Government Miscellaneous Provisions Act 1960 must be submitted to and approved by the Shire prior to the commencement of any on­site works whatsoever.,3. If the development is not substantially commenced within three years of the date of this development approval, then this development approval lapses.,4. Occupation or use of the development shall not occur until the Shire has issued, to the owner, a written Permit to Use for the development.,5. The development the subject of this approval is limited to a bakery, specialty tourist retail, tourist meals lounge, service station and workshop and associated parking areas. The specialty tourist retail use is limited to the display and sale of locally­produced and locally­associated products and products needed or desired by people who are in the process of touring.,6. Plans submitted with the building licence are to show natural and finished ground levels and finished floor levels.,7. A geotechnical report covering the development area being prepared by the applicant at the applicant's cost. The report to be lodged with the building licence application, together with certification from a structural engineer that the design is suitable for the site conditions as outlined in the geotechnical report.,8. Filling of the site, other than that directly necessary for the development as approved under a building licence, is prohibited.,9. A Drainage Management Plan shall be prepared and submitted for the approval of the Shire prior to issue of the building licence. The approved Drainage Management Plan shall be implemented prior to issue of a Permit to Use.,10. A Dust Management Plan to be prepared and submitted for the approval of the Shire prior to issue of a building licence and implementation of that Plan to be undertaken at each and every stage of the development.,11. The provision on site of a minimum number of 138 car parking bays. The parking areas, driveways and points of ingress and egress, including crossovers to be designed, constructed, drained and marked to the specifications of the Shire, and thereafter maintained. Details to be submitted with the building licence application.,12. A minimum of two disabled parking bays (included in the total of 138), located convenient to the building entrance and with a minimum width of 3.6 metres, to be provided. Details to be submitted with building licence application.,13. The provision of bicycle parking facilities. Details to be submitted with building licence application.,14. The access from and egress to Caves Road must be designed and constructed in accordance with Main Roads WA's requirements.,15. The proponent shall construct (at no cost to the Shire) a dual use/pedestrian pathway to the specifications of the Shire which will link the site to Lot 34 Bussell Highway corner Newtown Beach Road, prior to issue of a Permit to Use.,16. A lighting and signage strategy shall be submitted for the approval of the Shire prior to issue of a building licence. Lighting and signage on site shall at all times be in accordance with the approved lighting and signage strategy.,17. The colour of the roof and wall materials being in accordance with the Shire's adopted policy on "The use of Reflective Building Materials".,18. A Landscape Plan shall be submitted for the approval of the Shire prior to the issue of a building licence. The Plan shall:,(a) include the location and type of any fencing and paving to be installed;,(b) provide details of the location of all plants proposed to be removed, retained and/or planted;,(c) provide a plant schedule for all plants proposed to be removed, retained and/or planted nominating each species, the number and spacings of plants, the size of each plant at the time of planting together with the anticipated height of each plant at maturity;,(d) include the adjoining road verge;,(e) provide for planting of trees within the parking area(s) and retention of existing vegetation along the southern boundary of the site; and,(f) provide for a minimum 3.0 metre wide vegetation buffer along the frontage of the site comprising a mixture of locally-indigenous trees and medium and ground cover plantings, with the trees placed such that they shall not prevent the development from being readily visible and accessible to motorists travelling along Caves Road.,19. Landscaping and reticulation to be established in accordance with the approved Landscape Plan prior to issue of a Permit to Use and thereafter maintained on the site and, if agreed to by Main Roads WA, on the adjoining road verge.,20. All green waste generated on site from construction works the subject of this approval are, where practical, to be processed and reused on site.,21. The development being connected to a reticulated water supply prior to issue of a Permit to Use.,22. The development being connected to a reticulated deep sewer prior to issue of a Permit to Use.,23. The provision of a suitably screened bulk bin area to the specifications of the Shire prior to issue of a Permit to Use. Details to be submitted with the building licence application.,24. Where petrol, benzine or other inflammable or explosive substances or grease, oil or greasy/oily matter is likely to be discharged, a sealed wash down area and a petrol and oil trap must be installed. Such a system to be connected to an approved leach drain system prior to issue of a Permit to Use. Details to be submitted with the building licence application.,25. The development being designed and constructed to allow easy access for people with disabilities. Details to be submitted with the building licence application.,26. No goods or materials being stored either temporarily or permanently in the parking, footpath or landscape areas of within access driveways.,27. Prior to the issue of a building licence, the applicant shall provide a bond to the value of $10 000 with the Shire of Busselton. The bond may be in the form of cash, cheque or bank guarantee and is a performance guarantee against satisfactory completion of the conditions of this Planning Consent. The performance guarantee will be refunded in full immediately the outstanding works are complete/established as appropriate to the conditions. Any such bond is to be accompanied by a written authorisation from the owner of the land that the Shire may enter the site to complete or rectify any outstanding work. The Shire will recover from the bond, or part of the bond, as appropriate, the cost to the Shire, including administrative costs, of completing or rectifying any outstanding works.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : PHIL LUKIN PTY LTD AND LOWE PTY LTD and SHIRE OF BUSSELTON [2006] WASAT 124 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 2 MAY 2006 DELIVERED : 19 MAY 2006 FILE NO/S : DR 667 of 2005 BETWEEN : PHIL LUKIN PTY LTD AND LOWE PTY LTD

Applicants

AND

SHIRE OF BUSSELTON
Respondent

Catchwords:

Town planning ­ Development application ­ Roadside services ­ Integrated facility on arterial road comprising bakery with internal and external seating, specialty tourist retail, tourist meals lounge, service station and workshop ­ Characterisation ­ Whether development characterised as "providing services to motorists, tourists and the travelling public, including development for the purposes of a … refreshment room, tourist facility, transport terminal or service station" ­ Whether it is open to characterise elements of proposed development by reference to definitions of other terms in local scheme ­ Whether proposed development satisfies conditions for approval of roadside services in scheme ­ Demand for development ­ Whether approval should be granted having regard

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to scheme considerations, Rural Strategy, Urban Growth Strategy and State Planning Policy ­ Economic impact on trade competitors ­ Conditions ­ "To the satisfaction of the Shire" ­ Whether "reasonable" should be inserted before "satisfaction" ­ Where "satisfaction" refers to "approval" in relation to incidental aspect of development, condition should refer to "approval" ­ "Satisfaction" inappropriate where it is a means of enforcement ­ "Reasonable" would only add to uncertainty and was not inserted ­ Words & phrases: "refreshment room", "tourist facility"

Legislation:

Busselton Urban Growth Strategy

Interpretation Act 1984 (WA), s 32(2)
Planning and Development Act 2005 (WA), s 252(1)
Shire of Busselton Rural Strategy
Shire of Busselton Town Planning Scheme No 20, cl 10(3), cl 12, cl 13(1), cl 21(3), cl 21(6), cl 39, cl 47(2), Sch 1
Town Planning and Development Act 1928 (WA), s 8A(1)

Result:

1. Application for review upheld

2. Development approval granted subject to conditions

Category: B

Representation:

Counsel:

Applicants : Mr MJ Hardy
Respondent : Mr FJ van der Kooy

Solicitors:

Applicants : Hardy Bowen
Respondent : Minter Ellison

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

BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Randall and Town of Vincent [2005] WASAT 147
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</CRJ>

Case(s) also cited:

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

1 These proceedings involved an application for review of the refusal of a development application which proposed an integrated motorist­ and tourist­oriented facility on Caves Road, Abbey. The proposed land uses comprised a bakery, with internal and external seating, a specialty tourist retail use, a tourist meals lounge, a service station, and a workshop.

2 The Tribunal determined that each element of the proposal was capable of approval under the applicable local scheme. The bakery and tourist meals lounge involved development for the purposes of a refreshment room, the specialty tourist retail element involved development for the purposes of a tourist facility, the service station was expressly contemplated by the scheme, and the workshop provided services to motorists. The development satisfied each of the conditions set out by the scheme, including a requirement that the consent authority make an assessment of the demand for the development.

3 The Tribunal determined that the application warranted approval in the exercise of planning discretion. It was a well­designed and well­located facility which was properly responsive to the applicable planning controls. The physical characteristics of the development and its relationship to other land in the locality were acceptable. It would not materially affect the separation of the communities of Abbey and Dunsborough. Although public objections expressed concern about the economic impact of the proposal on existing roadside service providers, this was not a relevant town planning consideration.

4 The Tribunal granted development approval subject to conditions.

Introduction

5 These proceedings involve an application brought by Phil Lukin Pty Ltd and Lowe Pty Ltd (applicants) pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) (see now Planning and Development Act 2005 (WA) s 252(1)) for review of the decision of the Shire of Busselton (Shire) to refuse a development application in relation to Lot 12 Caves Road, Abbey (Lot 12). The development application describes the proposed development as "roadside services", which is the heading of cl 39 of the Busselton Shire Council District Town Planning Scheme No 20 (TPS 20), pursuant to which the development application is put forward. The development application proposes the

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construction and use of an integrated motorist­ and tourist­oriented facility comprising five different land uses accommodated in a single building. The proposed uses are a bakery, which has indoor and outdoor patron seating, with an internal area of 500 square metres and an "al fresco" area of 420 square metres, specialty tourist retail with an area of 815 square metres, tourist meals lounge with an area of 420 square metres, service station with an area of 420 square metres, and workshop with an area of 215 square metres. For reasons set out below, the Tribunal considers that each of the five proposed land uses falls within the categories of development capable of approval under cl 39.

6 The development application and accompanying plans describe the site of the proposed development as Lot 12, which has an area of approximately 2.68 hectares. However, the development application only proposes development on the eastern part of Lot 12 comprising slightly over half its area. The part of Lot 12 proposed to be developed is referred to in these reasons as "the site".

7 The site is located on the southern side of Caves Road and is separated by one property from the intersection of Caves Road and Bussell Highway to the east. It is substantially cleared, but not otherwise physically developed. The site is zoned "Agriculture" under TPS 20, but is located in an area of mixed character.

8 The land in the vicinity of the site on the southern side of Caves Road is also zoned "Agriculture", but is not generally used for productive agriculture, and contains a variety of small­scale commercial and accommodation developments. It appears that some agricultural as well as residential use takes place on the properties immediately adjoining to the west and south. The property immediately to the east contains a residence, a general welding and fabrication workshop and an ice factory. Across Bussell Highway from the adjoining property to the east is a large property which, according to the unchallenged evidence of Mr Michael Swift, a town planner who gave evidence on behalf of the applicants, is in the final stages of rezoning from "Agriculture" to "Residential" and contains an archery park and go­kart track. To the south and east of that property is land zoned "Residential" with density codings ranging from "R5" to "R30".

9 Land on the opposite, that is, northern side of Caves Road is predominantly zoned "Residential", with a density coding of "R15", and is a residential suburb. Approximately 75 metres to the north­east of the site, a short distance to the east of the intersection of Bussell Highway

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and Caves Road, is a property zoned "Business", which comprises a corner store, hair studio, liquor shop, takeaway food shop and a small petrol station with two bowsers, known as "Monaghan's Corner".

10 The proposed building is single storey, with an "L­shaped" footprint, located centrally on the site. The short part of the "L" would be set back approximately 30.0 ­ 35.0 metres from the Caves Road frontage. However, because the site has a tapered frontage to Caves Road, the closest part of the building to the road would be the canopy above the service station bowsers, located near the end of the long part of the "L", which would be set back approximately 18.0 metres. The principal part of the building would be set back approximately 40.0 ­ 50.0 metres from the road frontage. The long part of the "L" would be approximately 70.0 metres in length.

11 Six bowsers are proposed below the service station canopy, at which 12 cars could refuel at the same time. Central toilets are proposed to serve the whole facility accessed via a covered walkway which forms part of the building between the bakery and specialty tourist retail uses.

12 The site is proposed to be substantially paved to enable the manoeuvring and parking of vehicles. A total of 138 car parking spaces are proposed adjacent to the eastern, western and northern/street frontage boundaries of the site and adjoining the bakery and specialty tourist retail uses. An area of approximately 3500 square metres to the south of the building is proposed to be available for the parking of coaches, boat trailers and other large vehicles. Two entry and exit points are proposed from and to Caves Road adjacent to the eastern and western boundaries of the site. Reduced copies of the proposed plans are reproduced as Attachment A to these reasons.

13 The development application was referred to Main Roads WA (Main Roads) for comment and was advertised to nearby landowners pursuant to cl 12 of TPS 20. Main Roads indicated that it "has no objection to the proposal, in principle", but noted that the accesses to Caves Road will need to be designed and constructed to Main Roads' requirements. Eighteen submissions were received, comprising four in support of the proposal and 14 against. The 14 submissions against the proposal include six from people who are trade competitors of parts of the proposal. In addition, a petition with 354 signatures was forwarded to the Shire under cover of a letter from the owner of the corner store at Monaghan's Corner.

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Issues for consideration in the review

14 The following two principal issues emerged for consideration in the review:

1. Whether the proposed development is capable of approval under cl 39 of TPS 20.

2. Whether development approval should be granted in the exercise of discretion, having particular regard to the considerations set out in cl 13(1) of TPS 20, the Shire of Busselton Rural Strategy (Rural Strategy), the Busselton Urban Growth Strategy (Urban Growth Strategy) and State Planning Policy 6.1 ­ Leeuwin ­ Naturaliste Ridge Policy (SPP 6.1).

15 The Tribunal will address these issues in turn.

Is the proposed development capable of approval under cl 39?

16 Clause 39 provides as follows:

"The Council may grant consent to development on land within the Agriculture Zone and which has frontage to a main or arterial road for the purposes of providing services to motorists, tourists and the travelling public, including development for the purposes of a motel, general store, refreshment room, tourist facility, transport terminal or service station, where ­

(a) The Council has made an assessment of the demand for the development, having regard to the nature and volume of traffic using the road, any existing development of a similar type and the location of and distance from other land on which development of a similar type may be carried out; and

(b) The development comprises, or is part of, a planned roadside service area that has been located and designed so as to minimise interference with the free flow of traffic on the road and to minimise traffic hazards.

(c) The Council is of the opinion that the development is not in conflict with the Policies and Objectives for the Agriculture Zone or other zones as relevant, the General

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Objects of the Scheme and does not create the potential for ribbon development.

(d) With respect to a development application for land fronting Caves Road, Council is of the opinion that the proposal is consistent with the Caves Road Visual Management Policy pursuant to Section 101 and Schedule 10 of the Scheme.

(e) Council has considered the comments and advise of Main Roads WA; and

(f) Council has advertised the application and has considered submissions received pursuant to Clause 12 of the Scheme."

17 Clause 39 establishes four pre­conditions in order for a development to be capable of approval under its terms, namely:

1. The site must be zoned "Agriculture" under TPS 20;

2. The site must have frontage to a main or arterial road;

3. The development must be "for the purposes of providing services to motorists, tourists and the travelling public, including development for the purposes of a motel, general store, refreshment room, tourist facility, transport terminal or service station"; and

4. The development must satisfy each of the conditions set out in paragraphs (a) to (f).

18 It is common ground, in relation to the final pre­condition, that, although "; and" appears at the end of paragraphs (a) and (b), whereas a full stop appears at the end of paragraphs (b), (c) and (d), the intent of the clause is that a development must satisfy each paragraph. The Tribunal accepts this position as a sensible interpretation of the clause.

19 It is common ground that the proposal satisfies the first two pre­conditions established by cl 39. The parties disagree as to whether the latter two pre-conditions are satisfied.

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Third pre­condition

20 In relation to the third pre­condition, Ms Angela Satre, a planning officer of the Shire who, when acting as Manager, Statutory Planning, refused the development application under delegation, gave evidence that the proposed bakery, specialty tourist retail and tourist meals lounge uses are "significant uses in their own right and are appropriately classified in accordance with the Scheme's provisions". In particular, Ms Satre considers that the bakery and specialty tourist retail uses "should be classified as 'shop'" which, when used in TPS 20, has the meaning given to it in Sch 1 of the Scheme. Similarly, she considers that the tourist meals lounge use "should be classified as a 'Restaurant' which is defined in Schedule 1". Ms Satre notes, correctly, that use of the class "Shop" and "Restaurant" is prohibited in the "Agriculture" zone under cl 21 of TPS 20. She considers that, "[g]iven that the majority of its floor space is to be used for purposes prohibited in the 'Agriculture' zone, the proposed development should not be granted development approval".

21 Mr Swift gave the following evidence in his witness statement:

"In my opinion the proposed development is a 'Roadside Service' as the subject site is zoned 'Agriculture' under the Scheme and the development includes a service station, workshop, tourist meals facility, specialty tourist shop and bakery. The bakery is also intended to operate as a tourist feature. The components of the proposal are consistent with the classification of a 'Roadside Service' under the provisions of Clause 39 in that the specialty tourist shop is consistent with a 'general store' and the tourist meals facility and bakery are both 'refreshment rooms' as listed within the Clause."

22 In oral evidence, Mr Swift explained that the specialty tourist retail use could also constitute a "tourist facility". He also considers that, insofar as customers might come to the site to take away bakery products or patrons of the refreshment room might take away other bakery products, the takeaway use would be "part and parcel" of the refreshment room use.

23 Other than "motel" and "service station", none of the words or terms used in the third pre­condition established by cl 39 are defined in Sch 1 or elsewhere in TPS 20. When used in the Scheme, the term "service station" means "any land or buildings used for the retail sale of petroleum products and motor vehicle accessories and for carrying out greasing, tyre repairs, minor mechanical repairs to motor vehicles but does not include a

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transport depot, panel beating, spray painting, major repairs or wrecking". Clause 10(3) of TPS 20 provides that "[w]ords and expressions used in the Scheme, but not defined in Schedule 1 [or] elsewhere in the Scheme or in the Residential Planning Codes shall have their normal and common meanings".

24 Mr MJ Hardy, counsel for the applicants, correctly submits that the approach to characterisation and permissibility adopted by Ms Satre and the Shire involves legal error. It is not open to characterise elements of the proposal by reference to the definitions of terms used in the zoning table for the "Agriculture" zone, but not used in cl 39. The determination of whether the proposed uses are capable of approval begins and ends with cl 39 and, insofar as any words or expressions used in cl 39 are defined in Sch 1, with the relevant defined term in that Schedule.

25 Clause 39 constitutes a separate and distinct planning approval regime for development which falls within its terms to that which otherwise operates in the "Agriculture" zone. The clause provides for the approval of land uses on land having frontage to a main or arterial road which are not contemplated as capable of approval in the "Agriculture" zone by the zone objectives and policies set out in Table 1 and the list of permissible land uses set out in Table 2 of the Scheme. To take an example emphasised by Mr Hardy, development for the purposes of a "motel" is prohibited under the zoning table for the "Agriculture" zone, whereas it is expressly permitted in cl 39. Moreover, the very nature of development contemplated by cl 39 is significantly different in character to the types of development contemplated by the objectives and policies of the "Agriculture" zone. The Scheme recognises this difference, in that cl 39(c) merely requires the consent authority to form the opinion that the development "is not in conflict with the Policies and Objectives for the Agriculture Zone", whereas in the case of development otherwise proposed in the "Agriculture" zone, cl 21(6) precludes the consent authority from granting consent unless it is of the opinion that the carrying out of the development "is consistent with one or more of the objectives and policies of the zone" (emphases added).

26 In BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110, the Town Planning Appeal Tribunal stated, at 114, as follows:

"A single development application can be considered for different and distinct uses on the one site and it is important not to lump independent uses into one dominant use for the purpose of classification." (Referred to with approval by the Supreme

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Court of Western Australia (Full Court) in Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431 at [1]; [2]; [53]).

27 Although the proposal involves an integrated facility with common parking, manoeuvring and toilet areas, the development application seeks approval to five independent uses on the site, none of which appears to be incidental or ancillary to another. Each of the proposed uses must satisfy the third pre-condition in cl 39 in order to be capable of approval. Before considering whether each proposed use satisfies the pre­condition, two preliminary observations should be made.

28 First, as Mr Hardly correctly submits, the word "including" in cl 39 is intended to enlarge the ordinary meaning of the words which precede it: see Statutory Interpretation in Australia by DC Pearce and RS Geddes (5th Edition, Butterworths, 2001) at [6.56] and cases there referred to.

29 Second, although Mr Swift describes the proposed development as a "Roadside Service", it is to be noted that this term is used only in the heading to cl 39, which does not form part of the instrument: Interpretation Act 1984 (WA) s 32(2), and in the condition described in par (b). Although the words "Roadside Service" might be a useful shorthand expression for the type of development contemplated by cl 39, care must be taken not to construe those words or to attempt to characterise development by reference to them. As noted earlier, the Tribunal's present task begins and ends with the words of the clause itself.

30 The proposed service station use falls within the defined meaning of the term "service station" and, therefore, satisfies the third pre­condition in cl 39.

31 The proposed workshop is "for the purposes of providing services to motorists" and, therefore, falls within the wording of the clause.

32 The proposed bakery, with internal and external seating, and the proposed tourist meals lounge each constitute a "refreshment room". As noted earlier, this term is not defined in TPS 20 and, according to cl 10(3), is to be given its normal and common meaning. The noun "refreshment" is relevantly defined in The Macquarie Dictionary (4th Edition, Macquarie, 2005) at page 1192 as "that which refreshes, especially food or drink". A "refreshment room" is, therefore, a place where food and drink are prepared and consumed. The Tribunal does not accept Ms Satre's opinion that the size of the proposed bakery and tourist meals lounge precludes these areas from being capable of use as a "refreshment

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room". The term does not embody a limitation on size. Furthermore, the Tribunal accepts Mr Swift's evidence that any takeaway use from the bakery or tourist meals lounge would be incidental to the refreshment room use, given the proposed physical characteristics, particularly the extensive seating areas.

33 The proposed specialty tourist retail use constitutes a "tourist facility" and, therefore, satisfies the third pre­condition in cl 39. The noun "tourist" is relevantly defined in The Macquarie Dictionary at page 1488 as "someone who tours, especially for pleasure". The noun "facility" is relevantly defined at page 504 as "a building or complex of buildings, designed for a specific purpose, as for the holding of sporting contests, launching of rockets, etc". A "tourist facility" is, therefore, a building or complex of buildings designed for people who tour, especially for pleasure. A specialty tourist retail use falls within this term. As the plans indicate, by way of example, the use includes the display and sale of local wine or cheese. It also includes the display and sale of other locally­produced or locally­associated products or products needed or desired by people who are in the process of touring. A place where goods of this character are displayed and sold is a "tourist facility".

34 However, contrary to Mr Swift's opinion, the proposed specialty tourist retail use does not fall within the term "general store". That term is defined in The Macquarie Dictionary at page 590 as "a shop at some distance from a major shopping centre, stocking a wide range of goods, as the main store in a small country town". A speciality tourist retail use is not a "general" store, although the inclusion of the term "general store" after the word "including" in cl 39 highlights the fact that the word "including" is intended to enlarge the meaning of the words which precede it. Although the words before "including" refer only to "services", the reference to "general store" confirms that the land uses which follow it are not simply illustrative of the meaning of the earlier words, but enlarge their meaning and can include the sale of goods.

35 Mr FJ van der Kooy, counsel for the Shire, submits that, in order to be capable of approval under cl 39, any proposed use must provide services to motorists, tourists and the travelling public. Mr van der Kooy also submits that the proposed development is a "tourist attraction" and, therefore, does not satisfy the clause. These submissions appear to be based on Ms Satre's evidence that "a 'tourist facility' in the context of 'providing services to motorists, tourists and the travelling public' has more to do with the provision of public toilets or information kiosks rather than the providing of 'a popular tourist attraction' as the applicant

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anticipates the bakery will become". There does not appear to be any basis in TPS 20 to read down the normal and common meaning of the words "refreshment room" and "tourist facility". As the word "including" signifies an expansion of the ordinary meaning of the words which precede it, the words "refreshment room" and "tourist facility" cannot be read down by reference to the words "services to motorists, tourists and the travelling public".

36 The development application states that the proposed bakery "is to be operated by the 'Beechworth Bakery'", which is a "well-established company already [having] two existing bakery's [sic] operating as tourist attractions in country Victoria", and that it is "anticipated that the introduction of a 'Beechworth Bakery' in this locality will have similar positive effects on the locality and operate as a popular tourist attraction". However, the fact that the proposed bakery is intended to attract tourists and therefore to be a "popular tourist attraction" does not mean that it is not a "refreshment room" within the meaning of cl 39. A refreshment room which is an attraction for tourists is certainly contemplated by the clause.

37 It follows that each proposed use satisfies the third pre­condition.

Fourth pre­condition

Paragraph (a) – Assessment of demand for development

38 Paragraph (a) requires the consent authority to make "an assessment of the demand for the development" having regard to certain nominated matters. This is an unusual planning provision. As the Town Planning Appeal Tribunal determined in BP Australia Pty Ltd v City of Perth at 118:

"In summary, the need for a use is not a threshold question that must be resolved. A commercial developer should not be put to the test of establishing demand for the use by market surveys or through evidence that attempts to prove some other perceived desire for the use."

39 The clear implication from par (a) is that, contrary to the determination of the Town Planning Appeal Tribunal, in this case, it is within the planning discretion of the consent authority, having made the assessment required by par (a), to refuse a development application which otherwise satisfies cl 39, on the basis that there is insufficient demand for the development. The Tribunal has undertaken the required assessment,
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with the assistance of the parties, and is satisfied that there is demand for the development, having regard to the nominated matters.

40 The development application is accompanied by a traffic impact assessment which has not been questioned by the Shire. The traffic impact assessment refers to recent Main Roads traffic counts which show the weekend traffic on Caves Road at approximately 3700 vehicles per day in both directions. However, the survey did not take place during a school holiday or a long weekend period, when increased traffic could be expected. The authors of the traffic impact assessment consider that an additional 10% traffic can be expected during school holidays or long weekends.

41 Ms Satre considers that there is insufficient demand for the proposed development, "given that similar developments exist within close proximity of the [site]". In particular, she identifies Monaghan's Corner, the Broadwater Shopping Centre 2.0 kilometres to the east, a service station and shop 1.8 kilometres to the south, a service station, shop and café 3.5 kilometres to the west, a number of small shops and food outlets 5.4 kilometres to the east, a service station and shop approximately 3.7 kilometres to the east, a 24 hour service station and shops, including a chemist, approximately 6.0 kilometres to the east, a refreshment room approximately 250 metres to the south and a transport terminal approximately 1.8 kilometres to the south.

42 Mr Swift considers that each of the developments referred to by Ms Satre contain one or more of the elements of the proposal, but "none contain the suite of activities necessary to create a well­rounded service facility, ie car parking, fuelling, repair, maintenance, meals, convenience shopping, tourist information and tourist goods" which define the proposed integrated facility.

43 The Tribunal does not consider that the other developments identified by Ms Satre demonstrate insufficient demand for the proposed development. As Mr Swift correctly says, the proposal is "unique" in the context of the type of development which exists in the locality. None of the other developments appears to be an integrated facility providing the range of uses proposed. Moreover, although car parking is provided in some, but not all, of the other developments, none of them appears to have dedicated or convenient parking and manoeuvring areas for coaches and other large vehicles. Indeed, in their letter of objection to the proposed development, the owners of the closest development referred to by Ms Satre, namely Monaghan's Corner, note that their complex "at present

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is outdated, inadequate in size, and does not have sufficient parking or amenities to meet its need for the public or its commercial tenants" (as written). Finally, but significantly, only two of the developments referred to by Ms Satre are located on the same side of the road as the site. Moreover, it is common ground that on the arterial routes from Bunbury to Augusta, there are only two service stations on the same side of the road as the site.

44 Ms Satre also considers that development of a similar type may be carried out on any land zoned "Business" and notes that there are significant portions of land in that zoning in the newly­planned Vasse Townsite located 1.8 kilometres south of the site on Bussell Highway. However, such development on Bussell Highway would not conveniently serve passing cars and coaches travelling along Caves Road. Further, it is not apparent on the evidence how large available allotments zoned "Business" in the Vasse Townsite are. To provide a similar type of development, a site must be sufficiently large to enable the safe and convenient manoeuvring and parking of coaches, other large vehicles, and cars. Finally, it is unclear whether the type of integrated motorist- and tourist­oriented facility proposed is contemplated by the objectives and policies of the "Business" zone under TPS 20, and whether this form of development would be appropriately located in a business area. For reasons discussed below, the Tribunal considers that the site of the proposed development, being a large area adjacent to an established urban area, is well-suited for the proposed development.

Paragraph (b) – Planned roadside service area

45 Ms Satre considers that the proposed development is not "a planned roadside service area" within the meaning of par (b), because planned roadside service areas are those identified in the Shire's strategic planning guidelines, and the Shire has not, to date, identified any areas for the purposes of a roadside service area. Mr Swift considers that the development satisfies par (b), as it comprises a self­contained roadside service area that has been planned on the basis of traffic and town planning expertise.

46 The Tribunal is satisfied that the development comprises a planned roadside service area that has been located and designed so as to minimise interference with the free flow of traffic on the road and to minimise traffic hazards. The provision does not require that the Shire have "planned" the site as a service area. The apparent intent of the provision is to ensure that proposals providing the uses referred to in the clause on main or arterial roads are well planned and do not adversely affect traffic.

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The Shire does not challenge the traffic impact assessment put forward by the applicant. Moreover, as noted earlier, Main Roads has no objection to the proposal.




Paragraph (c) – Development not in conflict with the policies and objectives for the zone

47 Ms Satre considers that the proposed development is in conflict with eight of the objectives and one of the policies of the "Agriculture" zone, and that it creates the potential for ribbon development. Neither she nor the Shire contends that the development is in conflict with the general objects of TPS 20.

48 Ms Satre also considers that the development application is required to be refused under cl 21(6) of TPS 20 which, as noted earlier, precludes the consent authority from granting consent to the carrying out of development unless it is of the opinion that the carrying out of the development "is consistent with one or more of the objectives and policies of the zone". In her evidence, Ms Satre has conflated the assessment of whether the development "is not in conflict with the Policies and Objectives for the Agriculture Zone", which is required by cl 39(c), with the assessment of whether a development "is consistent with one or more of the objectives and policies of the zone", under cl 21(6). However, these considerations are quite different. The noun "conflict" is relevantly defined as "to come into collision; clash, or be in opposition or at variance; disagree": The Macquarie Dictionary page 309. In contrast, the adjective "consistent" is relevantly defined as "agreeing or accordant; compatible; not self­opposed or self­contradictory" and "constantly adhering to the same principles, course, etc".

49 As discussed earlier, cl 39 constitutes a separate and distinct planning approval regime to the otherwise applicable provisions of TPS 20 in relation to land zoned "Agriculture". The nature of development contemplated by cl 39 is different in character to development generally contemplated for the "Agriculture" zone. It is sensible, therefore, that cl 39(c) is expressed in different terms to cl 21(6). Moreover, reading the Scheme as a whole, it is apparent that cl 21(6) does not apply in circumstances where cl 39 applies. There would be little point in requiring an assessment as to whether a development is not in conflict with policies and objectives if the development could not be approved if it were not consistent with one or more of the objectives and policies. More fundamentally, the fact that cl 39 provides for the approval of development of a different character to development otherwise contemplated in the "Agriculture" zone means that the intent of cl 39

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would be defeated by requiring consistency with one or more of objectives and policies which do not contemplate the type of development in question.

50 The Tribunal is satisfied that the proposed development is not in conflict with, that is, does not clash with, is not in opposition to or at variance with, or disagreement with, the objectives and policies of the zone. The proposal is not in conflict with the objectives (i) "to conserve the productive potential of rural land" and (ii) "to provide for new forms of agricultural development". As Mr Hardy submits, given the size, historical use and location of the site, it does not have "productive potential". Moreover, although it is "rural land", for reasons discussed below, the Shire's strategic planning appears to indicate that it is unlikely to retain that designation.

51 The development is not in conflict with objective (iv) "to enable the development of land for other purposes where it can be demonstrated by the applicant that suitable land or buildings for the proposed purposes are not available elsewhere and that such purposes will not detrimentally affect the amenity of any existing of proposed nearby development". The "other purposes" referred to are purposes other than those identified in the objectives, but contemplated by the zoning table for the "Agriculture" zone. As noted earlier in these reasons, cl 39 contemplates the development of land zoned "Agriculture" for purposes which are not contemplated by the zoning and planning controls for the zone generally. However, relevant amenity considerations are required to be addressed in any case under cl 13(1).

52 The proposed development is not in conflict with objective (vi) "to exclude urban development". Ms Satre considers that the proposed development is "urban development", because it involves extensive filling and construction of hard surfaces and will have a significant traffic generating potential. However, if the words "urban development" were read as including development contemplated by cl 39, it would defeat the evident purpose of the Scheme. As Mr Swift correctly observes, the size and character of the proposed development "is a function of what it is". The proposal has been designed to facilitate appropriate entry and manoeuvring for coaches and other large vehicles, as well as conventional vehicles. This requires extensive paving. The proposed building contains only uses which are contemplated by cl 39. The fact that the development would attract traffic is its self-evident purpose, as it is a motorist- and tourist-oriented development on an arterial road. However, the traffic impact assessment predicts that the traffic which would be attracted to the

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development is traffic already on the road and traffic from approximately 400 nearby residences.

53 The proposed development is not in conflict with objective (viii) "to discourage ribbon development along Caves Road … and maintain the rural ambience of transport corridors generally", and does not "create the potential for ribbon development" contrary to cl 39(c). The Tribunal accepts Mr Swift's evidence that the development does not constitute, or create the potential for, ribbon development, as it is within an "existing urban context", namely Abbey. Moreover, the development is a self­contained facility. It is not likely to attract other development capable of approval in the "Agriculture" zone so as to create a "ribbon". Finally, although Caves Road is an important tourist road and certainly has a rural ambience further to the west of the site, that cannot be said of the site and its immediate context, which has a mixed character.

54 The other objectives and the policies of the "Agriculture" zone are not relevant to the proposed development. The development is not, therefore, in conflict with any of them.

Paragraph (d) – Visual Management Policy

55 The site is not within the "Caves Road Visual Management Policy" and, therefore, an opinion does not have to be formed in relation to par (d).

Paragraph (e) – Comments from Main Roads

56 The Tribunal has considered the comments and advice of Main Roads in its letter to the Shire in accordance with par (e).

Paragraph (f) - Submissions

57 Finally, the Tribunal has considered each of the submissions received pursuant to cl 12 as well as the petition. The submissions and petition in opposition to the application appear to raise three principal concerns, namely, traffic and safety issues, amenity impacts, particularly due to hours of operation, and the economic impact of the proposal on existing roadside service providers.

58 In relation to traffic and safety, as noted earlier, Main Roads has no objection to the proposal, subject to a condition that the access and egress to and from Caves Road must be designed and constructed in accordance with its requirements. The Shire has not raised any issue in the proceedings about traffic and safety.

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59 The Shire, through the evidence of Ms Satre, contends that the "proposed development is of an intensity and nature that will conflict with the surrounding land uses given the significant increase in noise and traffic generated as a direct consequence of the development", in the context of cl 13(1)(h) of TPS 20 which requires consideration of "the relationship of that development to development on adjoining land or other land in the locality". The Tribunal does not consider that the proposal would have an unacceptable impact in terms of residential amenity. Importantly, the proposed development is separated from residentially zoned land by Caves Road, which is a major road. The principal elements of the development are well set back from Caves Road. The Shire has properly proposed a number of "without prejudice" conditions, such as the requirement for approval and implementation of a landscape plan (including a 3.0 metre wide vegetated buffer along the street frontage), a dust management plan, and a lighting and signage strategy, which would appropriately regulate the development and minimise any adverse impacts on residential amenity. The Shire does not propose a limitation on hours of operation.

60 The issue of "demand" for the development has been assessed in the context of cl 39(a) above. As Mr Hardy correctly submits, economic impact on other roadside service providers is not a relevant town planning consideration, unless the development under assessment would put into jeopardy shopping facilities presently enjoyed by the community or planned for it and would not make good the resultant community detriment: Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675. As Stephen J, with whom Gibbs, Mason and Aickin JJ agreed, said in Kentucky Fried Chicken at 687:

"[T]he mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration."

61 There is no evidence that the proposal would put into jeopardy existing or planning shopping facilities which would not be provided by the proposal.

62 It follows that the proposed development is capable of approval under cl 39 of TPS 20.

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Should the development be granted approval in the exercise of planning discretion having regard to provisions of the Scheme, the Rural Strategy, the Urban Strategy and SPP 6.1?

Clause 13 of TPS 20

63 Clause 13(1) of TPS 20 requires the Shire (and the Tribunal on review), in determining applications for planning consent, to take into consideration such of the nominated matters as are of relevance to the development the subject of the application. The Shire contends that the application warrants refusal in the exercise of planning discretion on account of four of these considerations.

64 First, the Shire focuses on par (e), which requires consideration of "the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of [the] development". Ms Satre is of the opinion that the bulk, scale and density of the proposed development "is in sharp contrast to the low density residential (R15) development and agricultural land uses in the locality". She considers that the external appearance of the development is "excessive and will have an adverse impact on the visual amenity of the locality which is characterised by low-scale built form, significant areas of vegetation and in parts, open vistas of agricultural land". Mr Swift disagrees. He points to the mixed character of the immediate locality and the height and setback of the proposed development, and considers that the "built form of the development will be appropriate to the local context".

65 The Tribunal does not consider that the proposal would have an unacceptable impact on the visual amenity of the locality. The development is single storey with a maximum ridge height of 6.0 metres. A feature portico with a height of approximately 7.5 metres is proposed to occupy approximately 5% of the building footprint. The proposal is, therefore, compliant with the maximum height control of 10.0 metres prescribed by cl 47(2) of TPS 20. The Tribunal has little hesitation in accepting Mr Swift's opinion that "the building will not appear visually dominant or obtrusive when viewed from Caves Road". Furthermore, as noted earlier, the Tribunal accepts Mr Swift's evidence that the size of the proposed development is a function of what it is, namely a well­designed, integrated, motorist­ and tourist­oriented facility that caters for coaches, large vehicles, and cars.

66 Second, in its Statement of Issues, Facts and Contentions and in Ms Satre's written evidence, the Shire focuses on par (f), which requires consideration of "the size and shape of the land to which the development

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application relates, the siting of any building or works thereon and the area to be occupied by that development". However, it became apparent that the relevance of this consideration was based on a misunderstanding as to the location of the development within Lot 12. This consideration was ultimately not pressed by the Shire.

67 Third, the Shire focuses on par (h), which requires a consideration of the "relationship of [the] development to development on adjoining land or on other land in the locality". As noted earlier, Ms Satre considers that the proposed development will contribute to ribbon development of an urban nature along Caves Road and is of an intensity and nature that will conflict with the surrounding land uses. Mr Swift disagrees, noting that the development is properly characterised as "an infill development" in an urban context.

68 Earlier in these reasons, the Tribunal rejected the contention that the development is or would contribute to "ribbon development". Although it is correct to say that the development is of a nature or character that is different to land uses in the vicinity, the difference is due to the planning control in response to which the development was formulated and submitted, namely, cl 39 of the Scheme. While an application which satisfies cl 39 could and should appropriately be refused in the exercise of planning discretion in circumstances where it would have an unacceptable impact on adjoining or other land in the locality, the Tribunal is satisfied that the proposed development would not have an unacceptable impact.

69 The traffic impact assessment considers that the patronage of the proposal would be mainly associated with traffic in transit on Caves Road and the population of the residential catchment area. The prime residential catchment area comprises approximately 400 dwellings between the northern side of Caves Road and Geographe Bay. The Shire has not questioned the correctness of this analysis, nor has it presented any qualified evidence to establish that the noise of the proposal would have an unacceptable impact on other land. The Tribunal is satisfied that the relationship of the development to other land in the locality is acceptable, given its likely patronage, the physical separation between the principal parts of the proposal from adjacent residential development by setback within the site and Caves Road, and proposed conditions of approval.

70 Finally, the Shire focuses on par (t), which requires consideration of "the public interest". However, having reviewed the objections to the

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application, for reasons discussed earlier, the Tribunal is satisfied that the application is not contrary to the public interest.

Rural Strategy

71 The rural strategy, which was adopted by the Shire in 1992, identifies the site as within sub­precinct 1B which "is envisaged as containing the substantive expansion of the Busselton townsite": cl 4.2.4.1. However, Ms Satre emphasises that cl 4.2.4.2 identifies desirable land uses as those consistent with "current zonings and provisions of the [Scheme]". She contends that the proposed development is not consistent with the "Agriculture" zoning under TPS 20. However, for reasons set out earlier, the proposal is consistent with cl 39, which applies in certain parts of the "Agriculture" zone. The proposal is consistent with the Rural Strategy.

72 Moreover, a draft revised Rural Strategy is on exhibition until 15 June 2006. Consistently with the strategic vision expressed in 1992 that the subject locality would contain "the substantive expansion of the Busselton townsite", the draft Rural Strategy does not consider the site as rural land. Although Mr van der Kooy correctly submits that little weight can be attributed to the draft Local Rural Strategy, given that it is still on exhibition, its strategic vision for the site (by reason of its omission of it) is consistent with the emerging strategic view expressed in the (current) Rural Strategy and in the Urban Growth Strategy.

Urban Growth Strategy

73 When Mr Swift held a pre-lodgement meeting with officers of the Shire in January 2003, the officers provided him with a copy of the Urban Growth Strategy which states that it was adopted by the Shire in May 1999. The List of Figures which forms part of the Table of Contents of the document provided to Mr Swift includes "Plan 3: Busselton ­ Indicative Growth Strategy". This plan, which forms part of the document provided to Mr Swift, identifies the site and adjoining and adjacent properties presently zoned "Agriculture" as "urban deferred". It is Mr Swift's evidence that the Urban Growth Strategy document which was provided to him "has been proffered by the [Shire] as the relevant version of the document, for use by proponents, the community and Government agencies for at least the past 3 years". When asked by Mr Hardy to respond to this evidence, Ms Satre stated that she could not comment on it, and that she could not be certain as to what document has been circulated by the Shire from 2004 to March 2006.

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74 The Shire sought to tender a document entitled Busselton Urban Growth Strategy as the document adopted by the Shire in May 1999. This document is identical to the document provided to Mr Swift, except that it does not refer in the Table of Contents to the Indicative Growth Strategy and does not contain that Strategy as part of the document. Ms Satre gave evidence that, at the time the Shire adopted the Urban Growth Strategy, it did not retain a copy of the adopted document with the resolution. However, the Shire apparently forwarded a copy of the Strategy to the Department of Planning and Infrastructure. Ms Satre requested the Department to provide a copy of the document on its file, which she received in March 2006 and which does not contain reference to the Indicative Growth Strategy. Ms Satre considers that, although the Indicative Growth Strategy was apparently printed for some time together with the Urban Growth Strategy, it does not form part of the adopted Strategy.

75 The Tribunal was not prepared to infer, on the evidence, that the document sought to be tendered by the Shire was the adopted Urban Growth Strategy. Although the evidence established that the document was on the Department's file, it did not establish when the document was received. A covering letter from the Shire was not tendered. Moreover, the fact that the other version of the document has been provided by the Shire to developers, the community and Government agencies for at least three years militates against drawing the inference sought by the Shire.

76 Ultimately, as counsel for both parties agreed, this review does not turn on a determination as to which of the two versions is the adopted Strategy. Even if the Shire had established that the document it sought to tender was the adopted Strategy, the Tribunal is satisfied that the present application for review should succeed. The elements of the Strategy emphasised by the Shire are its statement that "the corner of Bussell Highway and Caves Road represents a logical boundary to urban residential development to the west" (cl 3.1), and the statement that urban expansion to the west of the Busselton townsite has "major implications to the character, function and quality of the Busselton urban form", including encroaching "on the rural and scenic nature of the area between Busselton and Dunsborough along Caves Road". Ms Satre considers that the proposal would remove "a unique component of the Shire's character" and "erode the separation between Busselton and Dunsborough, which is characterised by a green belt of agricultural land on the southern side of Caves Road". However, the proposal is not "urban residential development", and its location across the road from such development and a short distance to the west of land undergoing rezoning to enable such

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development, is appropriate. The character of the area in the immediate vicinity of the site is mixed and, although the site now presents as rural land, the development would not materially affect the separation of Busselton and Dunsborough by a green belt. As noted earlier, the site is substantially cleared. In contrast, a wedge of trees commences at the western boundary of Lot 12 and continues essentially uninterrupted along the southern side of Caves Road to the west.

77 However, the inability of the Shire to prove which version of the Urban Growth Strategy it adopted in 1999, and the fact that it now contends that a document which it provided to developers, the community and Government agencies for a period of at least three years is incorrect, is of significant concern. Strategic planning documents, such as the Urban Growth Strategy, are material in relation to significant investment decisions and community expectations. It is essential that a local government authority which has adopted such a document know and communicate its terms correctly. The Shire needs to address this question as a matter of priority.

SPP 6.1

78 The Shire emphasises the categorisation of the site as Wetland Amenity Area, policy LUS 3.30 which provides that "rural landscape and coastal reserve buffers … between Dunsborough and Abbey will be maintained to avoid urban sprawl and to create distinct communities", and the identification of the site as a Travel Route Corridor, under SPP 6.1.

79 However, the Shire has not identified any wetland area on, or in, the vicinity of the site. The site is, as Mr Swift observed, "cleared, open, high and dry". The development would not create "urban sprawl" or undermine an appreciation that Abbey and Dunsborough are "distinct communities". The proposal does not involve "urban development" of the nature contemplated for the urban areas of Abbey or Dunsborough. Rather, it is properly responsive to a provision of the applicable planning scheme which provides for motorist­ and tourist­oriented development on "Agriculture" zoned land.

80 Finally, for reasons already discussed, the proposal would not have any material impact on Abbey and Dunsborough being viewed as distinct communities. Indeed, the site is directly across the road from the residential suburb of Abbey, and is a short distance to the west of land being rezoned to form part of that suburb.

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Conclusion

81 The development application, the subject of this review, proposes a well­designed and well­located, integrated motorist­ and tourist­oriented facility, comprising five land uses. The proposal is capable of approval under cl 39 of TPS 20, as it involves development for the purposes of refreshment rooms (bakery and tourist meals lounge), tourist facility (specialty tourist retail), and service station, and a workshop which is for the purpose of providing services to motorists, and satisfies each of the conditions set out in cl 39(a) ­ (f).

82 Having particular regard to the considerations prescribed in cl 13 of TPS 20, the Rural Strategy, the Urban Growth Strategy, and SPP 6.1, the application warrants approval in the exercise of planning discretion. The physical characteristics of the development and its relationship to other land in the locality are acceptable. It would not materially affect the "green belt" separation of the communities of Abbey and Dunsborough.

Conditions

83 The Shire proposed a condition that the specialty tourist retail use "shall only include interpretive material and goods that have been handled, treated, processed or packaged from primary products grown, reared or produced in the locality at all times and to the satisfaction of the Shire". The Tribunal considers that this would be an overly restrictive condition. A condition which restricts the specialty tourist retail use to the display and sale of locally-produced and locally-associated products and products needed or desired by people who are in the process of touring is an appropriate and sufficient limitation.

84 A large number of conditions proposed by the Shire use the words "to the satisfaction of the Shire". In each case, the applicants seek the insertion of the word "reasonable" before "satisfaction". Although ultimately the Shire agreed to the applicants' proposal, the Tribunal considers that the use of the word "satisfaction" is not sufficiently certain and that the insertion of the word "reasonable" would only add to the uncertainty of what is meant by "satisfaction". The word "satisfaction" is used in the Shire's draft conditions for two different purposes, both of which are apparent from draft condition 10 which, as proposed by the Shire, is as follows:

"A Dust Management Plan to be prepared and submitted to the satisfaction of the Shire, prior to the issue of a building licence and implementation of that Plan to be undertaken at each and

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every stage of the development of the site to the satisfaction of the Shire of Busselton."

85 Where first used, the word "satisfaction" is intended to refer to "approval" of the Shire. The Tribunal accepts that incidental aspects of a development may properly be the subject of a condition which requires the preparation of a plan, detail or specification for approval by the original decision­maker and implementation of the approved plan, detail or specification. A condition cannot lawfully defer, for later consideration, a non-incidental aspect of a development and cannot "leave open the possibility that development carried out in accordance with the consent and condition will be significantly different from the development for which the application was made" (Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 per Priestley JA; see Randall and Town of Vincent [2005] WASAT 147 at [14] ­ [22]). The determination of whether an aspect of a development is incidental is one of fact and degree in the circumstances of each case. For example, in this case, dust mitigation and landscaping are incidental aspects of the proposed development. However, in the case of a concrete batching plant, dust is likely to be a central aspect, and in certain cases, landscaping might well be a central aspect of the development in relation to which the consent authority needs to be satisfied at the time it grants development approval.

86 In circumstances where it is appropriate for a condition to require approval of a plan, detail or specification, in relation to an incidental aspect of a development, by the original decision-maker, the condition should specify "approval", rather than "satisfaction". In such circumstances, the discretion of the original decision-maker not to approve the plan, detail or specification is necessarily limited by the specific aspect in question. The Tribunal assumes that an original decision­maker, the approval of which to an incidental aspect of a development in the form of a plan, detail or specification is required by a condition imposed by the Tribunal, will properly and reasonably approach its task within the confines of the condition.

87 Proposed condition 25 requires that the development be designed and constructed "to allow easy access for people with disabilities to the satisfaction of the Shire". Although the intention of the condition is understandable, it is preferable for such a condition to be expressed with reference to the applicable Australian Standard. However, the nature of the development does not warrant further approval being obtained from the Shire in this respect. Furthermore, a condition requiring satisfaction or approval that the development allows easy access for people with a

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disability might well result in a determination which is not final, as the satisfaction or approval might materially affect the ultimate form of the development. The Tribunal has deleted the requirement for satisfaction.

88 The second sense in which the word "satisfaction" is used is in place of, or as an aid to, enforcement of a condition. The use of the word "satisfaction" in this sense exceeds the appropriate function of a planning consent authority. Conditions of approval must be expressed with sufficient certainty so that they are able to be enforced. However, enforcement of conditions is a separate matter to the imposition of conditions.

89 The Shire proposed that the landscape plan must provide for a minimum 3.0 metre wide vegetation buffer along the frontage of the site "that includes local species that have foliage from the base to the crown and mature trees at least 4 metres in height in addition to appropriate medium and ground cover plantings". The applicants consider that such a condition would require the introduction of plant species which are not indigenous to the site or locality and would "fully screen a facility that, by its nature, should be readily visible and accessible to motorists". In response, the Shire proposes that the buffer "contain endemic plant species including a mixture of trees and medium and ground cover plantings".

90 The Tribunal considers that a 3.0 metre wide vegetation buffer along the frontage of the site is appropriate and that it should contain some locally indigenous trees, although the trees should be placed such that they do not prevent the development from being readily visible and accessible to motorists. The condition as imposed reflects this conclusion.

Orders

91 The Tribunal makes the following orders:

1. The application for review is upheld.

2. Development approval for the construction and use of a facility comprising a bakery with indoor and outdoor seating, specialty tourist retail, tourist meals lounge, service station and workshop at Lot 12 Caves Road, Abbey is granted subject to the conditions in Attachment B.

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Attachment A

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Attachment B

Phil Lukin Pty Ltd & Anor and Shire of Busselton

SAT Proceedings DR 667 of 2005

Conditions of Development Approval

1. The development shall be carried out in accordance with three sheets of plans, being Project No A04004 Drawing Nos 863 ­ 201 (proposed site plan) dated 20 Dec 04, 863 ­ 202 (proposed floor plan) dated 20 Dec 04, and 863 ­ 203 (elevations) dated 17 Dec 2004 by Cardno BSD, except as varied by the following conditions.

2. A building licence application under the provisions of the Local Government Miscellaneous Provisions Act 1960 must be submitted to and approved by the Shire prior to the commencement of any on­site works whatsoever.

3. If the development is not substantially commenced within three years of the date of this development approval, then this development approval lapses.

4. Occupation or use of the development shall not occur until the Shire has issued, to the owner, a written Permit to Use for the development.

5. The development the subject of this approval is limited to a bakery, specialty tourist retail, tourist meals lounge, service station and workshop and associated parking areas. The specialty tourist retail use is limited to the display and sale of locally­produced and locally­associated products and products needed or desired by people who are in the process of touring.

6. Plans submitted with the building licence are to show natural and finished ground levels and finished floor levels.

7. A geotechnical report covering the development area being prepared by the applicant at the applicant's cost. The report to be lodged with the building licence application, together with certification from a structural

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engineer that the design is suitable for the site conditions as outlined in the geotechnical report.

8. Filling of the site, other than that directly necessary for the development as approved under a building licence, is prohibited.

9. A Drainage Management Plan shall be prepared and submitted for the approval of the Shire prior to issue of the building licence. The approved Drainage Management Plan shall be implemented prior to issue of a Permit to Use.

10. A Dust Management Plan to be prepared and submitted for the approval of the Shire prior to issue of a building licence and implementation of that Plan to be undertaken at each and every stage of the development.

11. The provision on site of a minimum number of 138 car parking bays. The parking areas, driveways and points of ingress and egress, including crossovers to be designed, constructed, drained and marked to the specifications of the Shire, and thereafter maintained. Details to be submitted with the building licence application.

12. A minimum of two disabled parking bays (included in the total of 138), located convenient to the building entrance and with a minimum width of 3.6 metres, to be provided. Details to be submitted with building licence application.

13. The provision of bicycle parking facilities. Details to be submitted with building licence application.

14. The access from and egress to Caves Road must be designed and constructed in accordance with Main Roads WA's requirements.

15. The proponent shall construct (at no cost to the Shire) a dual use/pedestrian pathway to the specifications of the Shire which will link the site to Lot 34 Bussell Highway corner Newtown Beach Road, prior to issue of a Permit to Use.

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16. A lighting and signage strategy shall be submitted for the approval of the Shire prior to issue of a building licence. Lighting and signage on site shall at all times be in accordance with the approved lighting and signage strategy.

17. The colour of the roof and wall materials being in accordance with the Shire's adopted policy on "The use of Reflective Building Materials".

18. A Landscape Plan shall be submitted for the approval of the Shire prior to the issue of a building licence. The Plan shall:


(a) include the location and type of any fencing and paving to be installed;

(b) provide details of the location of all plants proposed to be removed, retained and/or planted;

(c) provide a plant schedule for all plants proposed to be removed, retained and/or planted nominating each species, the number and spacings of plants, the size of each plant at the time of planting together with the anticipated height of each plant at maturity;

(d) include the adjoining road verge;

(e) provide for planting of trees within the parking area(s) and retention of existing vegetation along the southern boundary of the site; and

(f) provide for a minimum 3.0 metre wide vegetation buffer along the frontage of the site comprising a mixture of locally-indigenous trees and medium and ground cover plantings, with the trees placed such that they shall not prevent the development from being readily visible and accessible to motorists travelling along Caves Road.


19. Landscaping and reticulation to be established in accordance with the approved Landscape Plan prior to issue of a Permit to Use and thereafter maintained on the

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site and, if agreed to by Main Roads WA, on the adjoining road verge.

20. All green waste generated on site from construction works the subject of this approval are, where practical, to be processed and reused on site.

21. The development being connected to a reticulated water supply prior to issue of a Permit to Use.

22. The development being connected to a reticulated deep sewer prior to issue of a Permit to Use.

23. The provision of a suitably screened bulk bin area to the specifications of the Shire prior to issue of a Permit to Use. Details to be submitted with the building licence application.

24. Where petrol, benzine or other inflammable or explosive substances or grease, oil or greasy/oily matter is likely to be discharged, a sealed wash down area and a petrol and oil trap must be installed. Such a system to be connected to an approved leach drain system prior to issue of a Permit to Use. Details to be submitted with the building licence application.

25. The development being designed and constructed to allow easy access for people with disabilities. Details to be submitted with the building licence application.

26. No goods or materials being stored either temporarily or permanently in the parking, footpath or landscape areas of within access driveways.

27. Prior to the issue of a building licence, the applicant shall provide a bond to the value of $10 000 with the Shire of Busselton. The bond may be in the form of cash, cheque or bank guarantee and is a performance guarantee against satisfactory completion of the conditions of this Planning Consent. The performance guarantee will be refunded in full immediately the outstanding works are complete/established as appropriate to the conditions. Any such bond is to be accompanied by a written authorisation from the owner of the land that the Shire may enter the site to complete or rectify any outstanding work. The Shire will recover from the bond, or part of the bond, as appropriate, the cost to the Shire, including administrative costs, of completing or rectifying any outstanding works.

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I certify that this and the preceding [91] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR D R PARRY, SENIOR MEMBER