PRIMEWEST MANAGEMENT LTD and CITY OF SWAN
[2010] WASAT 2
•11 JANUARY 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PRIMEWEST MANAGEMENT LTD and CITY OF SWAN [2010] WASAT 2
MEMBER: MR M SPILLANE (MEMBER)
HEARD: 15 JULY 2009 - FINAL SUBMISSIONS ON CONDITIONS 8 SEPTEMBER 2009
DELIVERED : 11 JANUARY 2010
FILE NO/S: DR 93 of 2009
BETWEEN: PRIMEWEST MANAGEMENT LTD
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning Transport depot General Rural zoning Consistency with General Rural zoning objectives Ordinary and proper planning Impact of proposed transport depot on amenity
Legislation:
Building Reguilations 1989 (WA), reg 20
City of Swan Local Planning Scheme No 17, cl 4.2, cl 4.2.11, cl 4.2.23, cl 10.2, cl 10.7, Sch 1
Contaminated Sites Act 2003 (WA), s 58, s 58(6)
Land Administration Act 1997 (WA), s 195, s 196
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Result:
Development application granted with conditions
Category: B
Representation:
Counsel:
Applicant: Mr D Schwartz (Representative)
Respondent: Mr C Slarke
Solicitors:
Applicant: Primewest Management Ltd
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Huachong Development Pty Ltd and WAPC [2008] WASAT 188
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application before the Tribunal was for the review of the refusal by the City of Swan for a transport depot.
The reason for refusal was that the proposed transport depot was considered an inappropriate land use so close to an established residential area.
Both the parties agreed that the principal issues for determination were:
1)Whether the proposal gave rise to any environmental or health issues.
2)The effect on visual amenity.
3)The appropriateness of the land use in the locality.
In considering the matter, the Tribunal found that in respect of the use as a transport depot, there were not any environmental or health issues raised which would prevent the development.
In respect of the effect on visual amenity and whether a transport depot was an appropriate land use within the locality, the Tribunal recognised that, historically, the site had originally been used as a brickworks, then a rubbish tip and, finally a golf course and was a small isolated area of rural land surrounded by other land uses and also affected by aircraft noise associated with the operation of Perth Airport.
In the circumstances, the Tribunal was of the view that, properly conditioned, the transport depot was an appropriate land use in the locality and any effect on amenity could be ameliorated by conditions, and the Tribunal granted conditional approval for the proposed transport depot.
Introduction
These proceedings involve an application brought by Primewest Management Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the refusal by the City of Swan (City, Council or respondent) on 4 February 2009 to grant development approval for a proposed transport depot at Lot 1 and Lot 137 Clayton Street, Bellevue (site).
Site and locality
Lot 1 Clayton Street, Bellevue (Lot 1) has an area of 9,311 square metres and has a split zoning.
The western portion of Lot 1 is zoned General Industry under the City of Swan Local Planning Scheme No 17 (LPS 17) with that same area being zoned Industry pursuant to the Metropolitan Region Scheme (MRS).
The eastern portion of Lot 1 is zoned General Rural under LPS 17 and Rural under the MRS. Lot 1 has a frontage and access to Clayton Street.
Lot 137 Clayton Street, Bellevue (Lot 137) has an area of 24,264 square metres. It is zoned General Rural under LPS 17 and Rural under the MRS.
Lot 137 is landlocked, with Lot 1 being its immediate neighbour to the south, over which it has the benefit of an easement.
The land to the east of the site is zoned General Rural under LPS 17 and Rural under the MRS.
The land to the west of the site is zoned General Industry under LPS 17 and Industry under the MRS.
Clayton Street abuts Lot 1 to the south and the land to the south of Clayton Street is zoned Residential Development under LPS 17. The land abutting Lot 137 to the north is reserved under the MRS for 'parks and recreation'.
Lot 134 Clayton Street, Bellevue, the adjoining property immediately to the west of Lot 137, has already received approval for a transport depot and is undergoing siteworks to facilitate that development.
Lot 137 is substantially cleared, being previously part of a development known as The Palm Grove Golf Course.
The site and surrounding locality is impacted by aircraft noise associated with Runway 06/24 at Perth Airport. The Australian Noise Exposure Forecast (ANEF) contours associated with the use of this runway extend over the subject land and surrounding locality within the 2530 ANEF contour.
The inclusion of the site within the 2530 ANEF corridor contour limits the types of uses and development of the site as noted in Table 1 of the Land Use Planning in the Vicinity of Perth Airport Policy WAPC SPP 5.1. In particular, residential uses are not permitted by the policy.
Background and the proposed development
On 6 June 2008, an application for planning approval for a 'transport depot' was submitted to the City. The application was advertised for comment by written referral to landowners in the vicinity of the subject site, and the erection of a sign on the site. A total of 47 submissions were received, 44 being objections and three nonobjections.
The proposal was also referred to the Western Australian Planning Commission (WAPC), Department of Environment and Conservation (DEC) and Western Power. WAPC and Western Power formally advised that they do not object to the proposal.
In respect of the DEC, the respondent received a letter dated 2 April 2009 in respect of the site and Lot 134 which explained that the DEC had received a report that the site had been classified, the letter stated in part:
Category of Site investigation: Possibly contaminated investigation required
Date of site classification: 02/04/2009
Reasons for classification: This Site was reported to the Department of Environment and Conservation (DEC) under section 11 of the 'Contaminated Sites Act 2003', which commenced on 1 December 2006. The Site classification is based that information submitted to [the] DEC by March 2009.
The Site was reported because it has been historically used as a brickworks in the early 1900's and an abattoir from approximately the 1920's to the 1960's. Anecdotal evidence suggests the abattoir used abandoned clay pits, created by an earlier brickworks on the Site, storage pits for waste products, and possibly for dumping uncontrolled fill.
These land uses have the potential to cause contamination, as specified in the guideline 'Potentially Contaminating Activities, Industries and Land Uses' (Department of Environment, 2004).
No soil or groundwater investigation reports have been submitted to [the] DEC, and the quality of soil and groundwater beneath the Site are unknown.
As no reports have been submitted to [the] DEC for the Site, comment cannot be made on the suitability of the Site as a whole for any land use.
As there are grounds that indicate possible contamination of the Site, and since a suitable investigation of soil and groundwater and a risk assessment to determine the risk to human health, the environment, or any environmental value has not been carried out, further works are required to determine the contamination status of the Site and the Site is therefore classified as 'possibly contaminated investigation required'.
Pursuant to s 58(6) of the Contaminated Sites Act 2003 (WA) (CS Act), a responsible authority may not grant approval under a planning scheme for any proposed development planned where a memorial has been lodged without first seeking and taking into account advice from the DEC as to the suitability of the proposed development.
With this in mind, the Executive Officer of the Tribunal wrote to the DEC on 9 June 2009 seeking its advice as to the suitability of the site pursuant to s 58 of the CS Act for the proposed development application.
By letter of 16 June 2009 received by the Tribunal on 24 June 2009, a reply was received from the DEC which stated:
Thank you for your letter dated 9 June 2009, seeking advice from the Department of Environment and Conservation (DEC) in accordance with section 58(6) of the Contaminated Sites Regulations 2006. The advice sought relates to the suitability of the land for subdivision, amalgamation or development, as set out in section 58 of the Contaminated Sites Act 2003 (the Act).
•The classification and suitability of the land of Lot 1 Clayton Street Bellevue (Lot 1 on Diagram 75900, Volume 2092 Folio 370)
Based on the available information, the Site appears suitable for commercial/industrial land use[;] however[,] further assessment of potential contamination should be undertaken before any change to a more sensitive land use (e.g. residential housing, childcare centres).
•The classification suitability of the land of Lot 317 Clayton Street Bellevue (Lot 1 on Diagram 1358, Volume 1665 Folio 817)
The Site was reported because it has been historically used as a brickworks in the early 1900's and an abattoir from approximately the 1920's to the 1960's. Anecdotal evidence suggests the abattoir used abandoned clay pits, created by an earlier brickworks on the Site, as storage pits for waste products, and possibly for dumping uncontrolled fill.
These land uses have the potential to cause contamination, as specified in the guideline 'Potentially Contaminating Activities, Industries and Landuses' (Department of Environment, 2004).
No soil or groundwater investigation reports have been submitted to [the] DEC, and the quality of soil and groundwater beneath the Site are unknown.
From the information provided[,] it seems that there are no contamination issues that would prevent the proposed development.
As there are grounds to indicate possible contamination of the Site, and since a suitable investigation of soil and groundwater and a risk assessment to determine the risk to human health, the environment, or any environmental value has not been carried out, further works are required to determine the contamination status of the Site[,] and the Site is therefore classified as 'possibly contaminated investigation required'.
…
In an email of 14 July 2009, a copy of which was furnished to the Tribunal, the author of the DEC's letter dated 16 June 2009 wrote to the applicant stating:
I just thought I should clarify a point that might not be apparent in the letter sent to the SAT dated 16 June 2009 in reference to Lot 1 and Lot 137 Clayton Rd, Bellevue. The DEC has chemical analysis results taken from Lots 134 and 137[;] however[,] at this time[,] it has not been compiled in an 'investigation report'. We class an investigation report as one that contains not only chemical analysis of soil and groundwater but also a discussion of the results, such as the exact location of sampling locations and a description of what works are proposed and what the land will be used for in the future. So the statement 'No soil or groundwater investigations have been submitted' is correct[;] however[, it] does not mean that we do not have chemical analysis reports, which is the case in this piece of land.
[The] DEC has been informed that Lot 137 has been proposed to be used as a fully surfaced bitumen/concrete tarmac that will be used for storage of vehicles. [The] DEC believes, from the information that has been submitted, that this type of use of the land is suitable in its present state.
The paragraph that states the site '… is therefore classified "possibly contaminated investigation required" is a reflection of the lack of investigation report that is in line with the Contaminated Sites Management Series Guidelines, and should not be viewed that the land can not be used for the proposed development'.
The application was considered at an ordinary Council meeting on 5 November 2008 in which Council resolved to defer consideration of the application in order to address various issues of concern.
Public meetings were convened on 24 November 2008 and 13 January 2009 to discuss the proposal, and additional meetings were convened on 22 and 27 January 2009 at which the applicant, City staff, elected members and representatives of the Bellevue Residents' Association attended.
The Officer's Report to the ordinary meeting of Council on 4 February 2009 recommended that Council approve the proposed transport depot subject to conditions. That report described the locality as follows:
The subject Bellevue locality is characterised by a range of zonings ([that is] Residential Development; General Commercial; Private Clubs and Institutions; General Industrial; General Rural; Local Reserve Public Purposes; Regional Reserve Parks and Recreation)[;] however[,] the predominant zoning is Residential. Therefore[,] the proposed Transport Depot and existing … land uses located on the Clayton Street properties are and will continue to cause significant land use conflict unless changes are made to the zoning or appropriate land uses occurred.
Under the heading 'Surrounding Land Zonings', the report also stated:
Lots 1 and 137 Clayton Street, Bellevue are located approximately 900 metres east of Roe Highway; southeast of the freight railway line and approximately 600 metres north of the Helena River. Clayton View Primary School and Koongamia Oval are located approximately 550 metres to the east and a Regional Parks and Recreation Reserve abuts the northern boundary of Lot 137. The address of the Parks and Recreation Reserve is 'Bellevue Railway Reserve Location 8646 Purton Place Bellevue'[;] therefore[,] it is likely the MRS reservation was retained for a potential future extension to the freight railway line. It is currently utilised for drainage purposes. The City of Swan's open drainage system is orientated east-west along the southern boundary of the Reserve Lot.
The area is characterised by several different zonings under the City's LPS 17, which results in it attracting a mixture of land uses …
…
The General Industrial zoned land comprises nine (9) lots of which three (3) are reasonably large lots and the remainder are quite small in area [square metres]. Most of the lots are irregular in shape, resulting in some being 'land[]locked' ([that is] no street frontage).
The General Rural zoned land comprises two (2) lots and the eastern portion of Lot 1 Clayton Street. It is understood that the General Rural zoning is left over from the original zoning from the area.
Lot 241 Wangalla Road[,] Bellevue is one of the above General Rural zoned lots and was recently the subject of a 139 grouped dwelling and community facility development application. The application was refused by the WAPC on the basis that the location was unsuitable for residential development[,] given its exposure to aircraft noise. The applicant appealed the decision at the State Administrative Tribunal. The appeal was dismissed on grounds consistent with the WAPC's reasons for refusal.
Mr Stephen Allerding, planner, gave evidence on behalf of the applicant, and, at [6] of his statement of evidence, described the proposed development as comprising of the following elements:
a)On Lot 137 there would be a 20,000 [square metre] hardstand area to be used for the storage of new imported domestic motor vehicles, prior to the vehicles being relocated to sales yards[.]
b)The hardstand area is to be covered with a shade cloth (hail net mesh) of a height of between 5 [metres] and 6 metres. The shade cloth includes a rolled edge which extends below the fence line, to protect the vehicles[.]
c)Security down lighting will be positioned under the hail netting on top of the support poles situated approximately 5.6 [metres] apart[.]
d)On Lot 1 there will be 6,500 [square metres] of hardstand that will be used for:
i.[t]he storage of new imported domestic motor vehicles;
ii.[a] staging area where vehicles will undergo work prior to transport to sale[s] yards; and
iii.[a] loading area.
e)On Lot 1 there will be a tilt up concrete building comprising 1,000 [square metres] warehouse with 390 [square metres] office contained within the warehouse structure;
(f)[a] chain link mesh fence with electrified top rails will be erected around the perimeter of the site;
(g)[u]p to 20 car transporter vehicles (up to 19 metres long) will enter and exit the site each day (based on conditions);
(h)there will be six on[]site staff ([two] in the warehouse and [four] in the office);
(i)the use will operate between 7 am and 6 pm Monday to Friday;
(j)46 visitor or staff car park bays will be provided with 11 marked on the development plan.
Planning framework
As explained earlier, the overall site has a split zoning, with the western portion of Lot 1 zoned General Industry under LPS 17 and Industry under the MRS, and the eastern portion of Lot 1 and all of Lot 137 zoned General Rural under LPS 17 and Rural under the MRS.
LPS 17 defines 'transport depot' as follows:
'transport depot' means land and/or buildings used for the transfer of goods or persons from one road motor vehicle to another such vehicle for hire or reward or for the storage of goods delivered by road transport, and includes the maintenance, repair, garaging or parking or storage of such vehicles.
Under the Zoning Table of LPS 17, a transport depot is a 'P' (permitted) use in a General Industry zone and a 'D' (discretionary) use in a Rural zone, which means that in a General Rural zone, it is not permitted unless the local government has exercised its discretion by granting planning approval.
Clause 10.2 of LPS 17 sets out matters to which the local government is required to have regard when considering an application for planning approval.
(a)the aims, objectives and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area (including the Metropolitan Region Scheme);
(b)the requirements of orderly and proper planning …
(c)any approved statement of planning policy of the Commission;
(d)any approved environmental protection policy under the Environmental Protection Act 1986;
(e)any relevant policy or strategy of the Commission and any relevant policy adopted by the [State Government];
(f)any Local Planning Policy adopted by the [Council] under clause 2.4 … and any other plan or guideline adopted by the local government under the Scheme;
…
(j)whether there would be a detrimental impact on the streetscape;
(k)the compatibility generally of a use or development with its setting;
…
(m)the likely effect of the proposal on the natural environment and any means that are proposed to … mitigate impacts on the natural environment;
…
(o)the preservation of the amenity of the locality;
(p)the relationship of the proposal to development on adjoining land or on other land in the locality including[,] but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
(q)whether the proposed means of access to and egress from the site are adequate[,] and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;
(r)the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(w)whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;
…
(z)any relevant submissions received on the application;
(za)the comments or submissions received from any authority consultant under clause 10.1.1; [and]
(zb)any other planning consideration the local government considers relevant.
The proposed development is a 'P' or permitted use in the western portion of Lot 1, which is zoned General Industry under LPS 17, and a 'D' or discretionary use in the eastern portion of Lot 1 and all of Lot 137.
The main thrust of the respondent's argument related to that part of the proposed development located on the land zoned General Rural under LPS 17, being the eastern portion of Lot 1 and all of Lot 137.
Clause 4.2.23 of LPS 17 outlines the objectives of the General Rural zone as being to:
(a)facilitate the use and development of land for a range of productive rural activities, which will contribute towards the economic base of the region;
(b)provide for a limited range of compatible support services to meet the needs of the rural community, but which will not prejudice the development of land elsewhere which is specifically zoned for such development;
(c)ensure the use and development of land does not prejudice rural amenities, and to promote the enhancement of rural character; [and]
(d)ensure that development and land management are sustainable with reference to the capability of land and the natural resources values.
Council's decision
At its ordinary meeting held on 4 February 2009, Council resolved to refuse the application on the grounds that the proposed transport depot is considered an inappropriate land use so close to an established residential area.
Issues
The parties set out three issues for determination, which were:
1)Does the proposal give rise to any environmental or health issues which need to be addressed prior to the grant of final approval?
2)Will the development have an unreasonable adverse effect on visual amenity?
3)Is the proposed transport depot an appropriate land use in the locality?
Issue 1: Does the proposal give rise to any environmental or health issues which need to be addressed prior to the grant of final approval?
The parties called no environmental or health evidence, and this issue related solely to the site classification by the DEC referred to earlier, that, for the reasons set out in the correspondence, the land was classified 'possibly contaminated investigation required'.
Counsel for the respondent submitted that the applicant had not discharged its obligations to satisfy the Tribunal that there are no reasonable grounds that there might be an environmental or health risk. In respect of the communications received from the DEC set out above, Counsel for the respondent submitted:
… The DEC hasn't said in either letter that the land can't be used for this particular use. We are not saying that there is a definitive statement to that effect but the applicant hasn't gone as far as the DEC obviously thinks it should[,] and we maintain that the precautionary principle should be applied and that[,] until the applicant demonstrates comprehensively that there is no issue, there is still a question mark over the proposed development. (T:21, 15.07.09)
The Tribunal does not agree with the respondent on this point. The DEC, in its letter of 16 June 2009, clearly stated 'from the information provided, it seems that there are no contamination issues that would prevent the proposed development', and if further clarification was required, the email of 14 July 2009, in the Tribunal's view, puts the matter beyond doubt, where it states:
[The] DEC has been informed that Lot 137 has been proposed to be used as a fully surfaced bitumen/concrete tarmac that will be used for storage of vehicles. [The] DEC believes, from the information that has been submitted, that this type of use of the land is suitable in its present state.
The paragraph that states the site ' … is therefore classified "possibly contaminated investigation required"['] is a reflection of the lack of investigation report that is in line with the Contaminated Sites Management Series Guidelines, and should not be viewed that the land cannot be used for the proposed development.
Section 58(6) of the CS Act states that a responsible authority may not grant approval under a planning scheme for any proposed development of land where a memorial has been lodged without first seeking and taking into account advice from the DEC as to the suitability of the proposed development.
The respondent has not sought to put specific evidence before the Tribunal in respect of the matter, but rather, allowed the Tribunal and the applicant to make enquiries of the DEC.
It is noted that the two expert planners called by the parties in the matter agreed that, although the matter was relevant, it could be addressed by a condition of planning approval.
In the circumstances, having specifically sought the advice of the DEC as to the suitability of the site for the proposed development and having received the letter of 16 June 2009 and the further email of 14 July 2009, the Tribunal is satisfied on the evidence before that there is no environmental or health issue to prevent the proposed use being approved.
Issue 2: Will the development have an unreasonable adverse effect on visual amenity?
In addition to the planners, who both submitted statements of evidence and a joint witness statement, the respondent also called three neighbourhood witnesses, namely, Mr Chape, Mr Pietrucha and Mr Storm, all of whom gave evidence and addressed this issue and Issue 3, which will be addressed later.
The respondent submitted that the twostorey warehouse/office building and the hail net mesh over the hardstand area would have an inappropriate and unreasonable adverse impact on visual amenity.
Mr Doyle, the planner called on behalf of the respondent, noted that, whilst he accepted the visual impact associated with the building on the General Industrial zoned land, he could not support the visual effect arising from the development when viewed as a whole.
Mr Doyle further submitted that visual amenity is not limited to views directly obtained from residents' private properties but also included the amenity as experienced when moving in or around the area (for example, walking, driving, etc) and he considered that visual amenity would be detrimentally affected by the proposed development, notwithstanding the proposed landscaping.
The three neighbourhood witnesses were all members of the Bellevue Residents and Ratepayers Association, one being the President, one the VicePresident and the third a committee member. Their objections in respect of visual amenity related largely to the impact on what they described as the 'residential locality' and submitted that a proposal such as the present one was best suited in an industrial area in which, it must be noted, part of this development is so located.
Mr Allerding, the planner called on behalf of the applicant, said that, given the separation from residential areas by the existing vegetated parks and recreation buffer to the north, together with the proposed masonry brick screen wall and the strip of mature vegetation proposed on the eastern boundary and Clayton Street, the proposed development would be softened when viewed from residential vantage points and was a reasonable approach. Mr Allerding submitted that the site is presently unkempt and contains dilapidated buildings that do little to contribute to the amenity of the area.
As is commonly the case, the interface between different zones such as Residential on the one hand and Industrial and/or Rural on the other regularly presents areas of conflict both for planners and the Tribunal. This fact was specifically identified by the officers of the respondent when, in their report to Council, they stated:
The subject Bellevue locality is characterised by a range of zonings ([that is] Residential Development; General Commercial; Private Clubs and Institutions; General Industrial; General Rural; Local Reserve Public Purposes; Regional Reserve Parks and Recreation)[;] however[,] the predominant zoning is Residential. Therefore[,] the proposed Transport Depot and existing … land uses located on the Clayton Street properties are and will continue to cause significant land use conflict unless changes are made to the zoning or appropriate land uses occurred.
Although not referred to by either of the planning witnesses, counsel for the respondent referred the Tribunal to the 'Midland Place Plan' which covers the site in question and which was initiated in or about 2000/2001 and the first draft published in 2005.
Counsel accepted that the document is not at the stage when it can be called a scheme policy, as it has not been finalised or adopted. However, the respondent wished to refer to it as evidence of three things, namely:
1)that the City recognises that there are planning issues which need to be addressed in the particular locality;
2)the issues are recognised, and
3)a preliminary view has been reached as to how they might be dealt with,
and counsel explained this by stating:
There is an indication that the area within which this land falls should become a residential precinct and that the industrial areas should be on the other side of Roe Highway, but there is no clear plan yet as to how that is going to be achieved. (T:16, 15.07.09)
As for the suggestion that 'the area within which the land falls should become a residential precinct', the Tribunal noted the recent decision in Huachong Development Pty Ltd and WAPC [2008] WASAT 188 which found that residential development on the adjoining Lot 241 Clayton Street, Bellevue was refused principally because the residential development proposed was materially inconsistent with State Planning Policy No 5.1 – Land Use Planning in the Vicinity of Perth Airport (SPP 5.1).
The site the subject of this review is also affected by SPP 5.1 in a similar way, and it was acknowledged that residential development would not be possible on the review site for the same reason.
In the present case, that part of the development located on the western portion of Lot 1 and zoned General Industry, that is, the twostorey warehouse/office building, is a permitted use, with the land immediately to the west abutting the site also zoned General Industry and having an identical use already approved and under construction.
Given the proposed development's location with industrial uses immediately to the west, a substantial parks and recreation reserve to the north, a small rural remnant to the east and Clayton Road to the south, together with the proposed landscaping and buffers, the Tribunal is of the view that the development from a visual amenity aspect will be acceptable and any possible issue can be effectively ameliorated by the conditions proposed.
Issue 3: Is the proposed transfer depot an appropriate land use in the locality?
Mr Doyle, the planning witness for the respondent, at [9.3.2] of his statement of evidence, stated:
… The western section of the locality is characterised by an amenity more influenced by the industrial uses located there. Currently unutilised, Lots 137 and 241 [one of which is the lot zoned General Rural in this application, and the other to the east is also zoned General Rural] continue to provide a degree of 'rural' amenity, through the provision of open spaces and vegetated areas, notwithstanding the development currently occurring on Lot 134 abutting. It is acknowledged the amenity of the locality is also affected by aircraft noise associated with the operation of Perth Airport, located approximately 6 kilometres south[-]west of the Land.
In respect of the portion of the development located on the land zoned General Industry, Mr Doyle stated, at [9.2.1] and [9.2.2]:
The office, warehouse and car parking components of the 'Transport Depot' are proposed to be located within the 'General Industrial' portion of Lot 1 …
In my opinion, the aspects of the proposed development located within the 'General Industrial' zone satisfy the objectives detailed in Clause 4.2.11 of LPS 17.
It was clear from all of the evidence before the Tribunal that the principal issue in respect of appropriate land use related to the land zoned General Rural.
Clause 4.2 of LPS 17 states:
The objectives of the zones are set out under the respective headings in this clause. Without limiting their application to any discretionary decision, it is intended that the objectives will be applied by Council to determine the appropriateness in a particular zone of discretionary uses, or those uses not listed in the Zoning Table.
The respondent submitted that the proposed transport depot was not appropriate because it failed to satisfy the objectives of the General Rural zone.
Mr Doyle stated that, in his opinion, it failed to satisfy three of the four objectives of the General Rural zone, and on the fourth it was neutral.
The first General Rural zone objective, at cl 4.2.23(a) of LPS 17, is to:
facilitate the use and development of land for a range of productive rural activities, which will contribute towards the economic base of the region;
Mr Doyle said that the proposed development did not satisfy this objective because it was not apparent that it would facilitate the use and development of land for a range of productive activities. Mr Allerding did not specifically address that objective.
The Tribunal agrees with Mr Doyle that the proposed development would not satisfy objective (a) of the General Rural zone because it is not apparent that it would facilitate the use and development of land in the region for a range of productive rural activities.
The second General Rural zone objective, at cl 4.2.23(b) of LPS 17, is to:
provide for a limited range of compatible support services to meet the needs of the rural community, but which will not prejudice the development of land elsewhere which is specifically zoned for such development;
Mr Doyle was of the opinion that the proposed development also failed this second objective as, in his opinion, it is not considered to support the local rural community and may prejudice the development of Industrial zoned land for a transport depot where it is a permitted use.
Mr Allerding again did not address this matter specifically.
Although the Tribunal agrees that the proposed development would not appear to provide a compatible support service to meet the needs of a rural community, there is, in effect, no rural community in the area, which is an issue the Tribunal will address later. The Tribunal does not agree with Mr Doyle that the proposed development may prejudice similar development on Industrial zoned land where such development is a permitted use, as no evidence was given in this regard and, Mr Doyle himself confirmed that a transport depot has been approved by the respondent on the adjoining Lot 134, which is zoned General Industry.
At worst, therefore, it would appear that the proposed development is neutral in respect of the second objective.
The third General Rural zone objective, at cl 4.2.23(c) of LPS 17, is to:
ensure the use and development of land does not prejudice rural amenities, and to promote the enhancement of rural character;
Again, Mr Doyle was of the opinion that the proposed development could not be considered to promote the enhancement of rural character, although as he stated, the Rural zoned land only provides 'a degree of rural amenity' and was also affected by aircraft noise.
Neither he nor Mr Allerding addressed the factors as to why the proposed use/development would or would not prejudice rural amenities.
The argument put forward by the neighbourhood witnesses, was that the amenity of the area in general was, in fact, residential, except to the west of the site, where it was clearly industrial.
Because the General Rural zoned land is a rural remnant, clearly cut off from other rural land, the proposed use, although maybe not enhancing 'rural character' which may or may not exist, would not, in the Tribunal's view, unduly prejudice any rural amenities as they exist in the area.
The fourth General Rural zone objective, at cl 4.2.23(d) of LPS 17, is to:
ensure that development and land management are sustainable with reference to the capability of land and the natural resource values.
In respect of this particular objective, Mr Doyle confirmed that, as the land was previously used as a rubbish tip where uncontrolled fill was placed and there is therefore a risk of site contamination or other environmental or health issues, and, in light of the land area, location and surrounding uses, he considered the capability of the land to support productive agricultural uses and/or any natural resource value, to be of minimal relevance to the consideration of the subject application, and in terms of the fourth objective, the proposed development was, in his opinion, neutral.
The Tribunal agrees that, in terms of the fourth objective, the proposed development is neutral; however, it does not agree with the fact that the capacity of the land to support productive agricultural uses and/or any natural resource value is of only minimal relevance.
Due to all of the circumstances affecting this site and the fact that any use for its primary zoned activity as General Rural is unlikely, consideration of other permitted uses (discretionary or otherwise) under LPS 17 are relevant.
The total area of General Rural zoned land in the immediate vicinity appears to compromise two lots, namely, Lot 137 the subject lot and Lot 214 Wangalla Road, which contains approximately a further 7.2 hectares of land.
Both Lot 137 and Lot 241 have been described in various reports as being 'left over' from the original zoning of the area and as a small remnant of rural land entirely surrounded on all sides by differently zoned land with multiple uses.
The objectives of the General Rural zone are not the only test to be applied under LPS 17. As outlined earlier, cl 10.2 of LPS 17 sets out matters to which Council and the Tribunal are required to have regard when considering an application for planning approval and, in the context of the present case, the Tribunal believes that both cl 10.2(k) and cl 10.2(p) of LPS 17 are particularly relevant.
Clause 10.2(k) of LPS 17 states:
the compatibility generally of a use or development with its setting;
and cl 10.2(p) of LPS 17 states:
the relationship of the proposal to development on adjoining land or on other land in the locality including[,] but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
Recognising that prior to its use as a golf course, this small isolated area of rural land appears to have been used as a brickworks and then a rubbish tip where uncontrolled fill was placed. There are limits to the potential the land now has for what one would call a traditional rural use.
This small rural remnant sits in an unusual context and the Tribunal is charged with coming to the best and preferable decision.
Mr Allerding in the experts' joint witness statement states:
It will not adversely impact on the rural amenity of the area because there is no conventional rural amenity in existence. The entire portion of land zoned for General Rural Purposes forms part of a disused golf facility that is now unkempt and dilapidated surrounded by General Industrial and Parks and Recreation zoned land, with residential to the north separated by a 40 metre Parks and Recreation Reserve and to the south, Clayton Street, in which there is already substantial General Industrial Development in existence.
In the applicant's original development application to the respondent in June 2008, it described the local area as follows:
The local land use context surrounding the rural-zoned portion of the subject land is not consistent with that which is more typically associated with the General Rural zones within the City of Swan. The zone of which it is a part comprises a much smaller area than more typical General Rural zones, and only a small number of lots land holdings. It is also more isolated from other General Rural-zoned land, being surrounded by a mosaic of residential and industrial development. The subject land has not been used for any productive form of agricultural or other typical uses associated with the General Rural zone. As such the proposed development does not take any land out of agriculturally productive use.
Other contextual differences include the fact that the use of Lot 137 and the eastern part of Lot 1 over the past decade has been rural in a fundamentally notional sense only, as the land has been an integral part of the golfing facilities that straddle the subject land and adjacent Lots 134 and 241.
The split zoning of Lot 1 and the greater similarity between the size of Lot 137 and lot sizes in the adjacent industrial area rather than the General Rural zoned land indicates further contextual differences and a clear and established relationship between the subject land and the adjacent General Industrial-zoned land.
Council's professional staff, when commenting on 'Land Use Conflict', stated:
It is acknowledged that this issue is relevant to the proposal and the adjacent Industrial zoned lots to the west. However[,] due to historic zoning and development in the area, the City is in a predicament with regard to the 'most appropriate' land use for the Bellevue locality given the SAT's and WAPC's recent determination of the proposed residential development of Lot 241 Wangalla Road. The SAT dismissed the applicant[']s appeal against the WAPC's refusal of the application for 139 Grouped Dwellings as the land is exposed to inappropriate levels of aircraft noise. Therefore, the City must acknowledge that it is unlikely that residential development will be supported on land affected by inappropriate levels of aircraft noise that is not zoned 'Residential' in the future.
The land is in close proximity to Roe Highway and therefore lends itself to industrial and transport industry type land uses. However[,] given the land[']s proximity to existing residential areas, it could be argued whether these are the most appropriate land uses for the locality. However[,] given the nature of the proposal, mainly transporting and temporary storage of new vehicles and operating within normal working hours with no retail activity on site, the use is considered innocuous and unlikely to have an adverse impact on the surrounding amenity …
The Tribunal largely agrees with this assessment.
The proposed development, which is for a use that is permitted in the General Industry zoned area of the site and permitted as a discretionary use in the General Rural zoned area of the site, is a use that is not entirely incompatible with the General Rural zone objectives, and is generally compatible within its setting (as per cl 10.2(k) of LPS 17).
Furthermore, the unusual circumstances in which this rural remnant finds itself and the relationship of the proposed development to development on adjoining land (as per cl 10.2(p) of LPS 17), in the Tribunal's view, allows the application to be dealt with favourably in line with orderly and proper planning.
To attempt to strictly define the proposal solely within the confines of the objectives of the General Rural zone without recognising the context, historical and otherwise, of the surrounding land uses, the fact that residential land use is not possible, and the fact that the site abuts other industrial land uses is not, in the Tribunal's view, consistent with orderly and proper planning.
In all the circumstances the Tribunal finds that, properly conditioned, the proposed transport depot is an appropriate land use in the locality and on the subject site in particular.
Conclusion
Having found that:
1)there is no environmental or health issue to prevent the issue being approved;
2)the development from a visual amenity aspect will be acceptable and any possible issue can be effectively ameliorated by the conditions proposed; and
3)properly conditioned, the proposed transport depot is an appropriate land use in the locality and on the subject site in particular,
the application for review will be upheld and approval for the development granted subject to the conditions outlined hereunder.
Conditions
At the start of the hearing in this matter, the respondent had, as is usual, filed and served suggested draft conditions if the applicant was successful in its application for review.
The applicant, as is also usual, had responded to those draft conditions, and there were a significant number of draft conditions in dispute.
When the matter was raised at the hearing, counsel for the respondent stated 'I think there's a good chance they (the conditions) can be agreed if we can get together and discuss them, so I suggest there be an order requiring any formal wording for the conditions to be lodged by a certain date'.
At the conclusion of the hearing, such an order was made and, by document dated 7 September 2009, titled 'The Parties' Agreed Position with Respect to Respondent's Draft Without Prejudice Conditions', the solicitors for the respondent, under a letter of the same date, filed a set of draft 'without prejudice' conditions and stated:
The parties have continued to discuss the Respondent's draft 'Without Prejudice' Conditions, and have now reached an agreed position with respect to the Conditions which should be imposed in the event that SAT grants approval to the development.
As the Tribunal has seen fit to grant approval to the development, the 41 agreed conditions set out hereunder will become conditions attaching to the approval.
Orders
1.The application for review is upheld and the refusal of the City of Swan dated 4 February 2009 is set aside.
2.Development approval is granted for a transport depot on Lot 1 and Lot 137 Clayton Street, Bellevue subject to the following conditions:
1)Prior to occupancy of the premises, the owner shall construct a 2.4 metre solid wall (brick or masonry) along the entire length of the rear boundary (north). The type of wall, design and construction will be subject to further discussion with City of Swan staff and Ward Members.
2)No vehicle in excess of 19 metres in length shall access Lot 1 or Lot 137 Clayton Street, Bellevue at any time.
3)No more than 20 vehicle movements (that is, 10 ingress and 10 egress), other than a domestic car, are permitted to and from the site per day.
4)Workshop operations and truck movements are limited to Monday to Friday between 7 am and 6 pm, public holidays excluded. Other onsite operations may take place between 7 am and 6 pm Monday to Friday (public holidays excluded) and 9 am to 5 pm on weekends.
5)The owner is to provide permanent signage on site to inform locals of potential vehicle movements.
6)Prior to the issue of a building licence, a revised car park layout plan comprising 14 marked car bays shall be submitted to the City of Swan for approval. Car bays shall measure 5.5 metres by 2.5 metres, shall be clearly marked on the ground and shall be served by a 6 metre wide paved accessway. Where the accessway abuts a building or other barrier, a minimum width of 6.5 metres is required. Disabled car bays shall measure 5.5 metres by 3.5 metres, and car bays near obstructions shall measure 5.5 metres by 2.8 metres.
7)An emergency lighting plan is to be prepared in accordance with the current Building Code of Australia requirements.
8)Prior to the issue of a building licence for the proposed warehouse on Lot 1 Clayton Street, Bellevue (Diagram 75900 Volume 2092 Folio 370) and the construction of the proposed hardstand and vehicular access area on Lot 137 Clayton Street, Bellevue (Diagram 1358 Volume 1665 Folio 817), the owners of Lot 1 and Lot 137 shall enter into a deed of agreement with the City of Swan whereby the owners:
(a)agree that they shall be responsible for any loss or damage to any person or property of any person and in particular any loss or damage to any structures or objects stored on Lot 1 and/or Lot 137 arising out of a failure in the underground water storage basin structure located within Lot 137 and adjoining Lot 134 Clayton Street, Bellevue; and
(b)indemnify the City of Swan against any loss or damage caused to any person or property of any person and in particular any loss or damage to any structures or objects stored on Lot 1 and/or Lot 137 arising out of a failure in the underground water storage basin structure located within Lot 137 and adjoining Lot 134 Clayton Street, Bellevue.
The agreement shall be prepared by the City of Swan's solicitors to the satisfaction of the City of Swan and enable the City of Swan to lodge an absolute caveat over the land. The owners shall be responsible to pay all costs associated with the City of Swan's solicitor's costs of and incidental to the preparation of (including all drafts) and stamping of the agreement and the lodgement of the absolute caveat.
9)Prior to the issue of a building licence for the proposed warehouse on Lot 1 Clayton Street, Bellevue and the construction of the proposed hardstand and vehicular access area on Lot 137 Clayton Street, Bellevue, the owner of Lot 1 shall grant to the City of Swan an access easement over Lot 1 Clayton Street, Bellevue pursuant to s 195 and s 196 of the Land Administration Act 1997 (WA) in favour of the City of Swan for the purpose of ensuring vehicular and pedestrian movement between Lot 1, Lot 137 and Lot 134 Clayton Street, Bellevue in accordance with the specifications of and to the satisfaction of the City of Swan. The owner of Lot 1 Clayton Street, Bellevue shall be responsible to pay all costs associated with the City of Swan's solicitor's costs of and incidental to the preparation of (including all drafts), stamping and registration of the easement at Landgate.
10)Use of the site for the purpose approved shall not commence until a certificate of classification is issued under reg 20 of the Building Regulations 1989 (WA).
11)The development must be connected to the Water Corporation's sewer.
12)The applicant/owner shall obtain approval from the Department of Industry and Resources for the storage of chemical/dangerous goods in accordance with the Dangerous Goods Regulations. For further advice, contact the Duty Inspector of the Explosives and Dangerous Goods Division on 9222 3333.
13)Goods stored underground within an Underground Water Pollution Control Area shall be subject to approval from the Water and Rivers Commission (Telephone 9278 0300).
14)External lighting shall comply with the requirements of AS 4282 Control of Obtrusive Effects of Outdoor Lighting.
15)Where petrol, benzene or other flammable or explosive substances, or grease, oil or similar matter is likely to be discharged, a bunded and roofed washdown area is to be provided to trap all wastes which is serviced by an approved petrol and oil separator. Detailed plans and specifications of the petrol and oil waste disposal system must be submitted, together with the building plans, prior to issue of a building licence.
16)Mechanical washdown bays are to comply with the requirements of the Department of Water Water Quality Protection Note WQPN 68 dated March 2006.
17)Car parking bays and areas designated for landscaping shall not be used for the storage, display or selling of any goods or vehicles whatsoever.
18)The premises shall be kept in a neat and tidy condition at all times to the satisfaction of the City of Swan.
19)Vehicle access onto the site shall be restricted to that shown on the approved site plan.
20)Any existing vehicle crossover not included as part of the proposed development on the approved plan shall be removed, and the verge and kerb shall be reinstated prior to the practical completion of the development to the City of Swan's satisfaction.
21)All pavements on the site must be capable of accepting anticipated loadings (including accessways, parking areas, storage and hardstands). The City of Swan will not accept any responsibility for subsequent failure of any pavement.
22)Vehicle parking areas, access and circulation areas must be sealed, kerbed, drained and maintained to the satisfaction of the City of Swan, in accordance with the approved plans.
23)All stormwater produced from this property, including subsoil drainage, is to be collected, compensated and disposed into the City of Swan's drainage system in accordance with the City of Swan's requirements. The invert level at point of connection is 21.12 (AHD).
24)A gross pollutant trap must be incorporated as part of the internal drainage system.
25)The façade of the proposed office building shall be constructed in accordance with the indicative concept elevation plan (provided at the meeting of 27 January 2009) and details of colour and texture shall be the subject of further discussion with City of Swan staff and Ward Members.
26)As the development is within the Midland District Drainage Area, a drainage contribution of $175,093.62 (GST inclusive) is required. This fee is to contribute towards the upgrade and supply of an adequate drainage service within the area. Payment shall be made prior to the issue of a building licence and prior to any work commencing on the site.
27)The stormwater drainage system shall be designed in accordance with Council's Policy C110.
28)The applicant shall submit detailed plans and specifications including the site feature survey of a licensed surveyor, levels (proposed), earthworks, drainage, crossovers, accessways, hardstands, carports, parking bays, loading bays, lighting, existing easements, pavement details, proposed service connections and compound and refuse/bulk bin areas. Such plans and specifications should be submitted with the building licence application and be in accordance with the City of Swan Property Development Design Guidelines and its relevant specifications.
29)All crossovers must be built and maintained in accordance with the City of Swan's specifications.
30)All construction works within the road reserve, including crossovers, drainage infrastructure, service adjustment, landscaping and footpath placement or reinstatement, must be built and maintained in accordance with the City of Swan's specifications. Failure to do so may result in these works being removed and reinstated by the City of Swan at the applicant's expense.
31)The applicant is to ascertain the location and depth of any services that may interfere with this development. Any adjustment to these services required as part of this approval must be arranged by the applicant prior to works commencing on the site. Any adjustment must be approved by the relevant service authorities and will be at the applicant's expense.
32)No street tree on the verge is to be removed or relocated unless approval is granted by the City of Swan. The cost of removal is to be paid prior to the issue of a building licence.
33)A full set of engineering drawings shall be lodged with the City of Swan's Engineering Section for approval prior to commencement of construction on Lot 1 and Lot 137 Clayton Street, Bellevue.
34)Security downlights shall only be illuminated, with all illumination being confined to the limits of the development or as otherwise approved by the City of Swan in writing.
35)Guard dogs used for security purposes on either Lot 1 or Lot 137 Clayton Street, Bellevue shall be professionally trained and shall only be brought onto the property during outside office hours.
36)All boundary fencing other than the rear boundary brick wall (brick or masonry) shall not exceed 3 metres in height.
37)Landscaping along the eastern boundaries of Lot 137 and Lot 1 Clayton Street, Bellevue shall be implemented within three months following the City of Swan issuing a certificate of classification for the office/warehouse building in accordance with the submitted plan date received 4 May 2009, indicating a 4 metre wide planting strip with Grevillea Olivacea planted at 1.5 metre centres.
38)Landscaping along the southern boundary of Lot 1 Clayton Street, Bellevue shall be implemented within three months following the City of Swan issuing a certificate of classification for the office/warehouse building in accordance with the submitted plan date received 4 May 2009, indicating a 4 metre wide planting strip, with Grevillea Olivacea planted at 3 metre centres and Eucalyptus Wandoo planted at 12 metre centres with a backing 1.8 metre high concrete panel screen wall with a painted black finish.
39)The drainage basin located adjacent to the western boundary of Lot 137 Clayton Street, Bellevue shall be kept clear of rubbish and weeds at all times to the satisfaction of the City of Swan.
40)The eastern portion of the internal fence) surrounding the drainage basin located adjacent to the western boundary of Lot 137 Clayton Street, Bellevue shall be set back 3 metres to the east from the edge of the drainage basin to provide sufficient area for maintenance of the drainage basin.
41)Any additional development which is not in accordance with the application (the subject of this approval) or any condition of approval will require further approval of the City of Swan.
I certify that this and the preceding [102] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER
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