PROCON DEVELOPMENTS (AUST) PTY LTD and METRO EAST JOINT DEVELOPMENT ASSESSMENT PANEL
[2019] WASAT 45
•28 JUNE 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PROCON DEVELOPMENTS (AUST) PTY LTD and METRO EAST JOINT DEVELOPMENT ASSESSMENT PANEL [2019] WASAT 45
MEMBER: MR P DE VILLIERS, MEMBER
MS C BARTON, MEMBER
HEARD: 27, 29 AND 30 MAY 2019
DELIVERED : 28 JUNE 2019
FILE NO/S: DR 119 of 2018
BETWEEN: PROCON DEVELOPMENTS (AUST) PTY LTD
Applicant
AND
METRO EAST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
Catchwords:
Development - Roadhouse, restaurant/tavern and tourist facilities (short‑stay accommodation) - Objectives of the Swan Valley Rural Zone - Swan Valley Planning Act 1995 (WA) - Objectives for Area B - Delineation of the locality - Character of the area - Peri-urban - Consistent with the rural character - Bulk and scale - Visual absorbance capacity - Intensity of land uses - Transitionary site - Lighting - Landscaping - Uses on site - Protection of viticulture - Spray drift - EPA Guidance Separation Distances - Department of Health Guidelines - Swan Valley Interim Planning Policy - Status of Amendment 176 - Undesirable precedent
Legislation:
City of Swan Local Planning Scheme No 17, cl 1.6, cl 4.2, cl 4.2.13, cl 4.3, cl 4.3.2, cl 10.2, Sch 1 Pt B
Metropolitan Region Scheme, cl 26(3)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 10, Sch 2 cl 67
Planning and Development Act 2005 (WA), s 257B
Swan Valley Planning Act 1995 (WA), s 6, s 8, s 15
Result:
Application for review dismissed and decision of respondent affirmed
Summary of Tribunal's decision:
In October 2017 the City of Swan received an application for the development of a roadhouse, restaurant/tavern and tourist facilities (short‑stay accommodation) at Lot 100 West Swan Road, Caversham.
The matter was considered by the Metro East Joint Development Panel (MEJDAP) in April 2018 where it was resolved that the proposed development should be refused.
In May 2018 the applicant made an application to the Tribunal seeking a review of that decision.
Following mediation, and amendments to the proposed plans, the respondent was invited by the Tribunal to reconsider its decision. On 28 February 2019 the MEJDAP reconsidered its decision based on the revised plans and determined to refuse the revised application under both the City of Swan Local Planning Scheme No 17 (LPS 17) and the Metropolitan Region Scheme. It is those decisions that were before the Tribunal in the current review.
The substantive issue raised by the parties was whether the proposed development was 'consistent with the rural character' of the locality.
This involved establishing the extent of the locality, clarifying the character of the locality and assessing the proposed development in terms of the outcomes on those questions.
In considering the proposal the Tribunal found that the bulk and scale, the intensity of the development and the proposed lighting associated with the development were not consistent with the rural character of the locality.
However, the Tribunal also undertook an assessment of the proposal in terms of the specific objectives set out the Swan Valley Planning Act1995 (WA) and, in addition, determined the status and weight to be given to both the Swan Valley Interim Planning Policy and Amendment 176 to the LPS 17.
In balancing all of the evidence before it the Tribunal concluded that the proposed development did not warrant support and the application for review should be dismissed.
Category: B
Representation:
Counsel:
| Applicant | : | Ms B Moharich |
| Respondent | : | Mr J Berson |
Solicitors:
| Applicant | : | Moharich & More |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Radha Soami Satsang Beas Australia and City of Swan [2019] WASAT 24
Spectator Investments Pty Ltd and the City of Joondalup [2006] WASAT 232
Stock and Shire of Victoria Plains [2005] WASAT 347
Tooth and City of Subiaco [2005] WASAT 317; (2005) 41 SR (WA) 198
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On or about 6 October 2017 the City of Swan (City or Council) received an application for the development of a roadhouse, restaurant/tavern and tourist facilities (shortstay accommodation) at Lot 100 West Swan Road, Caversham (subject site).
The application was referred to the Swan Valley Planning Committee (SVPC) for consideration, in accordance with s 15 of the Swan Valley Planning Act 1995 (WA) (SVP Act). The SVPC resolved to recommend that the proposed development be refused.
The Responsible Authority Report (RAR) prepared by the City recommended that the proposed development be refused and on 23 April 2018 the Metro East Joint Development Assessment Panel (MEJDAP) refused the application.
On 14 May 2018 the applicant made an application to the Tribunal seeking a review of that decision.
Following mediation the respondent was invited to reconsider its decision. The reconsideration was based on revised plans which reduced the building height, reconfigured the site plan and provided additional landscaping details.
The City referred the revised plans to the SVPC which at its meeting of 3 December 2018 resolved to recommend that the revised application be refused for the following reasons:
1.The application is inconsistent with the planning objectives for Area B as listed in the Swan Valley Planning Act 1995, specifically clauses 8.1, 8.3, 8.4, 8.5, 8.6 and 8.7; and
2.The application is inconsistent with the further clarity provided as part of the Swan Valley Interim Planning Policy.
In making this recommendation the SVPC noted that:
This area is not a buffer zone and should not become a transition zone, to the neighbouring urban zone (to the west) and is considered to be part of the core of Area 'B' along Tourist route 203. This area remains as prime agricultural land and should not be lost to inappropriate uses.
A further RAR was prepared by the City for consideration by the MEJDAP. The RAR recommended that the revised application be approved.
Given that in preparing the RAR, the City had not accepted the advice of the SVPC, and consistent with cl 26(3) of the Metropolitan Region Scheme (MRS), a RAR was also prepared by the Western Australian Planning Commissions (WAPC or Commission). The WAPC's RAR recommended that the revised application be refused.
On 28 February 2019 the MEJDAP reconsidered its decision based on the revised proposal and determined to refuse the revised application under the City of Swan Local Planning Scheme No 17 (LPS 17 or Scheme) for the following reasons:
1.The proposed development remains at a scale that presents as 'urban' as opposed to rural and is therefore considered to be inconsistent with the rural character of the immediate locality.
2.The application is considered to be inconsistent with the General Planning Objective of Part 3 of the Swan Valley Planning Act 1995 specifically:
The general planning objectives for the Swan Valley are the encouragement of the traditional agricultural and other productive uses of the area that complement its rural character, the protection of the environment and the character of the area, the reduction of nutrient levels in the Swan River and the promotion of tourism that complements the rural character of the Swan Valley.
3.Further, the application is considered to be inconsistent with the Planning Objectives for Area B of the same Act above, specifically:
8.1The protection of viticulture;
8.3The encouragement of tourist facilities provided that they do not detract from the rural character of the area;
8.4The encouragement of traditional activities of the Swan Valley and industries associated with viticulture, horticulture and cottage industry provided that they are compatible with the rural character of the area;
8.5The encouragement of the consolidation of retail and community facilities at Herne Hill, Caversham and West Swan;
8.5AThe limited expansion of existing retail and community facilities at Herne Hill, Caversham and West Swan where such facilities are required to service the local community and will not detract from the rural character of the area;
8.6The compatibility of design, siting and landscaping with the character of the area; and
8.7The discouragement of uses that are incompatible with the rural character and traditional agricultural activities of the area.
The MEJDAP also refused the revised application under the MRS for the following reasons:
1.The application is inconsistent with the intent and planning objectives of the Swan Valley Planning Act 1995, in that it is not compatible with the established rural character and would be detrimental to the amenity of the area.
2.The application is inconsistent with the operational provisions of the Swan Valley Interim Planning Policy, in that it includes land uses that are not subordinate, incidental or ancillary to the predominant rural use of the area.
3.Approval of the application may create an undesirable precedent for other development that is contrary to the planning objectives set out in the Swan Valley Planning Act 1995.
These decisions are the subject of the current review.
The amended plans dated August 2017, filed on 15 April 2019, were accepted as the plans before the Tribunal in this proceeding.
Site and locality
The subject site comprises Lot 100 West Swan Road, Caversham. It has an area of approximately 1.874 hectares, is generally triangular in shape and is situated on the western side of West Swan Road. It is bounded to the north by Suffolk Street and to the south-east by West Swan Road.
It has a frontage of approximately 256 metres to West Swan Road and 169 metres to Suffolk Street.
Along the western boundary is an easement for the Parmelia Gas Pipeline which projects approximately 5 metres into the subject site.
The subject site contains a single storey residence and associated sheds situated in the north-west corner of the property. It is largely clear of vegetation with some trees and several rows of vines close to the existing residence. Access to the site is currently provided by a crossover to Suffolk Street.
The site immediately to the west contains a recently constructed place of worship.
The subject site is located towards the edge of the rural part of Caversham which falls within the area covered by the SVP Act. The urban section of Caversham commences some 120 metres due west of the subject site.
Much of the land on the eastern side of West Swan Road is under viticulture cultivation and such uses also occur on some of the land immediately abutting the western side of West Swan Road.
The locality includes the newly constructed church immediately to the west of the subject site, a restaurant under construction to the south of the subject site, Caversham Memorial Hall approximately 500 metres to the south-west on West Swan Road, the Caversham Training Centre, and a 7-Eleven service station on the corner of Benara Road and West Swan Road.
Proposed development
The proposed development consists of a roadhouse, restaurant/tavern and tourist facilities (shortstay accommodation) comprising the following:
(a)a 24-hour roadhouse/diner comprising a 417m2 building, four fuel browsers with canopy and eleven parking bays to be situated in the north-east corner of the subject site;
(b)an integrated two storey building, located centrally towards the western boundary of the subject site, with a total floor area of 3,769m2 comprising:
(i)a tavern of 680m2 with a 30 m2 outdoor seating area. This facility is to operate from 11.00 am to 10.00 pm Monday to Wednesday and 11.00 am to midnight from Thursday to Sunday; and
(ii)35 shortstay apartments with a floor area of 3,089m2. Four serviced apartments and a gym and conference facilities are located on the ground floor with 31 serviced apartments on the upper floor.
(c)sealed access and parking areas which include 148 parking bays and five drop-off/pickup bays;
(d)separate crossovers to both Suffolk Street and West Swan Road linked by a road through the central part of the site. A deceleration lane for access into the site is proposed on West Swan Road for vehicles approaching from the south; and
(e)perimeter and internal site landscaping of approximately 8,396m2 in area. This includes the planting of vines in the 10 metre setback area to West Swan Road and the landscaping of the Parmelia Gas Pipeline easement area along the western boundary of the site. A 550m2 drainage swale for onsite stormwater detention is located in the northeast corner of the subject site.
The height of the shortstay accommodation is approximately 9.31 metres at its highest point and the structure is set back approximately 26.23 metres from West Swan Road at the closest point. The height of the roadhouse is approximately 7.97 metres at its highest point and it is set back approximately 30 metres from West Swan Road and approximately 6.16 metres from Suffolk Street.
If the parking and access areas are added, the total area covered by building and sealed areas comprises approximately 55% of the subject site with approximately 45% landscaped.
The planning framework
The subject site is zoned 'Urban' under the MRS and is located within the 'Swan Valley Rural' Zone' under LPS 17. A small truncation at the corner of Suffolk Street and West Swan Road is reserved for 'Other Regional Road' under the MRS.
City of Swan LPS
The aims of the Scheme are set out at cl 1.6 of LPS 17 and include:
(g)Promote the judicious management of natural resources of particular regional and local significance including bushland, water catchments, waterways, agricultural land and basic raw materials, and to promote the protection of air quality.
Clause 4.2 of the Scheme provides that it is intended that the objectives of the zone as set out in cl 4.2 '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 objectives of the 'Swan Valley Rural Zone' are set out at cl 4.2.13 are as follows:
a)promote the core area of the Swan Valley primarily as a horticultural, recreational, tourism and landscape resource;
b)provide for limited rural living within the Swan Valley, subject to locational, design and landscaping requirements to enhance the character and amenity of the valley and to ensure compatibility with productive rural activities;
c)recognise the occurrence of high quality horticultural soils and scarce plastic clays and to protect these resources from development which would jeopardise their current and future use;
d)ensure that the development and use of land accords with the planning objectives for Area B as specified in the Swan Valley Planning Act (2005).
Land uses are defined in Sch 1 Pt B of LPS 17. The following definitions are relevant in this review:
'restaurant' means premises where the predominant use is the sale and consumption of food and drinks on the premises and where seating is provided for patrons, and includes a restaurant licensed under the Liquor Licensing Act 1988[.]
'roadhouse' means land and buildings used for the predominant purpose of a service station but incidentally including a café or restaurant and/or a shop[.]
'tavern' means premises licensed as a tavern under the Liquor Licensing Act 1988 and used to sell liquor for consumption on the premises[.]
'tourist facilities' means facilities used or intended to be used by visitors, and includes short-stay accommodation, provision of food and refreshments, recreational activities and the sale of goods produced in adjacent rural areas[.]
Clause 4.3.2 of LPS 17, read together with the Zoning Table, has the effect that the above land uses are not permitted unless the local government, or the Tribunal standing in its shoes, has exercised its discretion by granting planning approval. The tavern, roadhouse and tourist facilities land uses require special notice (public advertising) prior to any exercise of such discretion.
The boundaries of the Swan Valley Rural Zone under LPS 17 generally coincide with the boundaries of Area B as specified in the SVP Act.
Swan Valley Planning Act 1995
The SVP Act delineates land within the Swan Valley into three areas and provides general planning objectives of the Swan Valley as a whole and provides planning objectives for each of the areas. Section 6 of the SVP Act provides:
General planning objectives
The general planning objectives for the Swan Valley are the encouragement of the traditional agricultural and other productive uses of the area that complement its rural character, the protection of the environment and the character of the area, the reduction of nutrient levels in the Swan River and the promotion of tourism that complements the rural character of the Swan Valley.
Section 8 of the SVP Act provides:
The planning objectives for any proposed development in Area B are as follows
1.The protection of viticulture.
2.The provision of water for viticulture and horticulture and the discouragement of other activities that have high water demands.
3.The encouragement of tourist facilities provided that they do not detract from the rural character of the area.
4.The encouragement of traditional activities of the Swan Valley and industries associated with viticulture, horticulture and cottage industry provided that they are compatible with the rural character of the area.
5.The encouragement of the consolidation of retail and community facilities at Herne Hill, Caversham and West Swan.
5A.The limited expansion of existing retail and community facilities at Herne Hill, Caversham and West Swan where such facilities are required to service the local community and will not detract from the rural character of the area.
6.The compatibility of design, siting and landscaping with the character of the area.
7.The discouragement of uses that are incompatible with the rural character and traditional agricultural activities of the area.
8.The extraction of basic raw materials so far as it is compatible with the character and amenity of the area and subject to the rehabilitation of the affected land.
Section 15 of the SVP Act relevantly provides:
(1)Where an application is made to the City of Swan under the local planning scheme for development approval relating to land in the Swan Valley the City of Swan, unless subsection (5) applies, is to give full particulars of the application to the Swan Valley Planning Committee.
(2)The Committee, within 42 days after the day on which it receives particulars of an application or within such longer period as the City of Swan allows, is to give to the City of Swan its advice in writing on how the application should be determined, including any conditions to which any approval should be made subject.
(3)If the Committee fails to give its advice within the time allowed under subsection (2), it shall be taken to have no advice to give on the application.
(4)The City of Swan is to have due regard to the advice of the Committee but may determine the application otherwise than in accordance with that advice.
Planning and Development (Local Planning Schemes) Regulations 2015
Clause 67 of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) isincorporated into LPS 17: reg 10 of the LPS Regulations and s 257B of the Planning and Development Act 2005 (WA). Clause 67 of Sch 2 of the LPS Regulations provides a list of matters that, to the extent relevant, the decisionmaker must have due regard to when determining a development application. This provision applies in place of cl 10.2 of LPS 17: Puma Energy Australia and City of Cockburn [2016] WASAT 36, at [36] [47]. Relevantly to this matter, those matters include:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting including the relationship of the development 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 development;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(p)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;
…
(r)the suitability of the land for the development taking into account the possible risk to human health and safety;
…
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y)any submissions received on the application;
…
(zb)any other planning consideration the local government considers appropriate.
Policy
On 22 July 2014 the WAPC adopted the Swan Valley Interim Planning Policy (Interim Policy).
The City has adopted local planning policy Pol-TP-126 Building and Development Standards - Rural Zone (Rural Zone Policy or LPP 126).
Issues
The issues for determination by the Tribunal in this proceeding were set out by the respondent in the following terms:
The issue for determination by the Tribunal is whether approval of the proposed development would be inconsistent with orderly and proper planning and the applicable planning framework, having regard in particular to:
(a)the objects and applicable provisions of the SVP Act, including the objectives for Area B of the Swan Valley which require regard to be had to whether the proposed uses are:
(i)consistent with the rural character of the immediate locality; and
(ii)a traditional activity or a use which is associated with viticulture, horticulture or cottage industry, and if they are not, whether they are nonetheless acceptable on the subject site;
(b)whether the intensity of the land uses and built form of the proposed development are consistent with the rural character and amenity of the locality; and
(c)whether approval of the proposed development would create an undesirable precedent for other land in area B of the Swan Valley.
The applicant accepted the issues put forward by the respondent.
Given that both issues (a) and (b) address rural character it is appropriate to deal with this question holistically rather than as two independent issues.
Also, the issues addressing rural character framed the criteria to be applied as 'consistent with the rural character' and the evidence adduced in witness statements and in the hearing was directed to this criteria. In fact the objectives of Area B set out in s 8 of the SVP Act establish 'compatible with the rural character' as the relevant criteria. In dealing with rural character the Tribunal will comment on this distinction.
While a number of further matters were not explicitly raised as issues they were identified in the contentions of the respondent and addressed in response by the applicant. In addition, evidence was provided by experts for both parties on these issues. The Tribunal therefore intends to address the following in its reasons:
•The SVP Act identifies in s 8 an objective which seeks '[t]he protection of viticulture'. This raises the question of spray drift.
•The application of the EPA Guidance for the Assessment of Environmental Factors Separation Distances between Industrial and Sensitive Land Uses to the roadhouse (service station).
•The Interim Policy and Amendment 176 to LPS 17. The weight to be accorded to these documents is a question requiring consideration in seeking to arrive at the correct and preferable decision in the review.
Following these considerations issue (c) (undesirable precedent) will be addressed.
Rural character
In respect to this issue the Tribunal heard evidence from Mr Nikolas Hidding, town planner, and Mr Malcolm Mackay, architect and urban designer, on behalf of the applicant and Mr Joe Algeri, town planner, and Mr David Kaesehagen, environmental scientist, on behalf of the respondent.
In dealing with the question of rural character the evidence provided to the Tribunal addressed the following matters:
•delineating the locality;
•defining the character of the locality; and
•assessing the proposed development in terms of consistency with the rural character.
Delineating the locality
The experts established divergent delineations of the relevant locality.
Mr Hidding, the planning expert for the applicant, argued the extent of the locality included:
(a)The area bounded by Reid Highway to the north;
(b)Includes the area of urban residential development only 120 metres away to the west along Suffolk Street;
(c)The area bounded by Benara Road to the south; and
(d)Rural land on the eastern side of West Swan Road, to the east.
Mr Mackay, the design expert called by the applicant, considered a far broader area which included localities north of Reid Highway and areas on the eastern side of the river.
Mr Algeri, the planning expert for the respondent, stated:
… I would describe the locality for the purposes of this review to be the 'Rural' zone of Caversham as it appears on the MRS zoning plan ... This extends no further than approximately 500 metres from the site to the south and east (on the eastern side of West Swan Road) and extends to the urban zone boundary to the west and Reid Highway to the north.
(Witness Statement (WS) para 19)
Mr Algeri excluded the urban portion of Caversham given the clear differentiation in zoning provisions between the two areas under both LPS 17 and the MRS. In the hearing, Mr Algeri conceded that the area to the south beyond 500 metres from the subject site may be relevant in considering the broader locality.
Mr Kaesehagen, the design expert called by the respondent, considered the 'rural' landscape visible from the section of West Swan Road between Reid Highway and Benara Road. In doing so, however, his assessment did include views to the west which included the 'low urban roofline' of the Caversham residential area.
In assessing the various delineations of locality in broad terms the Tribunal prefers the evidence of Mr Hidding for the following reasons:
•Mr Algeri's suggestion appears somewhat narrow given the importance of West Swan Road as a designated tourist route, and the fact that he conceded that areas to the south beyond 500 metres may warrant consideration and recognised the clear view and proximity of the residential area of Caversham from the subject site;
•Mr Mackay's delineation appears too broad given areas north of Reid Highway and east of the river are too far from the subject site to realistically inform the character of the locality of the subject site; and
•The study area of Mr Kaesehagen largely matches that of Mr Hidding with the exception of the residential area of Caversham. This was however a factor Mr Kaesehagen included in his analysis.
Thus the Tribunal finds that the relevant locality for consideration is bounded to the south by Benara Road, to the north by Reid Highway, to the east by the visually perceptible rural land to the east of West Swan Road and to the west by the rural land of Area B and the eastern edge of the residential development of Caversham.
Defining the character of the locality
In seeking to define rural character the planning and design experts again came to widely divergent conclusions.
Mr Hidding argued that while rural in zoning, the land is on the urban fringe and that the subject site is not located in a homogeneous or pristine rural locality as it contains an eclectic mix of residential, rural, entertainment, tourism, service and religious land uses.
It is to be noted that in the hearing, the planning experts agreed the locality does not represent a pristine rural character. Mr Hidding suggested the amenity of the subject site would be something more described as 'peri-urban' (ts 2.17 pm, 29 May 2019).
While Mr Mackay acknowledged references in planning documents to the Swan Valley being 'rural' that is, in his view, not the case and he argued the Swan Valley is best described as a 'peri-urban' area. This proposition is based on the presence of suburban growth, the newly constructed church, Sandalford and Mandoon Estate wineries, Taylor Park oval and a number of different structures in the immediate vicinity of the oval, the tile factory 1.6 kilometres to the south, a prison complex 1.1 kilometres to the northeast and other structures within the broader locality.
Mr Algeri described the character of the area as rural. In doing so he drew on the definition of rural character in cl 3.1 of the Interim Policy which reads as follows:
…
Rural character means the distinctive combination of qualities which make an area 'rural' rather than 'urban'. These include the dominance of the landscape of primary production and natural landscape regimes and the absence or subservience of man-made structures other than those related to the primary use of the area for which the land is zoned or reserved.
However, Mr Algeri noted that within that rural character there are a number of incursions or discrepancies. In his view, there are many elements which are not rural but on the whole he would still determine the character of the area as one which is predominantly rural (ts 2.13 pm, 28 May 2019).
Mr Kaesehagen argued that the general character of the locality can be described as rural. In doing so he noted that it is a modified landscape which is quite varied and eclectic; while the character is generally open, within the flat open landscape of paddocks and vines there are taller elements comprising a mixture of native and exotic trees. Built form is dotted through the rural landscape but is, in his view, subservient to the rural uses of the area.
In the hearing Mr Kaesehagen provided the following assessment of the locality:
Is there something that brings it together, that knits it together and I think there is; there's openness, there's greenness, there's vines, there's open paddocks, there's the buildings scattered among, scattered amongst them generally single storey, sometimes two storey, there are some larger shed type structures but generally you can read it as one landscape. The character is very identifiable.
(ts 11.02 am, 29 May 2019)
Mr Kaesehagen therefore confirmed his conclusion that the general character of the study area is 'rural' and argued that the low relief, open views with minimal vegetation screening, close proximity to the road and limited scale of built form are the most critical factors.
The difficulty with Mr Mackay's evidence is that integral to his proposition of 'peri-urban' is his particularly broad delineation of the locality which has been found wanting by the Tribunal in the findings on locality. The locality, as identified by Mr Mackay, encompasses areas that are not only remote from the subject site but include activities such as the roofing tile factory 1.65 kilometres to the south, a residential subdivision northeast of the subject site, and a prison complex 1.1 kilometres to the northeast and various uses on the eastern side of the river. Such uses do not inform the character of the relevant locality.
It is clear, and the Tribunal accepts, that the locality does not constitute an environment of pristine rural character.
It is also clear that the character of the locality is being incrementally eroded over time. In the immediate locality of the subject site this erosion is reflected in the subdivision of land immediately to the north, the development of a church immediately adjacent to the residential subdivision of Caversham to the west and the incremental modification of roads, which include Suffolk Street, to an increasingly urban standard.
In their joint witness statement Mr Mackay and Mr Kaesehagen agreed:
•West Swan Road is the primary viewpoint, because it is a tourist route and it is where the greatest number of viewers will be.
•that the view of what is in the foreground is most significant; and
•that most people on West Swan Road will be in vehicles, and that the views are transient/passing views that will be perceived from different viewpoints in transit, for a limited amount of time, and with different levels of concentration (drivers versus passengers).
The Tribunal accepts this evidence.
In this context the question is whether the extent of the erosion of rural character of the locality has been such as to substantially undermine that character.
The Tribunal is of the view that the locality retains its rural character for the following reasons.
The Tribunal had in evidence Mr Kaesehagen's Visual Landscape Assessment. This document applied the methodology set out in Visual Landscape Planning in Western Australia (VLPWA); a manual for evaluation, assessment, siting and design.
Mr Kaesehagen's assessment provided a methodical and considered analysis of the character of the locality. Importantly, in crossexamination he was able to provide logical explanations of both his methodology and the conclusions he reached. In this context the Tribunal accepts the evidence of Mr Kaesehagen in regard to the general character of the locality (see paras 59 and 60) and his conclusion that the general character of the study area is 'rural' (see para 61).
Furthermore, on the basis of this evidence, the Tribunal finds that while the character of the locality has clearly been eroded the extent of this erosion has not been so extensive that its rural character has been displaced.
Counsel for the applicant, drawing on the evidence of Mr Hidding and Mr Mackay, submitted that the amenity of the area has been substantially impacted by the intensity of activities in the locality. Particular reference was made to the 400 people likely to attend the church on Sundays and the 16,000 people attending events at Sandalford Winery. The Tribunal is of the view that the intensity of uses in the locality may well be relevant in a merits based review of the proposal. However, given that the events referred to are intermittent, and in the case of Sandalford Winery events currently infrequent, and that such events or patterns of use do not impact on the underlying perceived physical environment means that the intensity of intermittent events is not in any sense determinative in establishing the character of the locality.
Consistency with the rural character
The evidence on consistency with the rural character addressed the questions of land use, bulk and scale, intensity of development on the site, lighting and landscaping.
Land use
Mr Darren Walsh, an environmental scientist called by the applicant and Ms Heather Percy, an expert in agricultural land use planning called by the respondent, provided evidence on land capability of the subject site.
The experts agreed that the soils on the subject site are suitable for viticulture. However, they also agreed that no water licence had been issued or was currently available for the subject site. Finally, they agreed that the size of the site was such that it is unsuitable for a standalone commercial viticulture business.
Based on this evidence it seems unlikely that the subject site would be used in the future for viticulture.
Mr Hidding, argued that the proposed uses comply with s 6 of the SVP Act which includes 'the promotion of tourism that complements the rural character of the Swan Valley' and that the uses are not prohibited under s 8 of the SVP Act.
In light of s 8 of the SVP Act which seeks to encourage the traditional activities of the Swan Valley, Mr Hidding argued that the proposed development addresses this objective in that it is complementary to the traditional activities of the Swan Valley by supporting the other uses in the Swan Valley.
Mr Hidding noted, in regard to s 8(5) of the SVP Act, that there are a number of restaurants and taverns that have been developed outside of the existing retail and community facilities at Herne Hill, Caversham and West Swan.
Mr Algeri argued the proposal does not involve traditional activities of the Swan Valley, is unaware of any evidence to support a claim there is a deficiency of accommodation in the Swan Valley, and does not accept that consideration of all the uses together as a whole somehow makes the proposal compatible with the rural character and traditional agricultural activities of the area.
It is not contested by the applicant that the proposed uses on the subject site do not have a direct association with viticulture, horticulture or cottage industry. The applicant does, however, contend that the proposed development is complementary to and associated with showcasing the viticulture of the region.
In the hearing, the planning experts agreed that the uses, in and of themselves, are not objectionable. However, Mr Algeri's agreement was subject to the question of how such uses manifest themselves in terms of built form on the subject site.
Bulk and scale
Mr Hidding argued that s 8 of the SVP Act seeks to encourage tourist facilities which do not detract from the rural character of the area and that the design of the built form of the proposed development enables it to integrate well within the rural character of the area.
In addition, Mr Hidding argued that the proposed development addresses the character and traditional activities of the area as the design, siting and landscaping complements and harmonises with the rural character of the Swan Valley by the incorporation of substantial landscaping and rural vernacular building design and by providing accommodation and supplementary services to people who wish to stay and explore the Swan Valley.
Mr Hidding argued that the built form is high quality in appearance and that:
The proposal will improve the experience of tourists and other road users travelling along West Swan Road, as the development will be sited in such a way that it will shield the urban front of Caversham that continues to develop closer to the land[.]
(WS para 112)
Mr Hidding also argued the height of the proposed development is similar to other developments in the area.
Mr Mackay provided an independent view on the appropriateness of the proposal in regard to the prevailing character of the area and the locality and more specifically:
•whether the proposal detracts from the rural character of the area; and
•the compatibility of the design, siting and landscaping having regard to the character of the area.
Mr Mackay argued that the Swan Valley is 'peri-urban' and suggests that:
The simple answer to the question of whether the proposal detracts from the rural character of the area is 'no' because the area is clearly not rural and, therefore, does not have a rural character.
(WS para 5.21)
Mr Mackay concluded that the proposed development is compatible with the character of the area for the following reasons:
•the bulk, intensity, placement and height of the proposed development is not so much that it becomes an overly prominent feature in the landscape;
•the siting and form of the buildings are not urban in character;
•the car parking is sufficiently dispersed;
•the material and colour palette is sufficiency consistent with other buildings in the area; and
•landscaping is likely to provide an appropriate degree of continuity in the broader landscape.
In addition Mr Mackay argued:
… the 'L'-shape of the proposal also creates a perception that the building is smaller than it is, which is relevant in the context of common expectations of smaller buildings in a rural setting.
(WS para 5.26(h)
And that:
The fragmentation of the main building elevations, achieved by breaking them into a series of 45-degree projections, results in a greater perception of the main building not being one building but a series of smaller attached buildings with the perception of a lesser scale than a single larger building.
(WS para 5.26(i))
In the hearing in response to a question from counsel for the respondent as to whether there are any larger and less articulated buildings between Reid Highway and Benara Road fronting onto West Swan Road, Mr Mackay responded 'No, in the immediate vicinity of the site' (ts 11.03 am, 29 May 2019).
While Mr Algeri conceded that the attempts made to soften the harder 'urban' appearance of the proposal are commendable, in his view they fall short of something that would be acceptable in terms of the compatibility of the design, siting and landscaping with the character of the area because he regards the design of the built form as essentially an urban built form which detracts from the rural character.
Mr Algeri concluded that the proposed type scale and design of the proposed development is not compatible with the rural character of the area.
Mr Kaesehagen provided a visual assessment of the proposed development in terms of its consistency with the rural character of the immediate locality and whether the intensity of the land uses and built form are consistent with the rural character and amenity of the locality.
In undertaking this task Mr Kaesehagen applied the methodology set out in the VLPWA. This manual seeks to provide advice on techniques for incorporating visual landscape planning into the planning system.
Mr Kaesehagen identified the study area, described the rural landscape character of the study area, and established visual management objectives, prior to an assessment of the potential changes to the landscape character associated with the proposed development.
Mr Kaesehagen concluded that the proposed development would not protect or maintain the rural character of the locality for the following reasons:
•The scale and bulk of the development is inconsistent with existing built typologies in the immediate locality;
•West Swan Road is a main tourist route promoted as part of the food and wine trail;
•The close proximity of the development to the road will result in the visual dominance of built form;
•The view to the west could potentially consolidate an urban framework by visually joining the urban development in Caversham; and
•The urban kerbing and footpaths and landscape treatment does not correspond with typologies that exist in the Swan Valley rural character.
In the hearing Mr Kaesehagen argued that the area is:
… fairly flat and I think that unfortunately if it was much more undulating you would have the capacity to absorb the development. So it has low absorptive capacity.
(ts 10.52 am, 29 May 2019)
This evidence drew on the assessment of visual absorbance capacity (VAC) included in his witness statement. This concept is drawn from the VLPWA and Mr Kaesehagen's conclusions were:
… Changes introduced to a landscape … with low VAC will have greater visual impact. The most critical factors of the Subject Site and proposed development that influence VAC are low relief, open views with minimal vegetation screening, close proximity to the road, greater public sensitivity level and large scale of the development in comparison to the built form in the Study Area[.]
(WS para 50)
In his witness statement Mr Kaesehagen also argued the close proximity of the development to the road will result in the visual dominance of built form and that the scale and bulk would break the western and northern horizon lines.
In terms of built form in the locality, the Tribunal had in evidence plans of a recently approved restaurant on Lot 2931 (designated Lot 211 on the plans) located approximately 115 metres south of the southern extremity of the subject site. It was agreed that the setback of this building from West Swan Road was comparable with that of the proposed development.
However, it was not contested that this structure was single storey and that the section toward West Swan Road was lower than the rear section of the structure.
It is also to be noted that a substantial area of that lot is proposed to be under vines and, as seen on the viewing, the perception of the structure from West Swan Road is somewhat mediated by a number of mature trees located in the vicinity of the northeast corner of the lot.
In considering the evidence before it, the Tribunal finds that the bulk and scale of the proposed development is not consistent with the rural character of the locality for the following reasons:
•The Tribunal accepts the evidence of Mr Kaesehagen in regard to the low VAC of the subject site.
•The Tribunal accepts the joint evidence of Mr Mackay and Mr Kaesehagen that 'West Swan Road is the primary viewpoint' and that 'the view of what is in the foreground is most significant'.
•The Tribunal accepts the evidence of Mr Kaesehagen of the 'large scale of the development in comparison to the built form in the Study Area' and the concession by Mr Mackay that there are not any larger and less articulated buildings between Reid Highway and Benara Road fronting onto West Swan Road.
•The Tribunal accepts the evidence of Mr Algeri that the proposed type scale and design of the proposed development is not compatible with the rural character of the area.
•The Tribunal rejects the evidence of Mr Hidding that the height of the proposed developments is similar to other developments in the area. The evidence before the Tribunal is that the maximum height of the serviced apartments is 9.31 metres high and the road house is 7.77 metres. The drawings of the approved restaurant suggest the maximum height of that structure is approximately 6.5 metres.
Intensity of development on the site
Mr Hidding argued the design of the built form of the proposed development enables it to integrate well within the rural character of the area. This view is contested by Mr Algeri.
Referring to the Rural Zone Policy Mr Algeri contended:
This is a policy which applies to rural areas. If they are to be rural areas they should not be dominated by development and built form
(ts 3.23 pm, 29 May 2019)
and that:
The proportionality of the development relative to lot size is significant because one of the considerations for me as to when we start departing from a development which is arguably rural or consistent with a development that has rural character is the intensity of that development.
(ts 3.23 pm, 29 May 2019)
Mr Algeri concluded that he considers the proposal an overdevelopment of the site which is very much 'urban' and not rural in character by virtue of the intensity of development on the site. He argued '[t]here is too much happening on a small site' (ts 4.23 pm, 29 May 2019). In his view, it is therefore not compatible with the adjoining land and the surrounding locality.
In this regard, Mr Hidding argued that the area of all buildings on the site represent a variation of 6% to the Rural Zone Policy of 10% which, in his view, is imperceptible.
However, in the hearing it emerged that Mr Hidding had not included the area of some of the serviced apartments located on the first floor above a carpark.
Mr Algeri calculated the area of building coverage as 17%. However, in dealing with this matter in the hearing Mr Algeri stated:
What I am more concerned about is that you are already above 10%; then on top of that you have got driveways, you've got hard surfaced car park areas, … and you've got almost half the site in my view which is developed and that's perhaps more important than any specific calculation.
(ts 3.23 pm 29 May 2019)
This concern was reflected by Mr Kaesehagen who suggested:
In a rural setting I think … the ratio of openness compared to the built form is completely different. Therefore, you have a lot more open space to deal with … to achieve a rural character.
(ts 10.41 am, 29 May 2019)
It is Mr Hidding's contention that the proposed development would shield the urban front of Caversham and Mr Mackay argued 'the establishment of the development will help to obscure the view of the new suburban development to the west from West Swan Road and help to maintain that illusion that the place might be a rural area (WS para 5.26(f)). While this is clearly the case this aspect raised concerns for both Mr Kaesehagen and Mr Algeri.
Mr Kaesehagen suggested that approval of the proposed development would:
… from a landscape perspective, a visual landscape perspective, have the potential to consolidate the urban front within Area B by visually drawing in the proposed development with the adjacent suburban development.
(ts 10.00 am, 29 May 2019)
and that:
So visually it could potentially be read as a more significant urban intrusion into Area B rural landscape.
(ts 10.00 am, 29 May 2019)
Mr Algeri challenged the suggestion of the applicant (Statement of Issues, Facts and Contentions para 17) that the site is located in some form of transitionary site or buffer between the urban and the Swan Valley Rural Zone of Caversham. In this regard he argued:
… Notwithstanding the close proximity of the urban development to the west, the subject land, as with most properties located on West Swan Road, is within the 'heart' of the Swan Valley, i.e. Area B of the SVP Act area.
(WS para 165).
Based on this evidence the Tribunal finds that the intensity of the proposed development is not consistent with the rural character of the locality for the following reasons:
•The Tribunal finds that the total area of buildings on the site exceeds the 10% required by the Rural Zone Policy and the evidence before it provides no cogent reason to depart from the policy.
•The Tribunal accepts the evidence of Mr Algeri that almost half the site would be developed with buildings, roads, access ways and parking areas and this is not compatible with the adjoining land and the surrounding locality.
•The bulk and scale of the development, when read together with the adjourning church and the proximity of the east edge of the Caversham suburban area to the west, would represent the intrusion of built morphology which would be unfamiliar in a rural environment.
•While the Tribunal accepts that there has been an erosion of the rural character of the locality, for reasons set out in Tooth and City of Subiaco [2005] WASAT 317; (2005) 41 SR (WA) 198 and Spectator Investments Pty Ltd and the City of Joondalup [2006] WASAT 232, the Tribunal does not accept that 'the horse has bolted' and concurs that 'two wrongs do not make a right'. In the context of this review the subdivisions of the land to the north, the development of the church to the immediate west, the close proximity of the Caversham residential development and the increasing insertion of urban elements into the road network do not establish a basis on which the planning principles identified as relevant to the application should be departed from.
•The Tribunal also rejects the contention that the subject site falls within a transitionary area between the Swan Valley and urban/developing land to the west. While the Caversham Structure Plan makes provision for R5 Transition Lots on its eastern boundary there is nothing in the planning framework for either the Swan Valley Rural Zone under LPS 17 or Area B in the SVP Act that could lead to a conclusion that a transitionary area is intended within these areas of the Swan Valley.
Lighting
In their joint witness statement Mr Mackay and Mr Kaesehagen agreed that 'bright and insensitive lighting … is undesirable' (JWS para 16).
In addition they agreed 'that there is an opportunity in the detailed design stage to develop a sensitive external lighting strategy that avoids high-level floodlighting and high levels of luminosity, and places more emphasis on bollard and other ground level lighting, and uses warmer colour temperatures' (JWS para 37).
In his evidence Mr Kaesehagen addressed the issue of lighting where he argued 'the rural character during the evening has minimal lighting' and that '[l]ighting associated with the proposed development would increase the level of illumination of the rural landscape' (WS para 53).
In the hearing Mr Kaesehagen expanded on his concerns as follows:
Well I think I have an issue with potential lighting impact generally. I think if it's a 24 hour operating service station we generally have quite bright lighting attached to it particularly around bowsers for operator safety and you have the signage and then also Mr Mackay and I talked about opportunities for lighting in the car park and from experience in dealing with car parks generally there is quite a strong requirement to have increased lux so that safety for patrons can be ensured so I am just concerned that if you have got the service station, the car parks, the apartments, the landing lighting, you've got the lighting behind, which at some level will be obscured, attached to the church and you've got the lighting on the horizon you really are changing the night time character of a rural area. And rural areas tend to have a much darker character.
(ts 11.32 am, 29 May 2019)
The evidence before the Tribunal was that a 24hour service station is required to meet specific Australian Standards for lighting and is required by law to have a sign displaying the price of petroleum products during all trading hours which would necessarily be required to be lit at night.
Given the evidence before it, and it is to be noted that Mr Kaesehagen's evidence in this regard was uncontested, the Tribunal finds that the lighting associated with the development would introduce a foreign element along an important tourist route which would, during the evening and at night, be at variance with the rural character of the locality. For this reason the proposed lighting associated with the proposed development is not consistent with the rural character of the locality.
Landscaping
While Mr Hidding contended that the proposed development complements and harmonises with the rural character of the Swan Valley by the incorporation of substantial landscaping the evidence of the other experts challenges this view.
Mr Mackay and Mr Kaesehagen suggested a range of potential improvements to the proposed landscaping. They expressed a concern that the use of vines gives rise to questions in regard to maintenance and, therefore, suggested orchard planting could be an alternative approach. They also said there was scope to introduce more linear planting, consider the materials used in the carparks and driveways, break the longer lines of car parking with trees, and that a row of trees on the western perimeter of the site could provide a vegetated backdrop to the development and help screen the adjacent church and suburban development from West Swan Road. These suggestions raise substantive questions as to the consistency of the currently proposed landscaping with the rural character of the locality.
The concerns were shared by Mr Algeri who, while commending the attempts made to soften the appearance of the proposal, stated that they fall short of something that would be acceptable in terms of the compatibility of the design, siting and landscaping with the character of the area.
Thus the Tribunal finds having regard to the evidence of the experts that the landscaping, as currently proposed, is not consistent with the rural character of the locality.
This is, however, a matter which is not fatal to the proposed development as it could be addressed by a condition attached to an approval should the Tribunal find for the applicant in the review.
Consistent/compatible
In framing the issues in this review the parties established 'consistent with the rural character' as the criteria to be applied. In fact the relevant provisions of s 8, specifically objectives 8(4), (6) and (7) of the SVP Act establish 'compatible with the rural character' as the criteria while objectives 8(3) and 5A refer to 'detract from the rural character'.
In order to avoid any doubt, based on the acceptance of evidence from Mr Algeri who applied 'compatible with the rural character' as the criteria, the Tribunal determines that the proposed development does not meet the test of 'compatible with the rural character' in regard to bulk and scale, intensity and lighting (objectives 8(4), (6) and (7) of the SVP Act).
The Tribunal also finds that the proposed development detracts from the rural character of the area and fails to meet objective 8(3) of the SVP Act.
Spray drift
Planning objective 8(1) of the SVP Act for Area B requires '[t]he protection of viticulture'.
Mr Algeri, in dealing with the objectives 8 of the SVP Act, argued that the proposed development could have an adverse effect on surrounding viticulture if it is affected by spray drift which could impair the undertaking of such operations.
In Radha Soami Satsang Beas Australia and City of Swan [2019] WASAT 24 (Radha) at [55] and [57] the Tribunal found:
More fundamentally, s 8 of the SVP Act cannot be understood as requiring the decision-maker to refuse an application if it would prevent the land from being used for the purpose of viticulture. That is because there is more than one use that is to be encouraged under s 8.
…
Properly understood, s 8 of the SVP Act requires consideration of whether the proposed development is incompatible with or puts at risk any existing viticulture (objective 1)[.]
The Tribunal concurs with this view.
In this context the substantive question is whether the proposed development would impinge on the operations of existing viticulture uses in the immediate locality. This goes to the issue of spray drift.
The evidence was that the potential risk associated with spray drift, given the prevailing easterly winds during the spring and summer growing period, was from the existing vineyards on Lot 3210 (Sandalford Wines), and Lot 3120 also on the eastern side of West Swan Road.
Mr Walsh was of the view that given good management practices, the fact that, in his view, the land use of serviced apartments was at the lower end of the scale of potential sensitive uses, the occupants would largely be confined to indoor areas and the exposure to residents would be extremely short-term and highly diluted the proposed development would not lead to land use conflicts.
Ms Percy however raised concerns that the proposed development did not meet the requirements of the Department of Health Guidelines for Agricultural and Residential Land Uses (Health Guidelines).
While both the overlapping and potentially contradictory provisions of the EPA Guidance and the Heath Guidelines and differences of opinion in interpreting the proposed land uses in terms of those provisions complicated matters, the experts agreed that the design of the landscaping on the eastern boundary of the development facing West Swan Road could be undertaken in a manner which addressed the design criteria for vegetated buffers detailed in the Health Guidelines.
Based on this evidence the Tribunal finds that while the issue of spray drift could potentially be effectively managed by a condition, given the findings in regard to the consistency of the proposed development with the rural character of the locality there is no need for the Tribunal to make a finding on this matter.
EPA Guidance
The EPA Guidance establishes in Appendix 1 generic separation distances which include a buffer distance of 200 metres between a 24hour service station and a sensitive land use.
Sensitive land uses include residential development, hotels, and motels.
Where a buffer requirement is not met a site-specific investigation and report demonstrating that the separation distance will meet acceptable criteria is required.
Mr Walsh provided a fuel vapour odour impact assessment based on an existing service station that identified odours were detectable at a maximum of 20 metres to 30 metres from the fuel filling area and tank vents of the service station.
The EPA Guidance also identifies gaseous, noise and risk impacts as requiring consideration. Although odour and noise impacts were addressed in Mr Walsh's statement, the service station assessment that accompanied his statement was limited to odour impacts and did not provide a technical assessment of potential noise impacts or other risks associated with locating a service station in close proximity to a sensitive land use.
While the Tribunal is not convinced that the odour impact assessment could be regarded as fulfilling the EPA Guidance requirements for a site-specific investigation, there is no need for the Tribunal to make a finding on this matter.
Planning framework
Interim Policy
In the material before the Tribunal and in the hearing, reference was made by both parties to the Interim Policy.
In Radha the Tribunal found at [32], [33] and [46] as follows:
32The Interim Policy was published by the Commission in 2016. In the introduction to the Interim Policy it is stated that:
Government intends to strengthen the current legislative and governance framework for the Valley, and develop a set of planning instruments that will enable informed and consistent decisions to be made regarding future land use and development.
….
[I]t is expected that these instruments will be finalised by June 2015.
In the meantime, viticultural and agricultural industries in the Swan Valley are under pressure from competing residential and commercial land uses, and interim policy measures are required to ensure incompatible development does not occur prior to the planning instruments taking effect.
33Following a State election the successor government engaged Mr John Kobelke to conduct a new independent review of Swan Valley Planning in 2017[.]
…
46The Interim Policy is a policy of the Commission and therefore regard must be had to it. Having said that, as was conceded by the respondent, it attempts to add meaning to provisions of the SVP Act, which is not something that a policy can or should do. Regard can be had to the Interim Policy's objective perhaps, which is 'ensure incompatible development does not occur prior to the [at the time shortly anticipated] planning instruments taking effect'.
Furthermore, to the extent that s 8(1) of the Interim Policy purports to constrain the discretion established by the Zoning Table in cl 4.3 of LPS 17, it is invalid.
In Stock and Shire of Victoria Plains [2005] WASAT 347 the Tribunal, at [21] addressed the need for policy to be consistent with the prevailing scheme:
The Town Planning Appeals Tribunal (WA) has held:
'This policy is of course only a policy. It is not a part of the positive law in the sense that it is not part of the text of the town planning scheme itself. I think it is trite to say that to the extent that any planning policy would be inconsistent with the text of a town planning scheme, then the policy cannot prevail.': Kanther v State Planning Commission (1987) 5 SR (WA) at 151.
In this context little weight can be accorded to the Interim Policy in the matter under review.
Status of Amendment 176
On 10 April 2019 the City initiated Amendment No. 176 to LPS 17. This amendment proposes that 'Tavern', 'Restaurant' and 'Roadhouse' use classes will no longer be permissible in the Swan Valley although 'Tavern' and 'Restaurant' could be considered should they occur in conjunction with grape growing, winemaking or other horticultural production.
Amendment 176 has been advertised for public comment under the LPS Regulations.
The advertising of the amendment brings it within the ambit of cl 67(b) of the LPS Regulations and establishes that it is a matter which the local government, or the Tribunal standing in its shoes, is to have due regard in considering an application for development approval.
However, as articulated in Radha the Tribunal found at [12] as follows:
On 10 April 2019, the respondent's council agreed to the advertising of a proposed amendment to the Scheme that, amongst other things, would make 'Place of Worship' an 'X' or not permitted use in the Swan Valley Rural Zone. Regard must be had to this draft amendment to LPS 17, however, given that the draft amendment is still being advertised, it is far from certain at this stage that the proposed amendment will ultimately be approved by the Western Australian Planning Commission (Commission) and incorporated into the Scheme. Little weight can be given to the draft amendment in those circumstances.
This is a view with which the Tribunal concurs.
Undesirable precedent
Given the findings made by the Tribunal in this review there is no need to address the question of undesirable precedent.
Conclusions
The question before the Tribunal in this review was whether discretion should be exercised to approve the proposed development of a roadhouse, restaurant/tavern and tourist facilities (shortstay accommodation) at Lot 100 West Swan Road, Caversham.
The substantive issue raised by the parties is whether the proposed development is 'consistent with the rural character' of the locality.
This involved deliberations in regard to delineating the locality, establishing the character of the locality and subsequently assessing the proposed development in terms of the outcomes on those questions.
In this regard the Tribunal finds:
•the bulk and scale of the proposed development is not consistent with the rural character of the locality;
•the intensity of the proposed development is not consistent with the rural character of the locality; and
•the proposed lighting associated with the proposed development is not consistent with the rural character of the locality.
However, the evidence and submissions before the Tribunal raised a number of further issues for consideration. These included consideration of the specific objectives set out in s 8 of the SVP Act and the buffer zone provisions of the EPA Guidance and Health Guidelines. Finally, they required consideration of the status and weight to be accorded to both the Interim Policy and Amendment 176 to LPS 17.
In balancing all of the relevant consideration and based on the findings set out above the Tribunal concludes that the proposed development does not meet the requirements of cl 4.2.12(d) of LPS 17, s 6 or s 8, objectives 8(3), (6) and (7) of the SVP Act, cl 2.2 of LPP 126 or cl 67 (a), (b), (g), (m), (n) of the LPS Regulations.
For these reasons the proposed development does not warrant the exercise of discretion in its favour. Accordingly, the application for review should be dismissed and the decision of the respondent affirmed.
Orders
For the reasons set out above:
1.The application for review is dismissed.
2.The decision of the respondent on 28 February 2019 to refuse the development of a roadhouse, restaurant/tavern and tourist facilities (shortstay accommodation) at Lot 100 West Swan Road, Caversham under the provisions of the City of Swan Local Planning Scheme No 17 and the Metropolitan Region Scheme is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR P DE VILLIERS, MEMBER
28 JUNE 2019
0
5
5