Project Development WA Pty Ltd and City Of Bayswater - [2010] WASAT 128

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: PROJECT DEVELOPMENT WA PTY LTD and CITY OF BAYSWATER [2010] WASAT 128

MEMBER: MR J JORDAN (MEMBER)

HEARD: 25 MAY 2010 & 1 JUNE 2010

DELIVERED : 10 SEPTEMBER 2010

FILE NO/S: DR 457 of 2009

BETWEEN: PROJECT DEVELOPMENT WA PTY LTD
Applicant
AND
CITY OF BAYSWATER
Respondent

Catchwords:

Town planning Development application Refusal Proposed liquor store with drive through bottle sales Special Purpose zone Characterisation of use Whether use is local shopping Car parking Traffic impact Effect of liquor outlets in locality Relationship to antisocial behaviour Previous approval for development of the site Fast food outlets and local shop approved on site Impact on amenity of neighbouring residential street Amendment to scheme to change uses in Special Purposes zone Orderly and proper planning Deed for reciprocal use of access and parking with adjoining lot Shops and commercial premises on adjoining lot

Legislation:

Building Regulations 1989 (WA)
City of Bayswater Town Planning Scheme No 13
City of Bayswater Town Planning Scheme No 21
City of Bayswater Town Planning Scheme No 24, cl 1.6, cl 3.6, cl 9.2, Appendix 3, Table 2
Environmental Protection (Liquid Waste) Regulations 1996 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Health (Air Handling and Water Systems) Regulations 1994 (WA)
Health Act 1911 (WA)
Interpretations Act 1984 (WA), cl 19(1)(1)
Liquor Control Act 1988 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Sewerage (Lighting, Ventilation and Construction) Regulations 1971 (WA)

Result:

Application for review allowed
Decision of the Council to refuse the proposed change of use of Shop 2 to a liquor store with drive through facility at Lot 101 Guildford Road, Bayswater set aside and planning approval granted, subject to conditions

Category: B

Representation:

Counsel:

Applicant: Mr E Samec (Representative)
Respondent: Mr D McLeod

Solicitors:

Applicant: Samec Planning
Respondent: McLeods

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

Canning Mews Pty Ltd v City of South Perth [2005] WASAT 22; (2005) 41 SR (WA) 79
Nicholls and Western Australian Planning Commission [2005] WASAT 40
O'Connor and Town of Victoria Park [2005] WASAT 161
Project Development WA Pty Ltd and City of Bayswater [2010] WASAT 41
Sunbay Development Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

These proceedings involved an application for review of a decision by the City of Bayswater to refuse to grant planning approval for the development of a liquor store with a drive through sales facility at No 497 Guildford Road, corner Slade Street, Bayswater.
On considering the issues that fell to be determined in this matter, the Tribunal first formed the view in respect of the first issue that the proposed development would be consistent with serving 'the daytoday shopping needs' of this largely residential locality.
The second issue was whether there is adequate parking provided for the proposed liquor store. The Tribunal found that there would be adequate parking, having regard to the terms of the development and associated parking earlier approved for the site, and the proposed use having similar parking requirements to the approved use it would replace.
The third issue was whether traffic generated by the proposed liquor store would have an adverse impact upon the inhabitants of the locality. The evidence before the Tribunal was that the proposed use would generate traffic that would not add significantly to existing traffic volumes or to the current concerns about traffic referred to by objectors to the development.
The fourth issue was whether the proposed liquor store would be inconsistent with orderly and proper planning and preservation of the amenities of the locality. The Tribunal formed the view that the proposed use would be consistent with the orderly and proper planning of the locality, because it would be a use consistent with the current planning purpose of the Special Purpose zone in which it is located and would not have such an impact on the local amenity as to warrant refusal.
The final issue was the significance of a proposed amendment to the relevant town planning scheme that would make 'liquor store' as a use that was not permitted. The Tribunal concluded that, while the proposed amendment must be weighed, in the circumstances, it was not of such significance as to outweigh the conclusions reached in respect of the four issues addressed above.
The Tribunal found that there was a case for allowing the proposed liquor store and drive through facility, and granted conditional planning approval.

Introduction

These proceedings involve an application brought by Project Development WA Pty Ltd (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the City of Bayswater (City or Council) to refuse to grant planning approval for the development of a liquor store with a drive through sales facility at No 497 (Lot 101) Guildford Road, corner Slade Street, Bayswater (site).
In October 2007, the City received an application for approval to commence development of showrooms and a tavern, including a drive through bottle shop, on the site. The City subsequently received advice that the showroom component would be modified to shops, to comply with the zoning of the site. In March 2008, the Council resolved that the application be advertised for public comment. In April 2008, the applicant provided amended plans for development of the site and the City notified those who had previously provided submissions of the plans to amend the proposed development.
The development proposal that eventually went before the Council was described as including four separate tenancies as follows:
a)2 fast food outlets (drive through chicken franchise (206sqm) and drive through coffee outlet (19sqm))[;]
b)liquor store (204sqm) with drive through bottle shop component (71sqm); and
c)shop (205sqm)[.]
Council resolved on 24 February 2009 to grant conditional planning approval, but also resolved that 'a liquor licensing outlet will be refused'. A motion to rescind the conditional approval was lost at the Council meeting of 16 April 2009 and the conditional approval of February 2009 was then issued.
There was a dispute between the parties as to whether the liquor store and drive through facility had been granted planning approval. This arose from differences in the wording of the Council's decision and annotations on the approved plan. Notwithstanding this dispute, in July 2009, the applicant lodged a fresh application seeking approval for the liquor store with a drive through facility on the site.
At its meeting of 4 November 2009, the council refused the application. The application for review now before the Tribunal was then filed on 30 November 2009. A preliminary issue raised in the proceedings was whether, in the proper construction of the Council's planning approval issued on 16 April 2009, there was approval of a liquor store in Shop 2. The Tribunal, on 23 March 2010, in Project Development WA Pty Ltd and City of Bayswater [2010] WASAT 41 determined:
On the proper construction of the City's planning approval of 16 April 2009, there was no approval of the liquor store in Shop 2.
The review of the refusal of the liquor store and drive through facility then proceeded to this final hearing before the Tribunal. The Tribunal, accompanied by counsel and the expert witnesses, viewed the site and immediate locality on the morning of 1 June 2010.

Site and locality

The site is on the northwestern corner of the intersection of Guildford Road and Slade Street. It has an area of 3,130 square metres and frontages of 65 metres to Guildford Road at the southern boundary and 40 metres to Slade Street at the eastern boundary. The two streets meet at an acute angle and the corner is truncated. The site was vacant when viewed by the Tribunal, but there were earthworks being carried out in preparation for the laying of concrete floor pads for the approved buildings. At the eastern end is a limestone retaining wall, and in the northeast corner of the site there is an accessway about 2 metres wide which rises up from the site to a crossover to Slade Street which, at that point, is about 3 metres higher than the site.
Adjoining the site to the west is Lot 26 of 1,027 square metres. On Lot 26 is a building with 400 square metres of floor area which includes a small grocery shop, a fish and chip shop, a vacant tenancy and a pizza shop. To the northern and western side of the building on Lot 26 is a bitumen driveway, and between the building and the Guildford Road frontage is parking and an accessway. There is a crossover between Guildford Road and Lot 26 at the western end of the frontage.
The site and Lot 26 are bounded on the north and west by Lot 27, which has an area of approximately 2.55 hectares and frontage to Slade Street, Guildford Road and, to the west, King William Street. At the southwestern corner of Lot 27 there are three hexagonal multiple dwelling buildings, and on the remainder of the site are grouped dwellings in some 17 separate buildings, with 209 dwellings in total. There is a gate in the fence between Lot 26 and Lot 27. Vehicular access to Lot 27 is gained from King William Street. It has been levelled so as to sit below the level of Slade Street. A vehicle exit ramp rises from Lot 27 to Slade Street adjacent to the vehicle ramp on the site.
Adjoining Lot 27 to the northwest is Lot 7, on which there is a further 34 multiple dwellings. Extending northwest along the eastern side of Slade Street some 850 metres from opposite the site to Whatley Crescent, which is adjacent to the PerthGuildford railway, the development is single houses. About six lots have been subdivided so that there are houses on rear battleaxe lots. On the western side of Slade Street, extending from north of the grouped dwellings on Lot 27 to Whatley Crescent, the development is also of single houses.
Diagonally opposite the site to the southeast over Guildford Road is a small park, adjacent to which is residential accommodation for the Civilian Maimed and Limbless Association. To the south on the opposite side of Guildford Road is a row of single houses, some of which are used for nonresidential purposes. Behind these houses is vacant land owned by the Council. Between that Council land and the Swan River to the south is local and regional open space.
Just over one kilometre to the northwest is the intersection of Whatley Crescent and King William Street. At this intersection is a local centre with shops and commercial premises, and nearby is the Bayswater Railway Station. King William Street goes under the railway line via a subway, and the Bayswater Hotel is just to the north of the Bayswater Railway Station.
Slade Street rises from Guildford Road to a crest about 200 metres to the north. The houses on the east side of Slade Road are generally higher than the roadway. About 20 metres to the east of the intersection of Slade Street and Guildford Road is the corner of Anzac Road, which runs to the northeast serving houses between Guildford Road and the railway line. About 250 metres to the west of the intersection of Guildford Road and Slade Street is the intersection of Guildford Road and King William Street, which is controlled by traffic lights.
There are liquor stores, without a drive through facility, in King William Street near to the Whatley Crescent intersection and just over one kilometre to the west on Guildford Road near the intersection with Garratt Road. The Bayswater Hotel, on the north side of the railway opposite the railway station, has packaged liquor sales and a drive through facility.

Planning framework

The site is zoned Special Purpose under the City of Bayswater Town Planning Scheme No 24 (TPS 24). The site is zoned Urban under the Metropolitan Region Scheme (MRS) and abuts Guildford Road, which is reserved as a 'primary regional road' in the MRS.
Lot 26 adjoining to the west is also zoned Special Purpose under TPS 24. Lot 27 adjoining to the north and the lots on the southern side of Guildford Road are zoned Medium Density Residential, with a coding of R40. The residential lots along Slade Street are zoned Residential, with a density coding of R17.5/40 under TPS 24.
The 'scheme objectives' at cl 1.6 of TPS 24 include:
(a)To zone the Scheme Area for the purposes described in the Scheme so as to strategically promote the orderly and proper development of land by making suitable provisions for the use of land within the Scheme Area;
(b)To secure the amenity, health and convenience of the Scheme Area and the inhabitants thereof;
...
(d)To make provisions as to the nature and location of buildings and the size of lots when used for certain purposes;
...
(h)To promote coordinated development proposals and vehicular circulation systems;
...
(j)To create a pedestrian, traffic and landscape environment which complements the wide range of activities carried on or proposed within the Scheme Area;
...
Clause 9.2 of TPS 24 is headed 'Special Purpose Zone'. It includes:
9.2.1The purpose and intent of the Special Purpose zone is to allow the Council to make provision for a special use or a combination of uses on a particular parcel/s of land where the provisions of the Zoning Table are not sufficiently adequate or comprehensive to achieve the same objective. The Council shall only make such provision by way of creating a Special Purpose Zone where it considers that the provisions:
(a)will satisfy a specific need in the locality where the subject land is situated;
(b)would enhance the amenity and the interest of orderly and proper planning of the locality; or
(c)would, for some other reason, be specifically appropriate or desirable.
9.2.2No person shall use any land, or any building or structure thereon in a Special Purposes Zone, except for the purpose set against the land in Appendix 3 and subject to compliance with any condition specified in the Appendix with respect to the land as approved by the Council.
Appendix 3 of TPS 24 lists special purpose zones. For the site and Lot 26, under the heading 'Permitted Uses', it states:
(1)Tavern
(2)Local Shopping[.]
For the site under the heading 'Discretionary Uses', the column is blank.
Clause 3.6 of TPS 24 lists matters to which due regard must be had when considering an application for planning approval. The list includes:
a)The aims and provisions of this Scheme ...
b)The requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment ... which has been granted consent for public submissions to be sought;
c)Any approved statement of planning policy of the Commission;
...
i)The compatibility of the use or development with its setting;
j)Any social issues that have an effect on the amenity of the locality;
...
n)The preservation of the amenity of the locality;
o)The relationship of the proposal to the development on adjoining land or on other land in the locality including but not limited to, the likely effect of a height, bulk, scale, orientation and appearance of the proposal;
p)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;
q)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 the traffic flow and safety;
...
v)Whether adequate provision has made for the landscaping of the land ...
...
y)Any relevant submissions received on the application;
...
It is also relevant, for the consideration of this matter, that there is a caveat on the title of the site, drawing attention to a deed for 'reciprocal access' which creates a right of carriageway incorporating a right to park vehicles in favour of the proprietors for the time being of Lot 26 over the site and for the proprietors for the time being of the site over Lot 26.
TPS 24 includes the following definition:
Shop: Means any building where goods are kept, exposed or offered for sale by retail, or within which services of a personal nature are provided (including a hairdresser, beauty therapist or manicurist) but does not include a showroom, fast food outlet or any other premises specifically defined elsewhere in this part.
TPS 24 does not include a definition of a liquor store. The term 'local shopping' used in Appendix 3 is not defined in TPS 24 and was not defined in the immediately preceding City of Bayswater Town Planning Scheme No 21. The term was defined in the City of Bayswater Town Planning Scheme No 13 (TPS 13) which was in force at the time the Special Purposes zone for the site was created. The definition of 'local shopping' under TPS 13 is referred to in the discussion of the issues below.

Proposed development

The Council's approval of 24 February 2009 included two shops, Shop 1 and Shop 2. The respondent disputed whether the February 2009 approval included the development that would be Shop 2. The Tribunal is of the view that Shop 2 was included in the February 2009 approval. The Tribunal, in this review, having regard to the wording of the February 2009 approval and the sketch included with that approval, adopts, with respect, the same view of development approved on the site as the Tribunal in Project Development WA Pty Ltd and City of Bayswater [2010] WASAT 41, in which was examined what was applied for and what was approved by Council. The Tribunal found, at [33], as also quoted above:
On the proper construction of the City's planning approval of 16 April 2009, there was no approval of the liquor store in Shop 2.
Proposed is the use of the floor area marked 'Shop 2' on the approved plans of 24 February 2009 as a 'liquor store 204sqm and drive through 71sqm'. No increase in the dimensions of Shop 2 is proposed.
The two approved fast food outlets (Red Rooster with a drive through, and a drive through coffee outlet) and Shop 1 were not included in the application for development approval as previously approved. Parking and landscaping would remain as approved.

Council's decision

At its meeting of 4 November 2009, the Council refused the application for the following reasons:
1.A liquor store is not considered to fall under 'local shopping' as listed in Appendix 3 Special Purpose Zone or 'shop', both listed in Town Planning Scheme No 24.
2.The proposal does not comply with the Town Planning Scheme No 24 in regard to the car parking requirements.
3.The proposal does not comply with Town Planning Scheme No 24 in regard to the landscaping requirements.
4.The proposal is considered to unduly impact on the amenity of the properties in the surround in area.
5.The proposal is not considered to be in the interests of proper and orderly planning as the parking bays and landscaping provided are considered insufficient.
6.Consideration of the objections received.
7.Council resolved at its Ordinary Meeting of 24 February 2009 to inform the applicant that a liquor outlet would be refused.

The issues

The issues that arise in this matter are:
1)Whether the proposed liquor store would operate within the definition of 'local shopping' for the purpose of TPS 24.
2)Whether there is adequate parking provided for the proposed liquor store.
3)Whether traffic generated by the proposed liquor store would have an adverse impact upon the inhabitants of the locality.
4)Whether the proposed liquor store would be inconsistent with orderly and proper planning and preservation of the amenities of the locality.
5)Whether proposed Amendment 43 to TPS 24, which would remove 'tavern' as a permitted use in the Special Purpose zone which contains the site, is significant.

Discussion

Issue 1: Whether the proposed liquor store would operate within the definition of 'local shopping' for the purpose of TPS 24

Appendix 3 of TPS 24 lists, as the two permitted uses for the site, 'tavern' and 'local shopping'. There is no definition for 'local shopping' or for 'liquor store' in TPS 24. The question then arises as to whether the proposed use can be considered to be local shopping for the purposes of TPS 24.
The site was rezoned to Special Purposes in about 1996 when the operative scheme was TPS 13. Under TPS 13, under the heading 'Interpretation' it stated:
Local Shopping: means the use of land or buildings for one or more of the following activities butcher shop, cake shop, greengrocer, delicatessen, smallgoods, hairdresser, newsagent and novelty shop. Any other activities not conforming with this definition, are only permissible with the approval of Council, if Council considers they serve the day to day shopping needs of a locality.
It is the respondent's position that it would be artificial to use the individual meanings of the words in the expression 'local shopping' and that consideration should be given to the phrase having a 'technical meaning'. The respondent submitted that it is therefore reasonable and relevant in the context of cl 19(1)(1) of the Interpretations Act 1984 (WA) to refer to the definition of 'local shopping' as it was when it first applied to the land that is, refer to the definition in TPS 13 for guidance. The Tribunal agrees that the expression 'local shopping' should be considered as a whole and that the definition in TPS 13 is an appropriate guide to the type of use it is to promote.
Mr David Caddy, a planner who was called as a witness by the respondent, pointed out that a liquor store was clearly not one of the specific activities listed in the first sentence of the definition under TPS 13. He said it was therefore open to the respondent to determine whether it considers the liquor store and a drive through serve 'the daytoday shopping needs of the locality'. Mr Caddy said that the specific wording makes 'need' a relevant consideration, and supported his submission with reference to cl 9.2.1(a) of TPS 24, which provides that a Special Purpose zone shall only be created when it is considered that certain circumstances warrant [it?], and these include where such a zone 'will satisfy a specific need in the locality where the subject land is situated'.
Mr Caddy said he did not believe there was a specific need for a liquor store in the locality. He referred to the three liquor stores within one kilometre of the site, one of which has a drive through facility. He also questioned whether the drive through facility was required for the locality, because it would be on a main road and it would cater mainly to passing traffic rather than to local shopping needs. He also questioned whether liquor was a daytoday shopping need, saying it was more an occasional purchase and not an item such as groceries purchased regularly by everybody.
Mr Ernest Samec, who both appeared for the applicant and was called as an expert planning witness, was of the opinion that it is not now reasonable to attempt to apply a definition of 'local shopping' once contained in the repealed TPS 13. It was his submission that there should be a flexible meaning to the use of local shopping. The evidence of Mr Samec was that the proposed development of the site, together with the uses on adjoining Lot 26 in the Special Purpose zone, amounted to a shopping centre of about 1,025 square metres. He said that a shopping centre of this floor space would sit comfortably within the 4,500 square metre upper limit for a neighbourhood or local centre under Western Australian Planning Commission Statement of Planning Policy No 4.2 'Metropolitan Centres Policy Statement for the Perth Metropolitan Region' (SPP 4.2) to support his submission that the proposed use would serve daily needs. Mr Samec went on to refer to definitions in the document titled State Planning Policy for Activity Centres for Perth and Peel prepared by the Western Australian Planning Commission (WAPC) in its review of SPP 4.2. At Appendix 2, it states:
Many of these centres are spread throughout Perth and Peel with the primary intention of providing shopping facilities to serve the daily needs of the local community. These are expected to be located within convenient walking and cycling distance of most homes.
Mr Samec said that, under 'Liveable Neighbourhoods', the policy document prepared by the WAPC in October 2007, 450 metres was identified as being convenient walking distance to a shopping centre. Mr Samec considered the locality, particularly within a 450 metre radius from the site, was not well served with liquor stores, particularly with a drive through facility, because of the distance of the small number of existing stores from both the higher density and single residential development in the vicinity of the site. In Mr Samec's opinion, the locality to be served by the proposed liquor store would be that conveniently reached by walking or by car.
Mr Samec argued that the proposed liquor store would serve and satisfy a specific need in the locality, providing for the convenient sale of packaged alcoholic beverages. The need is specific because packaged liquor can only be sold from licensed premises. Mr Samec said that the local centre on the site and Lot 26 would serve the local community because convenience food and packaged liquor could be bought close to home at one destination.
In respect of need, Mr Samec's evidence was that statistics reveal a regular consumption of alcohol per capita in Australia. This includes the regular purchasing of packaged alcohol consistent with the regular purchase of food and other convenience goods.
The Tribunal has formed the view that a liquor store with the added convenience of a drive through facility would serve the daytoday shopping needs of the locality. The proposed use would cater for passing trade on Guildford Road, which might be the majority of the trade, but there was no evidence in respect this. The Tribunal does not consider, however, that catering to passing trade is fatal to the proposal.
The Tribunal does not consider that the test should be that the product sold is required to be a vital 'need' in the sense of a lifesustaining item, such as basic food, shelter and water, but rather, as stated in the TPS 13 definition, a 'daytoday shopping need for many people'. In serving the daytoday needs, the Tribunal considers that this does not require purchase on a daily basis but, rather, to be a product that is used daily, or at least several times a week, by many people. This would be in contrast to a purchase or service required regularly by a community but only rarely by an individual or family: O'Connor and Town of Victoria Park [2005] WASAT 161 at [71] [74].
The objectors did not consider it was necessary for their daytoday needs, but the Tribunal notes that the site is within a mostly residential area. The Tribunal is of the view that, while not all locals would want a liquor store, a liquor store would serve those in the locality who wish to make regular use of it. A radius of about 450 metres around the existing liquor stores would not cover significant areas of the residential locality in the vicinity of the site.
The question does arise that, in serving the locality, the impact of the use might be too great and outweigh the utility of the service provided. The impact of the proposed liquor store on the local amenity, parking and traffic are addressed in the discussion of the issues below.
The Tribunal has formed the view that a liquor store serves a purpose analogous to the use 'local shopping' of Appendix 3 of TPS 24.

Issue 2: Whether there is adequate parking provided for the proposed liquor store

The development approval by Council in February 2009 included 32 parking spaces.
The Tribunal considers that it is not appropriate to view this application as an opportunity to look again at the planning requirements for the whole of the site. The dispute now before the Tribunal is considered to simply be whether the change of use of Shop 2 and a drive through facility adjacent to it as a liquor store would require a variation to the approved parking compared to the parking required for the approved development it will replace.
Mr Benham Bordbar, an engineer with expertise in traffic and parking, was called as a witness by the applicant. Mr Bordbar, in effect, conducted a review of the Council's decision to approve the fast food outlets and shops on the site with a total of 32 marked parking bays. In his opinion, the parking bays approved and the additional stacking bays that would be provided in the drive through areas of the two fast food outlets and proposed liquor store would be sufficient to accommodate parking for the site. In this regard, Mr Bordbar effectively endorsed the Council's earlier decision. He was also of the opinion that changing Shop 2 to a liquor store with a drive through bottle sales shop would not result in parking problems being generated by the development.
Table 2 of TPS 24 provides minimum parking requirements for particular classes of development. This does not include a liquor store which is not a separate use class in the zoning table of TPS 24. Consideration of the zoning table reveals that a land use most analogous to a liquor store would be a shop, the definition of which is set out in full above, and includes goods being offered for sale by retail. The Tribunal considerers it a reasonable assumption, in the circumstances, that the parking requirement for the liquor store would therefore be virtually the same as for the unspecified shop use it would replace.
Each of the six residents of Slade Street who appeared as witnesses considered there to be a parking problem in Slade Street, commenting that they considered the vehicles causing the problem were associated with the multiple and grouped dwellings. They were concerned that vehicles now parked on the site, which is vacant, and customers from the proposed development would park in Slade Street, making worse what they considered to be a parking problem.
The Tribunal has noted the residents' concern about car parking in Slade Street. The multiple and grouped dwelling site has a frontage of about 120 metres to Slade Street. The Slade Street carriageway is about 10 metres wide. It was not readily apparent to the Tribunal why residents of the single houses might be allowed to park in Slade Street but not the residents of the multiple dwellings. The view revealed that vehicles parked on each side of the road left sufficient carriageway for two lanes of traffic.
The Tribunal is concerned that there be consistency in decisionmaking. In February 2009, approval was granted for development which required 32 marked bays on the site. The Tribunal has formed the view that a liquor store is a form of use consistent with a shop, and a shop use was previously approved.
The Tribunal has concluded that there is adequate parking provided for the proposed liquor store. The concern of residents about any perceived parking problems in Slade Street is considered by the Tribunal not to be a consequence of approval of the development on the site. The residents' concerns about policy is a matter that would need to be addressed by the Council by a means other than refusing the development proposed for the site in this instance.

Issue 3: Whether traffic generated by the proposed liquor store would have an adverse impact on the inhabitants of the locality

Residents of Slade Street, with the assistance of councillors including Councillor Marlene Robinson and Mayor Terry Kenyon, have formed the Slade Street Traffic Calming Committee. This was the result of residents' concerns about vehicle numbers in Slade Street, the speed at which some vehicles travel, and what they believe to be the use of Slade Street as a link between Whatley Crescent and Guildford Road by drivers seeking to avoid delays at the traffic lights at the intersection of King William Street and Guildford Road.
In 2008, the City's Director of Technical Services wrote a letter to a resident (Exhibit 18) informing her that the average weekday traffic volume in the northern end of Slade Street was 1,350 vehicles per day and that 15% of those vehicles were considered to exceed 65 kilometres per hour. The letter said that the technical officers of the City did not believe that traffic management was required at that location.
Mayor Kenyon, Councillor Robinson and the residents of Slade Street, including those who appeared as witnesses at the hearing, remained of the view that there is a traffic problem in Slade Street and money was provided to conduct a further study. The residents are concerned that the additional traffic generated by the proposed development, and particularly the drive through element, will attract additional traffic to Slade Street, increasing the problems that they consider exist. The respondent submitted that Slade Street was a residential street, and it was reasonable of the residents to expect that traffic would be controlled and that no additional extraneous traffic would be introduced.
Mr Bordbar considered that Slade Street was properly classified as a local distributor road because it connected a regional road, Guildford Road, and Whatley Crescent. He considered it inappropriate to consider Slade Street as a 'quiet residential road'.
Mr Bordbar estimated that all of the uses on the site would generate about 900 vehicles per day, with the proposed bottle shop generating about 180 vehicles per day. He estimated that up to 75% of users of the site would be traffic from Guildford Road, and the Tribunal notes that comments from the planning experts were consistent with the majority of trade being generated from Guildford Road. Mr Bordbar calculated that, with the split between those using the site as 25% using the Slade Street crossover and 75% using the Guildford Road crossover, during a typical evening peak hour between 5 pm and 6 pm, the increase in vehicles in Slade Street would be about 1%.
The proposed liquor store development will result in an increase in traffic on Slade Street. It is also apparent to the Tribunal that a proportion of the traffic from the proposed development using Slade Street would be local residents making use of the liquor store and fast food outlets, although there was no particular evidence on what proportion that would be.
The Tribunal has formed the view that the increase in traffic from the proposed development would make a small impact only on the current traffic volumes of Slade Street and therefore a small impact on the inhabitants of the locality. The Local Traffic Calming Committee is hopeful that the study will address the problem of through traffic using Slade Street. The Tribunal has formed the view that any measures taken as a consequence of the study would have a significantly greater impact on traffic than would refusing the development.

Issue 4: Whether the proposed liquor store would be inconsistent with orderly and proper planning and preservation of the amenities of the locality

Orderly and proper planning is identified in TPS 24 as a consideration at cl 3.6(b), which is concerned with matters to be considered when assessing a development proposal. Clause 3.6(b) also requires regard be had to relevant town planning scheme amendments which have been advertised for comment. TPS 24 is subject to Amendment 43 which would affect the use of the site, and this is discussed under issue 5 below.
Clause 9.2.1(b) of TPS 24 also lists orderly and proper planning as a consideration when a Special Purposes zone is created. To be allowed, development would have to be considered consistent with the objective for the purpose of the Special Purpose zone.
The Tribunal has formed the view that the proposed liquor store would be consistent with orderly and proper planning for the current purposes of the Special Purpose zone under TPS 24. This is because the Tribunal has found, as discussed under issue 1 above, that the proposed use would be consistent with providing daytoday shopping needs, and therefore can be considered as 'local shopping', which is 'permitted' in this Special Purpose zone under TPS 24. The Tribunal has further found that the proposed development, which will be one part of the more extensive development of the site, would not give rise to parking and traffic problems, as discussed above under issue 2 and issue 3, respectively.
Clause 3.6(n) of TPS 24 requires that regard be had to preservation of the local amenity, and cl 3.6(j) of TPS 24 refers to any social issues that have an effect on the amenity of the locality. Local amenity is also a consideration at cl 9.2.1(b) of TPS 24 in respect of the creation of a Special Purposes zone.
In considering impact on amenity, the Tribunal is required to make an objective assessment of any impact the development would have and whether that impact, on current and likely future amenity, would be acceptable: Sunbay Development Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [21] and [22]. The Tribunal is also assisted by having regard to the views of local residents: Canning Mews Pty Ltd v City of South Perth [2005] WASAT 22; (2005) 41 SR (WA) 79 at [48].
The Tribunal heard from residents of Slade Street and Councillor Robinson and Mayor Kenyon, who believe that the amenities of Slade Street would be adversely affected if the proposed development were to be allowed.
The Tribunal notes, from the plans for development of the site, that the proposed use would not be readily discernable as having a greater physical impact than the approved drive through fast food and shop uses, and signage for all the developments on the site is to be the subject of a separate application.
A concern of the residents was that parking and traffic problems already said to exist would be exacerbated. Parking and traffic have been addressed above. The Tribunal has formed the view that the difference the proposed use will have on parking and traffic would also not be sufficiently discernible to warrant a refusal.
A significant additional cause for concern expressed by the residents was that the proposed liquor store and drive through would result in an increase in what they considered to be antisocial behaviour, much of it alcohol influenced, in Slade Street. This, they said, included incidents of public arguments, and swearing, fighting, vandalism of public and private property and littering. Littering was encountered at least once a week and comment was made that the poor behaviour by some people currently attracted to the grouped and multiple dwellings would become greater. It was also said that those who were attracted to liquor stores elsewhere and then behaved badly in public places would now be attracted to the proposed liquor store.
The Tribunal acknowledges that, in many cases, such as in this instance, the objections of residents are based on an apprehension or fear of what may happen, but those views must be balanced by the Tribunal with the evidence before it. The site will be developed with more than the proposed liquor store. The other approved uses are not of a type at which liquor could be legally consumed. The site is not, therefore, one which will result in a concentration of people legitimately gathering to drink alcohol.
The Tribunal did not have any evidence that any antisocial behaviour in the locality was associated with any existing liquor store or, indeed, any particular local group of residents or visitors to the locality. It was also not apparent to the Tribunal why those who might be buying liquor elsewhere and behaving badly in Slade Street would intensify that behaviour or, in fact, why the presence of the proposed liquor store must result in additional people behaving poorly in the locality.

In respect of issue 4, the Tribunal has formed the view that the proposed development would be consistent with orderly and proper planning in respect of the current planning framework and maintaining the amenities of the locality.

Issue 5: Whether proposed Amendment 43 to TPS 24, which would remove 'tavern' as a permitted use in the Special Purpose zone which contains the site, is significant

At Appendix 3 of TPS 24, the permitted uses for the site are currently 'tavern' and 'local shopping'. Proposed Amendment 43 to TPS 24 proposes:
… to delete the current uses of the subject land and insert 'shop' and 'office' as 'permitted' uses and 'lunch bar', 'fast food outlet', 'consulting rooms (medical)', 'medical centre', 'grouped dwellings' (R40) and 'multiple dwellings' (R40) as 'discretionary' uses at Lot 26 (Nos 465 469) Guildford Road, Bayswater; and Lot 101, No 497 Guildford Road, Bayswater.
Proposed Amendment 43 would also include for the site in Appendix 3 of TPS 24 conditions as follows:
Permitted uses
•In this Schedule, a 'liquor store' is not permitted and a liquor store shall have the same meaning as detailed within the Liquor Control Act
Discretionary uses
•In this Schedule, the total amount of GLA for the 'fast food outlet' use(s) across both lots shall not exceed 500 square metres.
The site is, of course, Lot 101. The City advertised proposed Amendment 43 and invited written comments to be submitted by 12 July 2010. Clause 3.6(b) of TPS 24 requires that regard be had to any relevant proposed amendment to TPS 24 that has been advertised. The respondent, citing Nicholls and Western Australian Planning Commission [2005] WASAT 40, helpfully summarised the considerations, when giving weight to a proposed amendment, as follows:
1)The degree to which the draft addresses the specific application.
2)The degree to which the draft is based on sound planning principles.
3)The degree to which its ultimate approval could be considered 'certain'.
4)The degree to which its ultimate approval could be considered imminent.
It was the respondent's submission that the Council has done all that it can do under the regulations in its steps to amend TPS 24 so that liquor cannot be sold from the site. If the use was to be allowed and Amendment 43 was gazetted, then, under TPS 24, the liquor store would, from its commencement, be a nonconforming use.
The respondent said that Amendment 43 directly addressed the proposed development. It was also argued that the purpose of the amendment was to remove the uncertainty associated with the undefined permitted use 'local shopping' and to remove from the permitted uses 'tavern', which was not now considered an appropriate use for the site. The proposed amendment was therefore considered to be based on sound planning principles. The respondent further argued that, because of the amendment being an expression of the public opposition for liquor outlets on the site and the Council's stated position that it would not support a liquor store application in the Liquor Licensing Court, then, as far as the Council was involved, the amendment should be considered certain. Counsel for the respondent pointed out that the advertising of Amendment 43 would be completed soon after the hearing.
Proposed Amendment 43 was the subject of a Council meeting on 2 February 2009. The minutes are provided in the respondent's bundle of documents. The minutes reveal Council's intention was to remove the difficulty associated with the undefined use 'local shopping', include uses defined in TPS 24 and delete the use 'tavern'. What is clear from the minutes is that the Council accepted that the site is considered appropriate for uses which benefit from exposure to passing vehicle traffic on Guildford Road and adjacent bus routes. This appears to be the basis for the inclusion of consulting rooms (medical) and medical centre, fast food outlets, shops and offices.
A liquor store was not mentioned in the officer's report to Council. The proposed 'conditions' to be included in Appendix 3 of TPS 24 were inserted by resolution of the Council. From the comments of Councillor Robinson at the hearing, it appears that the inclusion of the 'conditions' was as a result of the submissions made in response to the advertising of the proposed development.
It is not known what submissions the advertising of proposal Amendment 43 will generate and what merit there will be in those submissions. Mr Joseph Tilli, the principal of the applicant company, said he opposed the amendment.
The Tribunal has formed the view that, while the proposed Amendment 43 directly addresses the proposed development, and residents of Slade Street object to a liquor store, it is not apparent, on the evidence, why certain uses with drive through facilities and directed to passing trade from Guildford Road are considered acceptable for the site, but a liquor store offering a similar service is not. It is also noted that the proposed amendment was not initiated, nor is supported, by the owner of the site. For these reasons, and because of the conclusions the Tribunal has reached on the other issues above, the Tribunal considers it is not readily apparent what the Minister for Planning will make of the amendment. In that regard, therefore, the Tribunal considers it is not conclusive that Amendment 43 to TPS 24 is based on sound planning principles or that it can be viewed as 'certain'.
The Tribunal has therefore formed the view that, in relation to issue 5, proposed Amendment 43 is not of sufficient weight to overcome the conclusions reached in respect of the four other issues as outlined above.

Conclusion

The first issue was whether the proposed liquor store would operate within the definition of 'local shopping' for the purpose of TPS 24. The Tribunal formed the view that the proposed development would be consistent with serving ' the daytoday shopping needs' of this largely residential locality.
The second issue was whether there is adequate parking provided for the proposed liquor store. The Tribunal found that there would be adequate parking for the proposed liquor store. This was because of the terms of the development and associated parking approved for the site in February 2009, and the proposed use having similar parking requirements to the approved use it would replace.
Issue 3 was whether traffic generated by the proposed liquor store would have an adverse impact upon the inhabitants of the locality. The evidence before the Tribunal was that the proposed use would generate traffic, particularly in Slade Street, but that the traffic would not be a significant addition to existing traffic volumes and to the current concerns about traffic referred to by objectors to the development.
Issue 4 was whether the proposed liquor store would be inconsistent with orderly and proper planning and preservation of the amenities of the locality. The Tribunal formed the view that the proposed use would be consistent with the orderly and proper planning of the locality because it would be a use consistent with the current planning purpose of this Special Purpose zone and would not have such an impact on the local amenity as to warrant refusal.
The final issue was whether proposed Amendment 43 to TPS 24, which would remove 'tavern' as a permitted use in the Special Purpose zone which contains the site, is significant. The amendment would also include a condition that a liquor store is not permitted. The Tribunal has concluded that, while proposed Amendment 43 must be weighed, in the circumstances, it is not of such significance as to outweigh the conclusions reached in respect of the four issues addressed above.
The Tribunal has therefore found that there is a case for granting the proposed liquor store and drive through facility conditional planning approval.
The Tribunal would add that the conclusion reached in this review does not purport to, nor can it, change the obligations of the applicant as owner of the site set out in the deed providing reciprocal access and parking rights between Lot 26 and the site, and to which the City is a party. The Council's development approval of February 2009 will require the deed to be amended to accommodate the buildings and accessways approved in February 2009 and by this approval. The Tribunal would make the comment that reciprocal access and parking across the two lots achieves a sound planning outcome.

Conditions

The respondent provided, without prejudice to its position, a schedule of conditions it would want imposed, were the development allowed. Discussion of these conditions at the hearing resulted in some variations to the wording of certain conditions, and deletion of conditions, which refer to obligations under the Liquor Control Act 1988 (WA).

Orders

1.The application for review is allowed.
2.The decision of the Council to refuse the proposed change of use of Shop 2 to a liquor store with a drive through facility at Lot 101 Guildford Road, Bayswater is set aside and planning approval is granted, subject to the following conditions:
1)This approval is valid for a period of two years from the date of this decision. If the development/use the subject of this approval is not substantially commenced within two years, the approval shall lapse and be of no further effect. Where an approval has lapsed, no development/use shall be carried out without the further approval of the City of Bayswater having first been sought and obtained.
2)The development shall be carried out only in accordance with the terms of the application as approved herein and the plans dated 7 July 2009.
3)In accordance with the Local Government (Miscellaneous Provisions) Act 1960 (WA) and the Building Regulations 1989 (WA), a building licence shall be obtained prior to commencement of any building works.
4)No sign, including signs for the proposed development and including signs painted on the building, shall be displayed unless an application for planning approval for it is made to and approved by the City of Bayswater.
5)No storage or display of goods outside the building to the satisfaction of the City of Bayswater.
6)On completion of construction, all excess articles, equipment, rubbish and materials being removed from the site and the site left in an orderly and tidy condition.
7)Landscaping and reticulation must be completed in accordance with an approved detailed landscape plan, as required by condition (d) of the development approval issued by the City of Bayswater on 24 February 2009, prior to occupation of the development, and the landscaping and reticulation is thereafter to be maintained to the satisfaction of the City of Bayswater.
8)All stormwater and drainage runoff produced onsite is to be disposed of onsite by the use of soakwells to the satisfaction of the City of Bayswater. Connection to the City of Bayswater's stormwater system, where available, may be permitted as an overflow, only if to the satisfaction of the City of Bayswater.
9)The vehicle parking area shall be sealed, kerbed, drained and linemarked in accordance with the approved plans and specifications, and shall be thereafter maintained to the satisfaction of the City of Bayswater.
10)All vehicle crossings being upgraded, designed and constructed to the satisfaction of the City of Bayswater. Payment for the crossover is required prior to the issue of a building licence.
11)Any existing septic tanks, leach drains or soakwells on the property must be pumped out, completely removed, and excavations backfilled with clean sand and compacted. This must be undertaken under the supervision of the environmental health officer.
12)Any industryderived liquid waste is to be disposed of in accordance with the Environmental Protection (Liquid Waste) Regulations 1996 (WA) and/or the requirements of the Water Corporation, Water and Rivers Commission, and the Department of Environmental Protection.
13)The noise generated by construction and operational activities is not to exceed the levels prescribed under the Environmental Protection (Noise) Regulations 1997 (WA).
14)The applicant is to make arrangements to the satisfaction of the Water Corporation for the provision of reticulated sewerage to the lot within the development.
15)Sanitary conveniences are to be provided in accordance with the provisions of the Building Code of Australia, Health Act 1911 (WA) and the Occupational Safety Health Regulations.
16)Compliance with the Health (Air Handling and Water Systems) Regulations 1994 (WA) and relevant Australian Standards, such as AS 1668.2 'the use of mechanical ventilation and air conditioning in buildings' and AS 3666 'airhandling and water systems of buildings microbial control part 1: design, installation and commissioning'.
17)Ventilation is to comply with the requirements of the Sewerage (Lighting, Ventilation and Construction) Regulations 1971 (WA) and the Building Code of Australia.
18)Compliance with the City of Bayswater Health Local Laws.
19)The applicant is to submit a copy of the acoustic noise report addressing the noise impact from the proposed development to the City of Bayswater.
20)A bin area is to be provided adjacent to the building with a minimum area of 10 square metres and a permanent water supply and drainage facility for washdown. The bin area is to be screened by a gate and brick walls or other suitable material to a height of not less than 1.8 metres. The bin area shall be accessible via a suitably constructed service road that will allow heavy vehicle movement and shall be a minimum of 6 metres from the adjoining residential lot.
21)Any modifications to kerbing are to be to the satisfaction of the City of Bayswater.
22)No earthworks shall encroach onto the Guildford Road reserve.
23)No stormwater drainage shall be discharged onto the Guildford Road reserve.
24)The applicant shall make good any damage to the existing verge vegetation within the Guildford Road reservation.
25)All vehicle access to or from Guildford Road must be via the existing crossover at Lot 26.
26)No earthworks shall encroach onto the Slade Street road reserve.
27)No stormwater drainage shall be discharged onto the Slade Street road reserve.
28)The applicant shall make good any damage to the existing verge vegetation within the Slade Street road reservation.
29)This approval does not limit or alter the conditions of approval as they relate to the development approval issued for development on the site dated 24 February 2009, except where implicitly provided for in the plans or a condition of approval.

I certify that this and the preceding [96] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER