POYNTER PRIMARY SCHOOL P&C ASSOCIATION INC and CITY OF JOONDALUP - [2010] WASAT 90

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: POYNTER PRIMARY SCHOOL P&C ASSOCIATION INC and CITY OF JOONDALUP [2010] WASAT 90

MEMBER: MR D R PARRY (SENIOR MEMBER)
MS M CONNOR (MEMBER)

HEARD: 17 JUNE 2010

DELIVERED : 25 JUNE 2010

FILE NO/S: DR 411 of 2009

BETWEEN: POYNTER PRIMARY SCHOOL P&C ASSOCIATION INC
Applicant
AND
CITY OF JOONDALUP
Respondent

Catchwords:

Town planning Development application Market Farmers' market Fortnightly on Saturdays between 9 am and 12 pm 15 20 stalls Primary school Parents and Citizens' Association Local reserve for primary school Proposed location of stalls in middle of primary school Customer parking in staff car park and in school drop off bays Stallholder parking on oval Due regard to the ultimate purpose intended for the reserve Traffic and parking Amenity Orderly and proper planning

Legislation:

City of Joondalup District Planning Scheme No 2, cl 2.3.2, cl 2.3.4.1, cl 3.2.3, cl 4.8.2, cl 6.8, cl 6.8.1, cl 6.8.2, Sch 1, Sch 3, Table 2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 251(1), s 252(1)
School Education Act 1999 (WA), s 142, s 142(1)(b), s 143, s 143(1)(b), s 143(3)
Shire of Dandaragan Local Planning Scheme No 7
State Administrative Tribunal Act 2004 (WA), s 31(1)

Result:

Development approval granted subject to conditions

Category: B

Representation:

Counsel:

Applicant: Mr AG Castledine
Respondent: Ms A Butterworth (Agent)

Solicitors:

Applicant: Castledine Legal and Mediation Services
Respondent: Allerding & Associates (Town Planners)

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

Grace and City of Nedlands [2010] WASAT 53
Timberlane Nominees Pty Ltd and Shire of Dandaragan [2007] WASAT 150
REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned a development application made by a primary school Parents and Citizens' Association to operate a farmers' market, consisting of up to 20 stalls selling products produced, caught, grown or raised by the stallholders, on school grounds for three hours every alternative Saturday morning. The site is a Local Reserve designated as 'Public Purpose Primary School'. Stallholders would pay a set licence fee to the Parents and Citizens' Association to be able to operate a stall and any profit made by a stallholder would belong to the stallholder. All funds raised from licence fees paid by stallholders would contribute to the educational resources and learning programs for students at the primary school.
The Tribunal considered the proposed development having due regard to:
•the ultimate purpose intended for the Local Reserve;
•traffic generation and consequent parking and noise issues;
•the preservation of the amenity of the locality; and
•the interests of orderly and proper planning.
The Tribunal found that the proposed development is acceptable and warrants conditional development approval, having due regard to each of these matters.
The farmers' market is for or ancillary to the primary school purpose of the Local Reserve as all funds raised by the collection of licence fees from stallholders will be for the benefit of the education and learning of students at the school. Furthermore, the proposal will not preclude or inhibit access to the site when it is required for school activities.
The expected traffic increase will be minor and can be easily catered for by the existing road network without any significant impact on local amenity or safety. Adequate and appropriate onsite car parking is proposed for both customers and stallholders with overflow capacity for customers in drop off bays adjoining the site. In addition, a traffic engineer proposed detailed conditions for directional signage and traffic wardens to mitigate any potential adverse amenity impacts.
The Tribunal found that the nature and scale of the proposed development, given its purpose to benefit the students at the primary school, is not beyond the reasonable amenity expectations of residents in the locality of the school. The proposal would also have positive local amenity impacts in terms of providing a convenient source of locally grown, fresh produce, within walking distance of residents, encouraging community and social interaction, and supporting the education and learning of students at the local primary school.
Finally, the Tribunal found that the limited scale and hours of the proposed development mean that it is not contrary to the interests of orderly and proper planning to locate it on the site, rather than in the Business or Commercial zones.

Introduction

Parents and other persons who are interested in the welfare of a government school may form a Parents and Citizens' Association for that school: s 142 of the School Education Act 1999 (WA) (SE Act). The objects of a Parents and Citizens' Association are to promote the interests of the school for which it is formed by, among other things, 'assisting in the provision of resources, facilities and amenities, for the school … ': s 143(1)(b) of the SE Act. A Parents and Citizens' Association 'is not to expend its funds that are in excess of administrative costs otherwise than for the benefit of students at a government school': s 143(3) of the SE Act.
On 10 July 2009, the Poynter Primary School P&C Association Inc (P&C), which has been formed for the Poynter Primary School located at No 39 Poynter Drive, Duncraig (Reserve 34149) (site) under s 142 of the SE Act, lodged a development application with the City of Joondalup (City or Council) for approval under the Metropolitan Region Scheme (MRS) and the City of Joondalup District Planning Scheme No 2 (DPS 2 or Scheme) to operate a 'farmers' market' at the site. As originally proposed, the market would operate every Saturday between 8 am and 12.30 pm, with stallholders setting up from 7 am. The market was to comprise up to 40 stalls located on the netball/basketball courts close to Griffell Way, which is a Local Access Street adjoining the site to the north. Stallholders' and customers' vehicles would travel from Poynter Drive, which is a Local Distributor Road, west into Griffell Way, south into Lionel Court, which is a Local Access Street, and then enter the school oval in the western part of the site through an existing concreted accessway. Storeholders' vehicles would park on a netball/basketball
court located close to the intersection of Griffell Way and Lionel Court and customers would park on the oval.
The P&C has adopted a detailed 'Farmers' Market Charter' (Charter) to regulate the operation of the proposed market (reproduced at Attachment A). The aims of the Charter are to:
engage and interact with the local and broader community.
provide funds for the purposes of the Poynter Primary School Parents and Citizens['] Association (P&C). All funds raised will contribute to the educational resources and learning programs for the students of Poynter Primary School.
provide a variety of high quality, local, seasonal and fresh produce for sale which is mutually beneficial and at an affordable price to the local and wider community.
The 'philosophy' of the proposed market is described in the Charter as follows:
The Poynter Farmers' Market is a site by which sellers who have organic, primary farm produce and value-added consumable products (see clause 4 of this Charter for further details), are able to sell direct to the consumer, seasonal and locally fresh produce and thereby, effectively bringing produce from the paddocktotheplate in the sale process.
Clause 4 of the Charter states that:
All products to be sold MUST be produced, caught, grown or raised by the stallholder and consistent with this Charter the following eligible products for sale include (but not exclusively) the following:
Primary Farm Produce …
Valueadded Consumable Products
Products such as oils, jams, preserves, breads, cakes, wool products and desserts whose principal ingredients are grown or produced by the stallholder. …
Organic Produce …
The P&C also proposes one beverage stall and one community service stall that would be available for community service organisations on a rostered basis.

Stallholders would pay a set licence fee to the P&C to be able to operate a stall. Any profit made by a stallholder would belong to the stallholder.
The City advertised the development application for public comment. The City received a total of 33 submissions, 31 of which were objections and two of which were in support of the proposal. On 15 September 2009, the Council refused the application for the following reasons:
(a)The proposed markets will have an adverse impact on the amenity of surrounding residents and the locality by way of additional traffic addressing the area and site;
(b)The proposed markets will have an adverse impact on the amenity of surrounding residents and the locality by way of additional noise and general disruption to adjacent residents;
(c)The frequency, location, size and operation of the proposed Markets is not consistent with the Reservation of the land for the purposes of a Primary School.
On 20 October 2009, the P&C sought review by the Tribunal of the Council's decision in accordance with s 251(1) of the Planning and Development Act 2005 (WA).
On 3 December 2009, the P&C amended the development application in a number of respects. The frequency of the proposed market was reduced from weekly to fortnightly and the operating hours were reduced from 4.5 hours between 8 am and 12.30 pm to three hours between 9 am and 12 pm, with stallholders permitted to set up from 8 am, rather than from 7 am. The number of stalls was reduced from up to 40 to between 15 and 20, and the location of the stalls was moved from the netball/basketball courts close to Griffell Way to a central quadrangle between the library, the assembly building and a classroom building. Up to 12 stalls could be located under a permanent awning in this area, with the rest on the adjoining grassed area. Whereas in the development application as originally proposed, all traffic would have to pass along Griffell Way and Lionel Court, in the amended proposal, customers would park in the 26 bay staff car park accessed from Poynter Drive and, if necessary, in 13 drop off bays on Poynter Drive, and stallholders would enter the site between the netball/basketball courts from Griffell Way, deposit their goods near the quadrangle and then park on a nearby concreted area or on the netball/basketball courts near Griffell Way
that was originally the site of the proposed market. The amendments made to the proposal in December 2009 significantly reduced its scale.
On 3 December 2009, the Tribunal invited the Council to reconsider its decision in accordance with s 31(1) of the State Administrative Tribunal Act 2004 (WA) and, in particular, to address the amended proposal. The City advertised the amended proposal for public comment. The City received a total of 64 submissions, 46 of which were objections, four were non-objections and 14 were letters of support. On 16 February 2010, the Council reconsidered its decision and confirmed its refusal of the development application for the following reasons:
(a)The proposed markets will have an adverse impact on the amenity of the surrounding residents and the locality by way of additional traffic accessing the area and site;
(b)The proposed markets will have an adverse impact on the amenity of the surrounding residents and the locality by way of additional noise and general disruption to adjacent residents.
It appears that the proposed development has, unfortunately, split the local community. In addition to passionate submissions in favour and against the proposed development, the City also received petitions in favour and against. The split is perhaps best illustrated by the fact that two adjoining neighbours who live across Poynter Drive from the site were called to give evidence before the Tribunal, one neighbour giving evidence strongly in favour of the proposed development and the second neighbour giving evidence strongly against the proposed development.

Planning framework

The site is zoned Urban under the MRS. The site is not zoned, but rather, is reserved as a Local Reserve designated as 'PublicښPurpose Primary School' under DPS 2. The site is surrounded by a low density Residential zoned area coded and developed at a residential density of R20, with attractive public open space areas.
Clause 2.3.2 of DPS 2 states that any Local Reserve not owned by or vested in the Council may be used for, among other things, 'any purpose approved by the Council but in accordance with any conditions imposed by the Council'. The site is a Local Reserve vested in the State of Western Australia and managed by the Department of Education and Training.
Clause 2.3.4.1 of the Scheme states as follows:
The Council may consider applications for Planning Approval for land within a Local Reserve but shall have due regard to the ultimate purpose intended for the Local Reserve and the matters set out in clause 6.8 ('Matters to be Considered by Council'). (Emphasis in bold added)
In his statement of evidence, Mr John Meggitt, a consultant town planner who gave evidence on behalf of the City, suggested that the proposed development should be classified as 'shop' under DPS 2. 'Shop' is defined in Sch 1 of the Scheme as 'premises where goods are kept, exposed or offered for sale by retail or hire … '. However, the Scheme contains the more specific land use classification 'markets (retail)' which is defined in Sch 1 of the Scheme as follows:
Retail premises at which goods are sold from temporary stalls in individual bays leased to or otherwise occupied by independent stallholders.
In response to a question by the Tribunal, Mr Meggitt conceded that there is a principle of town planning that where a proposed use falls within both a general and a specific land use classification, the specific classification generally applies. In the case of zoned land, this principle is reflected in cl 3.2.3 of DPS 2 which states that:
Where in the Zoning Table a particular use is mentioned it is deemed to be excluded from any other use class which by its more general terms might otherwise include such particular use.
While the proposed development might otherwise arguably be classified as a 'shop' under the Scheme, the proposed development is properly classified as 'markets (retail)' for the purposes of DPS 2.
Clause 6.8.1 of DPS 2 requires the Council, when considering a development application, to have due regard to considerations including the following:
(a)interests of orderly and proper planning and the preservation of the amenity of the relevant locality;
…
(i)the comments or wishes of any objectors to or supporters of the application;
…
(k)any other matter which in the opinion of the Council is relevant.

Clause 6.8.2 of DPS 2 states that, in addition to the matters referred to in cl 6.8.1 of the Scheme, when considering whether or not to approve a 'D' or 'A' use application, the Council is required to have due regard to considerations including the following:
(a)the nature of the proposed use and its relationship to the use of other land within 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 or objections received by the Council;
(f)such other matters as the Council considers relevant, whether of the same nature as the foregoing or otherwise.
While the proposed development does not involve a 'D' or 'A' use because the site is not zoned under the Scheme, cl 2.3.4.1 of DPS 2 requires due regard to be given to the matters set out in cl 6.8 (including the matters set out in cl 6.8.2) where relevant to a proposed development on a Local Reserve.

Issues for determination

The following four principal issues arise for determination in this review:
1)Whether the proposed development is acceptable having due regard to the ultimate purpose intended for the Local Reserve.
2)Whether the proposed development is acceptable having due regard to the relationship to the use of other land within the locality, the nature of roads giving access to the site and parking facilities available or proposed and the likely requirements for parking arising from the proposal.
3)Whether the proposed development is acceptable having due regard to the preservation of the amenity of the locality.
4)Whether the proposed development is acceptable having due regard to the interests of orderly and proper planning.
The Tribunal will address each of these issues in turn.

Is the proposed development acceptable having due regard to the ultimate purpose intended for the Local Reserve?

Mr Graham Castledine, counsel for the P&C, questioned whether due regard to the ultimate purpose intended for the Local Reserve was an issue in the review at all. Mr Castledine pointed out that, while the City's town planning officer recommended that the Council should refuse to approve the amended development application at its meeting on 16 February 2010, the officer considered that 'a relatively small growers mart, held fortnightly, that directly benefits the school can appropriately be viewed in this instance as being consistent with the reservation'. Furthermore, whereas the Council's original decision made on 15 September 2009 included as a reason for refusal inconsistency with the reservation, in its reconsideration decision made on 16 February 2010 it did not refer to the ultimate purpose intended for the Local Reserve as a reason for refusal.
However, the issue of the ultimate purpose intended for the Local Reserve was expressly raised in the City's statement of issues, facts and contentions dated 9 March 2010. Furthermore, irrespective of whether the issue was formally raised or not, in the circumstances of this case involving the proposed use of a primary school reserve for a market, the Tribunal would have due regard to the ultimate purpose intended for the reserve under cl 2.3.4.1 of DPS 2.
Ms Amanda Butterworth, a consultant town planner who appeared as agent on behalf of the City, advanced essentially three arguments as to why the proposed development is not acceptable, having due regard to the ultimate purpose intended for the Local Reserve. First, Ms Butterworth relied on the evidence of Mr Meggitt that, while occasional or irregular school fundraising activities, such as a fete or a 'charity day', would be acceptable having regard to the ultimate purpose of the Local Reserve for a primary school, the proposed development is unacceptable because it involves 'the introduction of a permanent commercial operation at the school'. Secondly, Ms Butterworth relied on Mr Meggitt's evidence that 'school sporting activities or other school activities that may have otherwise taken place within the school grounds could not be undertaken or be significantly restricted when the market is operating'. Thirdly, Ms Butterworth submitted that the proposed development is unacceptable, having due regard to the ultimate purpose intended for the Local Reserve, because the stallholders will be commercial operators seeking to make a profit and having no other relationship with the school. In support of this submission, Ms Butterworth relied on Timberlane Nominees Pty Ltd and Shire of Dandaragan [2007] WASAT 150 (Timberlane) in which the Tribunal imposed a condition on the grant of development approval for a fuel storage facility on coastal land in Cervantes that precluded fuel stored at the facility from being used to fuel vessels from or across the adjoining beach which was a Local Reserve designated as 'Parks and Recreation' under the Shire of Dandaragan Local Planning Scheme No 7. In Timberlane, the Tribunal found, at [40], as follows:
The use of Reserve 31303 for beach refuelling is inconsistent with the purpose of the reservation, both because it precludes or inhibits access to part of the Reserve for a substantial period during the crayfishing season and because the beach refuelling use is not for recreational or ancillary purpose, but rather is for a private, commercial purpose. It matters not that there are other, more attractive sections of the Reserve for people to swim, walk or otherwise recreate. The beach is available for recreational purposes and the Shire's Strategic Plan aims to enhance its attraction.

The Tribunal considers that the proposed development of a farmers' market for three hours on each alternative Saturday is acceptable having due regard to the ultimate purpose intended for the Local Reserve. The P&C's sole purpose in undertaking the proposed development is to raise funds which will contribute to the educational resources and learning programs for the students of Poynter Primary School. As noted earlier, under s 143(3) of the SE Act, the P&C may not expend its funds that are in excess of administrative costs otherwise than for the benefit of students at the school. The fact that the farmers' market would operate on a regular fortnightly basis on the school grounds and that the stallholders are themselves commercial operators seeking to make a profit and having no other relationship with the school does not alter the fundamental purpose of carrying out the development, namely, for the benefit of the education and learning of the students at Poynter Primary School by the collection of licence fees from stallholders.
Furthermore, the school grounds are not presently used for sporting or other regular activities on Saturday mornings. The proposed development does not, therefore, interfere with the ultimate purpose intended for the Local Reserve. Mr Alan Keane, the Principal of Poynter Primary School, has given permission for the P&C to carry out the proposed farmers' market development on the site. As the manager of the school, Mr Keane or a subsequent Principal may withdraw or vary
the permission if and when any part of the site used for the farmers' market is required for school activities at that time.
Finally, Timberlane is distinguishable from the present case. Whereas the refuelling activity discussed in Timberlane would have precluded or inhibited access to the Local Reserve designated as 'Parks and Recreation' for a substantial period during the crayfishing season, the proposed farmers' market development in this case would not preclude or inhibit access to the site when it is required for school activities. Furthermore, whereas the beach refuelling use considered in Timberlane was not for or ancillary to the designated purpose of the Local Reserve, but rather, was for a private, commercial purpose, the proposed farmers' market use in this case is for or ancillary to the primary school purpose of the Local Reserve, as all funds raised by the collection of licence fees from stallholders will contribute to the educational resources and learning programs for the students of the primary school. It is correct, as Ms Butterworth observed, that stallholders would have a private, commercial purpose in selling their primary farm produce, value added consumable products and organic products at the proposed market. However, the purpose of undertaking the proposed development is not a private, commercial purpose, but rather, the public purpose of benefiting students attending the school.

Is the proposed development acceptable having due regard to traffic and consequent parking and noise issues?

As Mr Meggitt observed, the principal concern expressed both by three residents who gave evidence on behalf of the City and the residents who made submissions to the City in opposition to the proposed development, was the traffic that would be generated by the proposed development and consequent parking problems and noise that might adversely affect residents in the locality of the school on Saturday mornings when the farmers' market would be operating. Mr Meggitt considered that there would be 'significant activity associated with the market in terms of the demand for the available onsite parking bays and there would be increased vehicle movements in the locality'. Mr Meggitt also expressed the opinion that, while the staff car park may be suitable for regular staff parking, it would not be suitable 'if used by market patrons, as drivers entering the car park would not know when the car park is full [and] as such they would have to reverse out of the car park as other vehicles are entering'.
Ms Lorraine Daily, who has lived across the road from the school in Griffell Way for 29 years, gave evidence about three specific concerns to do with traffic and parking. First, Ms Daily said that as there is no cemented access or road for stallholders' vehicles to travel from Griffell Way across the oval, 'they will drive through raw sand, which in turn will create a dustbowl for residents living close by' and in winter vehicles may become bogged. Secondly, Ms Daily expressed a concern that if, as the P&C intended, people wishing to park in the staff car park were invited to make a gold coin donation for doing so, customers are likely to park on surrounding roads, such as Griffell Way, in order to avoid having to pay the donation. Thirdly, Ms Daily expressed the concern that approval of the farmers' market would adversely affect her 'because of the heavy trucks going past my property Saturday mornings and Saturday afternoons'.
The P&C called Mr Darren Levey, a traffic engineer, to give evidence. In relation to the likely traffic generation from the proposed development, Mr Levey referred to the New South Wales Road Traffic Authority (RTA) publication Guide to Traffic Generating Developments, which suggests that the traffic generated by a local market would be 18 trips per stall per day for a market open between 8 am and 3 pm (seven hours). As noted earlier, the proposed development would operate for three hours between 9 am and 12 pm. Mr Levey estimated that the traffic generation of the proposed development would be in the order of 150 200 vehicle trips per day (based on 10 trips per stall). Mr Levey determined the generation rate of 10 trips per stall by dividing 18 trips per stall according to the RTA publication by seven hours, multiplying the hourly figure by the three hours proposed in the development application (resulting in 7.7 trips per stall), and then adding approximately 30% to reflect the potential effect of concentrating the market into three hours (as opposed to seven hours).
Based on the estimated traffic generation of 150 200 trips per day, Mr Levey estimated that the total additional traffic flow on Poynter Drive is likely to be no more than 90 120 vehicle trips per day on any particular road section. This would result in an increase over the existing Saturday traffic flows from 2,517 vehicle trips per day to 2,607 2,637 vehicle trips per day, which is an increase of 3.6% to 4.8%. If this additional traffic were distributed evenly across the three hours during which the market is operating, then the hourly traffic flows would increase by 30 40 trips per hour to 239 249 vehicles per hour on any particular road section on Poynter Drive. This would reflect an increase of 14% to 19% during the busiest hour. Mr Levey's calculations
were conservative, because they assumed that all customers would arrive by car, whereas he considered that it is 'likely that a significant proportion of these traffic flows would be generated from the local community' so that at least some customers would walk to the market.
Based on his analysis, Mr Levey expressed the following conclusion in relation to the traffic impact of the proposed development:
In my opinion, the expected traffic increase can therefore be classified as a minor increase, which can be easily catered for by the existing road network without any significant impact on local amenity or safety.
Clause 4.8.2 of DPS 2 states as follows:
The number of on-site car parking bays to be provided for specified development shall be in accordance with Table 2. Where development is not specified in Table 2 the Council shall determine the parking standard. The Council may also determine that a general car parking standard shall apply irrespective of the development proposed in cases where it considers this to be appropriate.
Table 2 of the Scheme does not specify a car parking standard for markets (retail). However, Mr Levey noted that, as contemplated by cl 4.8.2 of the Scheme, the Council has previously determined a parking standard for a similar development proposed to operate at a primary school on alternative Saturdays of one bay per 20 square metres gross lettable area plus one bay per stallholder. Applying the parking standard previously determined by the Council for markets (retail), the total parking provision required for the proposed development is 25 spaces for customer parking (with gross lettable area at 496 square metres) plus 20 parking spaces for stallholders. As noted earlier, the stallholders are proposed to be accommodated on the concreted area near the central quadrangle and on the netall/basketball courts accessed from the oval. Mr Levey said that there is adequate car parking for customers in the staff car park which has 26 bays. There is also a 50% overflow capacity in the 13 drop off bays adjoining the site on Poynter Drive.
Mr Levey disagreed with Mr Meggitt's concern that the staff car park is not suitable for market patrons. Mr Levey said that, while the car park appears to predate the current Australian Standard for Offstreet Car Parking (AS/NZS 2590.12004) (Parking Standard), the width of the car bays in the staff car park complies and the aisle width of approximately 7.5 metres is greater than the 6 6.5 metres required by the Parking Standard. Mr Levey also gave evidence that, if a former second driveway which is now interrupted by the school fence were marked 'no parking',
vehicles would be able to turn around within the car park and exit in a forward direction.
Mr Levey considered that Ms Daily's concern about a gold coin donation being a disincentive to customers parking in the staff car park is 'a fair point'. Mr Levey suggested that a condition of approval could be imposed to preclude charging a fee or inviting a donation for parking on the site. The P&C agreed to this suggestion.
During the hearing, the parties agreed that conditions could also be imposed to address Ms Daily's concerns that stallholders would use trucks and would create dust and other problems by driving from Griffell Way across the oval. In particular, the P&C indicated that it would accept conditions restricting stallholders to cars, vans and utilities and precluding larger vehicles, such as trucks, and requiring the accessway between the netball/basketball courts off Griffell Way to be stabilised and defined by gravel or other suitable surface treatment acceptable to the Council.
The City did not present evidence from a traffic engineer or transport planner. Having regard to Mr Levey's qualifications and experience and the proposed conditions in relation to traffic and parking, the Tribunal is satisfied that the proposed development is acceptable having due regard to the relationship to the use of other land in the locality, the nature of roads giving access to the site and parking availability.

Is the proposed development acceptable having due regard to the preservation of the amenity of the locality?

As noted earlier, the principal concern raised by residents related to traffic generation and potential parking problems and noise resulting from customers' and stallholders' vehicles. For reasons discussed earlier, the Tribunal is satisfied that there is adequate and appropriate car parking proposed for the farmers' market in the staff car park and that, if necessary, there is overflow parking available in the drop off bays. Mr Levey also made the following recommendations, which the P&C proposed should be imposed as conditions of approval:
•Provide signage within Poynter Drive, for vehicles approaching from both the north and south, directing customers to the main car park accessed off Poynter Drive.
•Provide a sign in Griffell Way, for the small number of vehicles that may approach from the west, advising that parking is provided off Poynter Drive.
•Rope off the access to the small car park off Griffell Way, with additional signage directing customers to the Poynter Drive car park.
•Provide a sign in Griffell Way to identify the access point for stallholders, but to remove this sign and rope off this access after [9 am, but as customers may arrive by 9 am, this should be 8.45 am] to ensure no customers attempt to access the site at this location.
•Provide a parking attendant to Griffell Way from 8 am to direct stallholders to the appropriate access point and parking area.
•Provide a parking attendant at the main car park from 8.45 am to ensure full utilisation of the onsite car park, and therefore reduce the extent of use of the onstreet parking spaces and verges.
The Tribunal is satisfied on the evidence of Mr Levey and having regard to his recommendations to be imposed by way of conditions, that the proposed development will not have any material adverse impact on the preservation of the amenity of the locality by reason of parking and noise.
Ms Butterworth also submitted that the proposed development is not acceptable having due regard to the preservation of the amenity of the locality, because residents purchased their properties in the expectation of only infrequent school use outside normal school hours. As Mr Richard Thomas, who lives in Poynter Drive, said, 'at no point would I have envisaged that the school be transformed into a market or commercial enterprise at weekends'.
However, the Tribunal finds that the nature and scale of the proposed development, given its purpose to benefit students at Poynter Primary School, is not beyond the reasonable amenity expectations of residents in the locality of the school. The use of school facilities for one morning of a weekend for schoolrelated activities, whether of a sporting or fundraising nature, is a reasonable incident of school use. Furthermore, whereas the development as originally proposed would have been
unacceptable in amenity terms, because of its scale (and consequent likely parking and noise impacts) and its location (stalls close to Griffell Way and all vehicles passing along Griffell Way and Lionel Court), the proposed development is acceptable in terms of the preservation of the amenity of the locality because of its significantly lesser scale, the location of the stalls centrally within the quadrangle, and the provision of adequate and appropriate car parking accessed from and on Poynter Drive.
Finally, as Mr Castledine submitted, it is relevant to note that the proposed development will also have positive local amenity impacts, including by:
•providing a convenient source of locally grown, fresh produce, within walking distance of residents in the locality;
•encouraging community and social interaction; and
•supporting the education and learning of students at the local primary school.
The Tribunal, therefore, finds that the proposed development is acceptable having due regard to the preservation of the amenity of the locality.

Is the proposed development acceptable having due regard to the interests of orderly and proper planning?

Mr Meggitt gave evidence that the proposed development is contrary to orderly and proper planning, because it is of a nature and scale that should appropriately be located within the Business or Commercial zones under DPS 2, rather than on a Local Reserve for a primary school. Markets (retail) is prohibited development in all zones of DPS 2 other than the Business and Commercial zones in which it is capable of approval in the exercise of planning discretion. Mr Meggitt noted that Sch 3 of DPS 2 specifies sites as small as 200 square metres for retail and commercial activities, and that 'the proposed Poynter Fresh retail facility, which has an area of 496 square metres, is of a similar scale to many other centres within Schedule 3'.
However, Mr Meggitt was unaware of any existing markets (retail) development in the Business or Commercial zones which operates for only three hours per fortnight. The Tribunal considers that the limited scale and hours of the proposed development mean that it is not contrary
to the interests of orderly and proper planning to locate it on the site, rather than in the Business or Commercial zones.

Conclusion

Having regard to the findings expressed earlier, the proposed development, in its amended form, warrants conditional development approval. Whereas, in consequence of its scale and proposed location, the development application as originally submitted would have been refused approval by the Tribunal because of its likely adverse amenity impacts in terms of parking and noise, the amended proposal is of a significantly lesser scale and will not have any material adverse impact on the preservation of the amenity of the locality.

Conditions

In accordance with the Tribunal's usual practice, the City was required to file and provide to the P&C a set of draft 'without prejudice' conditions of approval that it would suggest should be imposed in the event that the Tribunal determines to grant conditional approval for the proposal. The City submitted a set of 13 conditions. After discussion during the hearing, ultimately only five of these conditions were in dispute.
The first disputed condition related to whether the approval should be limited to 12 months. In Grace and City of Nedlands [2010] WASAT 53, the Tribunal observed, at [70], as follows:
Generally speaking, time-limited consents are appropriate where there is likely to be some change in the planning framework or in the character of a locality, or where there are management issues which it is appropriate to monitor after a certain period of time.
The Tribunal is satisfied that the proposed development is acceptable and that there are no management issues which it is appropriate to monitor after a certain period of time, as the conditions of approval are enforceable and will ensure that the development operates in a satisfactory manner. A timelimited consent is, therefore, not warranted in the circumstances of this case.
The City proposed conditions that would require the market to commence at 9.30 am, rather than at 9 am, operate only once every four weeks, rather than once every two weeks, and comprise a maximum of 15 stalls, rather than a maximum of 20 stalls. However, as the Tribunal is satisfied that the proposed development commencing at 9 am
and operating every fortnight with up to 20 stalls is acceptable, the conditions of approval should reflect the proposed development.
Finally, the City proposed a condition requiring the parking bays, driveways and points of ingress and egress to the staff car park to be modified and maintained in accordance with the Parking Standard. As noted earlier, Mr Levey gave evidence that the car park, while predating the Parking Standard, complies with it is relation to the width of car bays and exceeds the required aisle width. On behalf of the P&C, Mr Castledine consented to a condition being imposed that the car bays shall be marked, but otherwise opposed the condition on the basis that it is not reasonably referable to the proposed development and is, in any case, unreasonable, having regard to the nature and scale of the proposal. Mr Levey gave evidence that the condition is not warranted. The Tribunal accepts the P&C's submission that, other than in relation to the marking of the car bays, a condition requiring full compliance with the Parking Standard in all other respects is unreasonable in relation to a development application involving the use of an existing car park for only three hours every 14 days.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision made by the respondent on 15 September 2009 and confirmed on 16 February 2010 to refuse development approval for the operation of a farmers' market at the Poynter Primary School, No 39 Poynter Drive, Duncraig (Reserve 34149) is set aside and a decision is substituted that development approval is granted subject to the following conditions:
1)The approved development shall be carried out in accordance with the Poynter Farmers' Market Charter (Attachment A), except as varied by the following conditions.
2)The operating times for the market shall be Saturday mornings between 9 am and 12 pm only. Stallholders shall not commence setting up before 8 am.
3)The frequency of the market shall not exceed once every two weeks.
4)A maximum of 20 stalls are permitted. All stalls shall be located in the area identified as 'Proposed Fete 496 [square metres]' on the plan (Attachment B).
5)No amplified sound shall be permitted without the prior written approval of the City of Joondalup.
6)Customer parking of 26 bays shall be provided in the eastern staff car park free of charge and without seeking any donation for parking at all times the market is operating. Prior to the market commencing, the bays are to be marked in accordance with the Australian Standard for Offstreet Car Parking (AS/NZS 2590.1 2004) and the marking is to be maintained thereafter. The former second driveway at the northern end of the car park is to be marked 'No parking' to enable vehicles to turn around within the car park and exit in a forward direction.
7)Stallholders may only use cars, vans and utilities, but may not use larger vehicles, such as trucks, to transport goods to or from the market. All stallholder parking shall be provided on the school oval located to the west of the school. All stallholder vehicles shall enter the site between the netball/basketball courts off Griffell Way and shall be parked by no later than 8.45 am at which time the accessway is to be gated off to prevent customer access. Access to this parking area shall be prevented at all times during the operating hours of the market. Prior to the commencement of the market, the accessway between the netball/basketball courts is to be stabilised and defined, and thereafter maintained, by gravel or other suitable surface treatment acceptable to the City of Joondalup.
8)Traffic management shall be undertaken in accordance with the submitted Traffic Management Plan and amended details dated 13 July 2009 and 3 December 2009. Where there is a conflict between these two documents, the letter dated 3 December 2009 shall prevail. Directional signage and traffic wardens shall be provided as follows:
•Provide signage within Poynter Drive, for vehicles approaching from both the north and south, directing customers to the eastern staff car park accessed off Poynter Drive. Provide a sign in Griffell Way, for the small number of vehicles that may approach from the west, advising that parking is provided off Poynter Drive.
•Rope off the access to the small car park off Griffell Way, with additional signage directing customers to the Poynter Drive car park.
•Provide a sign in Griffell Way to identify the access point for stallholders, but to remove this sign and rope off this access after 8.45 am to ensure no customers attempt to access the site at this location.
•Provide a parking attendant to Griffell Way from 8 am to direct stallholders to the appropriate access point and parking area.
•Provide a parking attendant at the main car park from 8.45 am to ensure full utilisation of the onsite car park, and therefore reduce the extent of use of the onstreet parking spaces and verges.
9)Generators are not permitted to be used on site.
10)The area containing the market to be kept in a clean and tidy condition at all times during and following the operation of the market.
11)All temporary structures associated with the market shall be removed at the completion of the market.

I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER

Attachment A

Attachment B