PROSSER and CITY OF BUNBURY - [2018] WASAT 41

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   PROSSER and CITY OF BUNBURY [2018] WASAT 41
MEMBER:   DEPUTY PRESIDENT, JUDGE PARRY
HEARD:   8 MAY 2018
DELIVERED          :   8 MAY 2018
PUBLISHED           :   7 JUNE 2018
FILE NO/S:   DR 389 of 2017
BETWEEN:   GEOFFREY PROSSER
Applicant
AND
CITY OF BUNBURY
Respondent

Catchwords:

Town planning - Showroom development - Conditions of development approval - Developer contributions - Requirement that applicant contribute 50% of cost of upgrading footpath located adjacent to boundary of site - Whether condition may lawfully be imposed in absence of development contribution plan - Whether condition involves 'levy[ing] a contribution for the provision of infrastructure or facilities for an area' within meaning of reg 73(1) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) - Whether condition in breach of second 'Newbury test' that it must fairly and reasonably relate to the development - Whether sufficient nexus between condition and development

Legislation:

City of Bunbury Local Planning Scheme No. 8, cl 47
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 70, reg 71(1), reg 72, reg 73(1)
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Condition set aside

Summary of Tribunal's decision:

Mr Geoffrey Prosser sought review of a condition of development approval for a showroom development imposed by the City of Bunbury requiring him to contribute $6,240 (or 50%) towards the cost of upgrading the footpath adjoining one of the boundaries of the development site. Mr Prosser contends that the condition cannot lawfully be imposed for each of two reasons. First, because there is no development contribution plan in place for the area of the site and therefore the condition is in breach of reg 73(1) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA). Secondly, Mr Prosser contends that the condition does not fairly and reasonably relate to the proposed development, in breach of the second of the so-called 'Newbury' tests for the validity of a condition of planning approval.
The Tribunal determined that the condition is not in breach of reg 73(1) of the LPS Regulations, because the condition does not involve 'a contribution for the provision of infrastructure or facilities for an area ...' within the meaning of that sub-regulation. Rather, the condition requires a contribution for the upgrading of part of the footpath adjacent to the site and on the basis that the proposed development would increase pedestrian traffic on it.
However, the Tribunal determined that, on the evidence presented to it, the condition does not fairly and reasonably relate to the proposed development. This is because, on the evidence presented to the Tribunal, the Tribunal was not satisfied that the proposed development would, in fact, involve any greater use of the footpath by pedestrians generated by the development on the site than the current use of the site, and indeed may well involve less pedestrian use of the footpath than the current use of the site. In the absence of a sufficient nexus between the condition and the development, the condition cannot lawfully be imposed.
The disputed condition was therefore set aside.

Category: B

Representation:

Counsel:

Applicant	:	Mr J Skinner
Respondent	:	Mr DW McLeod

Solicitors:

Applicant	:	LSV Borrello Lawyers
Respondent	:	McLeods Barristers and Solicitors

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

Newbury District Council v Secretary of State for the Environment [1981] AC 578
Reid v Western Australian Planning Commission [2016] WASCA 181
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Geoffrey Prosser seeks review, under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision of the City of Bunbury (City or Council) to grant Mr Prosser conditional development approval for the construction of a building with a gross floor area of 2,108m² comprising two showrooms and 43 car parking bays at No 27 (Lots 1 and 2) Spencer Street and No 4 (Lot 23) Zoe Street, Bunbury (site).
In particular, Mr Prosser challenges the imposition of condition 25 on the grant of development approval. As modified by the Council on 6 March 2018 under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), condition 25 states as follows:
Before the development commences, the developer shall contribute $6,240 towards the upgrading of the Spencer Street footpath located adjacent to the boundary of the lot/development site.
It is common ground that $6,240 is 50% of the City's estimate of the cost of upgrading the existing 1.5 metre wide footpath adjacent to the site on Spencer Street into a two metre wide footpath.

Site, locality and Spencer Street footpath

No 27 Spencer Street is located at the south-eastern corner of the intersection of Spencer Street and Cornwall Street and has frontages to both of those roads. That property currently comprises a single building and hardstand operated by Beaurepaires for tyre repairs. The existing building has a gross floor area of 819m². No 4 Zoe Street comprises a vacant lot, the western boundary of which adjoins the eastern boundary of the property at No 27 Spencer Street. The site has a total area of 3,356m².
The site is located to the immediate south of the Bunbury Central Business District (CBD). Spencer Street, in the locality of the site, is designated as an Activity Corridor under the City of Bunbury Local Planning Strategy. The strategic importance of the Spencer Street Activity Corridor, according to the Local Planning Strategy, is for its role in terms of public transport and as part of the bicycle network of the City.
The Local Planning Strategy identifies the Spencer Street Activity Corridor as an area in transition and anticipates that this area will meet the increased employment and higher density needs of the City. As such, as Mr Matthew Young, a town planner and a senior officer of the City, said in evidence, the Spencer Street Activity Corridor 'is designed and expected to be well-served by public transport, footpaths and cycle paths'.
The site and land generally in the Spencer Street Activity Corridor was rezoned recently from 'Mixed Business' under the City of Bunbury Town Planning Scheme No. 7 (TPS 7) to 'Mixed Use Commercial' (along Spencer Street) and 'Service Commercial' (land not fronting Spencer Street) upon the gazettal of the City of Bunbury Local Planning Scheme No. 8 (LPS 8) on 9 March 2018. An objective of the Mixed Use Commercial zone under LPS 8 is:
To facilitate the development of walkable and vibrant places:
•with a distinctive sense of place that maintains a high standard of urban design and amenity;
•within a walkable distance to a designated higher order activity centre; and
•with convenient access to existing or future high frequency public transport routes.
The condition of the Spencer Street footpath on the road reserve immediately adjacent to the site was formally assessed by Mr Kyle Daly, a civil engineer and a senior officer of the City, on 9 April 2018, applying the Institute of Public Works Engineering Australia (IPWEA) Conditional Assessment and Asset Performance Guidelines (Guidelines). In the section of the Spencer Street footpath in the road reserve abutting the site, Mr Daly found four trip hazards, more than eight instances of cracking (where areas are misaligned), more than 14 non-uniform gaps between sections and one instance of potential for ponding and therefore slipperiness.
These defects in the current footpath are, of course, existing issues and, as Mr Prosser submits, the Council has care, control and management of that footpath.
Mr Daly gave evidence that the assessment that he undertook applying the IPWEA Guidelines resulted in the footpath condition being rated as 'level 3', with 'level 1' being 'as new' and 'level 5' being 'requires replacement'. 'Level 3' means a moderate level of defects, affecting up to 20% of the footpath area. Therefore, applying the IPWEA Guidelines, the footpath does not currently need to be replaced, although it may be convenient to do so to avoid the particular hazards referred to.
The width of the footpath, as I have said, is 1.5 metres. Mr Daly referred to s 6.2.1 of the Austroads Guide to Road Design, Pt 6A: Pedestrian and Cycle Paths, which states that the desired minimum width of footpaths with high pedestrian volume in commercial and shopping areas should be 2.4 metres (or even wider, based on demand). The disputed condition 25 is premised on an increase in width of the relevant footpath from 1.5 metres to 2 metres, rather than 2.4 metres, because the Council recognises that an existing Telstra pillar and NBN node would make increasing the width of the footpath to 2.4 metres costprohibitive.
Mr Daly also referred to the provisions of the Liveable Neighbourhoods planning document, Section R32, Element 2 Movement Network, which states that footpaths in streets should be 1.5 metres in width and should be widened to 2 metres minimum width in the vicinity of schools, shops and other activity centres.

Development application and review proceeding

As indicated earlier, the development application sought approval for the construction of a 2,108m² gross floor area building, comprising two showrooms and 46 car parking bays.
The development application was approved by the Council on 31 October 2017 as a 'Permitted' use in the Mixed Business zone of TPS 7. It remains a 'Permitted' use under the Mixed Use Commercial zoning of the site under LPS 8.
The development application was approved by the Council subject to 31 conditions. The notice of determination was issued on 13 November 2017.
On 4 December 2018, Mr Prosser sought review of seven of the 31 conditions by the Tribunal. Following mediation in the proceeding, on 6 January 2018, the City was invited to reconsider its decision under s 31 of the SAT Act and it proceeded to do so on 6 March 2018. The Council deleted four conditions that were disputed, modified two conditions and affirmed one condition. Mr Prosser accepts the affirmed condition and one of the modified conditions, but seeks review of the second modified condition, namely condition 25. For completeness, that condition, as originally imposed, was as follows:
Before the development commences the developer shall contribute towards the upgrading of the Spencer Street footpath located adjacent to the boundary of the lot/development site. The development contribution amount shall be not less than 50 percent (50%) of the total cost of the upgrade works, up to the maximum value of $10,000. Prior to development commencing, the developer is to notify the City of Bunbury in writing of its intent to arrange the scheduling and construction for the upgrade works, which is to be undertaken at a time mutually agreed upon by both parties in writing.
The modified form of condition 25 is to the same effect as the earlier version of condition 25, but sets a maximum amount. In both versions, the City proposes to contribute half of the cost and requires the applicant, Mr Prosser, to contribute half of the cost. As indicated earlier, the condition now states:
Before the development commences, the developer shall contribute $6,240 towards the upgrading of the Spencer Street footpath located adjacent to the boundary of the lot/development site.

Issues for determination

The following two issues arise for determination:
(1)Can condition 25 lawfully be imposed?
(2)If the answer to issue (1) is 'Yes', should condition 25 be imposed? That is, is condition 25 appropriate and reasonable in the circumstances of this case?

Can condition 25 lawfully be imposed?

Mr Prosser contends that condition 25 cannot lawfully be imposed for each of two reasons. First, Mr Prosser submits that condition 25 cannot be imposed as it is contrary to reg 73(1) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs). Regulation 73(1) of the LPS Regs states as follows:
A local government must not levy a contribution for the provision infrastructure or facilities for an area unless there is a development contribution plan in place for the area.
The term, 'infrastructure' is not defined in the LPS Regs or in the PD Act. However, both parties point to the reference in App 1 of State Planning Policy 3.6 Development Contributions for Infrastructure (SPP 3.6) in which 'footpaths' and 'pedestrian access ways' are included as 'infrastructure works'. I accept the common ground position of the parties that 'infrastructure' relevantly includes a footpath. That accords with the ordinary meaning of the term 'infrastructure' and is supported by the provision in App 1 of SPP 3.6.
It is also common ground that no development contribution plan is in place for the purposes of reg 73(1) of the LPS Regs and furthermore that there is no special control area under cl 47 of the LPS 8. The significance of the absence of a special control area to Mr Prosser's first submission is apparent from reg 70 of the LPS Regs, which is the first provision in Pt 7 comprising regs 70 to 73 of the LPS Regs. Regulation 70 of the LPS Regs states as follows:
(1)A local government may determine that an area of land within a scheme area is a development contribution area if development or subdivision of the land would require the provision of infrastructure or facilities in the area to support the development or subdivision.
(2)A development contribution area must be shown as a special control area on the scheme map for the local planning scheme.
As indicated earlier, there is no development contribution plan in relation to the site, in respect of footpaths or any other infrastructure, and the Scheme Map of LPS 8 does not show the site as part of a special control area.
Before turning to the question of whether the condition in question is in breach of reg 73(1) of the LPS Regs, I should also refer to reg 71(1) and reg 72, as those provisions are contextually relevant to the proper interpretation of reg 73(1) of the LPS Regs. Regulation 71(1) of the LPS Regs states as follows:
A local government must prepare a development contribution plan for each area identified in a local planning scheme as a development contribution area.
Regulation 72 of the LPS Regs states as follows:
The identification of a development contribution area and the preparation of a development contribution plan, or the amendment of an area or plan, are to be prepared as part of the preparation or adoption of a local planning scheme or as a complex amendment to a local planning scheme.
Mr Prosser contends that the disputed condition cannot lawfully be imposed, because it involves the 'levy[ing] [of] a contribution for the provision of infrastructure … for an area' (within the meaning of reg 73(1) of the LPS Regs) in circumstances where there is no development contribution plan in place for the area. Mr Prosser therefore submits that condition 25 is in breach of reg 73(1) of the LPS Regs and cannot lawfully be imposed.
The City submits that reg 73(1) of the LPS Regs does not apply in relation to the disputed condition, being a condition imposed on a particular development to address the anticipated planning impacts of that particular development.
I said earlier that the Local Planning Strategy identifies the Spencer Street Activity Corridor as an area in transition and anticipates that the area will meet the increased employment and higher density needs of Bunbury. I also referred to the evidence of Mr Young, which was not questioned or contradicted and which I accept, that the Spencer Street Activity Corridor 'is designed and expected to be well-served by public transport, footpaths and cycle paths'.
It is clear from the Local Planning Strategy and from the objective of the Mixed Use Commercial zone referred to earlier (at [7] above) that the Council's planning vision for the Spencer Street Activity Corridor includes an increase in pedestrian traffic and the servicing of that corridor by public transport, footpaths and cycle paths. However, in my view, as the City submits, when read in context and, in particular, in the context of the other provisions of Pt 7 of the LPS Regs that I have referred to, reg 73(1) does not preclude or prohibit the lawful imposition of the disputed condition in this case.
In my view, reg 73(1) of the LPS Regs does not preclude the imposition of condition 25, because condition 25 does not involve 'a contribution for the provision of infrastructure or facilities for an area …' within the meaning of reg 73(1).
Both parties correctly submit that the meaning of the words in reg 73(1) are to be interpreted in the context of the other provisions of Pt 7 of the LPS Regs. The words 'an area' in reg 73(1) have the same meaning as the words 'the area' at the end of the sub-regulation in the expression 'unless there is a development contribution plan in place for the area'. When read in the context of reg 70(1), reg 71(1) and reg 72 of the LPS Regs, 'area' in reg 73(1) means a 'development contribution area' determined by the local government where development or subdivision of the land in that area would require the provision of infrastructure or facilities in the area to support the development or subdivision.
'Area' in reg 73(1) therefore means 'development contribution area'. There is no development contribution area under LPS 8 in relation to the site and therefore condition 25 does not levy a contribution for the provision of infrastructure for an 'area', that is to say, for a development contribution area for the purposes of Pt 7 of the LPS Regs.
Furthermore, and in any case, condition 25 does not levy a contribution for the provision of infrastructure 'for an area', because although, as Mr Prosser submits, the area of the footpath, the subject of condition 25, forms part of a longer footpath on Spencer Street, the contribution sought by condition 25 only requires a contribution for the upgrading of the part of the footpath adjacent to the site and on the basis that the proposed development has a relevant nexus to that particular piece of infrastructure, by increasing pedestrian traffic on it.
That is not the same thing as levying a contribution for the provision of infrastructure 'for an area'. Rather, the infrastructure, the subject of the condition, is for the proposed development. Whether there is, in fact, a sufficient nexus between the development and the infrastructure in question is a different matter and I will turn to that shortly.
Finally, condition 25 does not involve levying a contribution for the provision infrastructure 'for an area', because the local government has not, whether in terms or in effect, determined under reg 70(1) of the LPS Regs that:
… development or subdivision of land would require the provision of infrastructure or facilities in the area to support the development or subdivision.
While the Council certainly has expressed a planning vision in its Local Planning Strategy and in the zone objective that I have referred to (at [7] above) and has sought developer contributions when the occasion has arisen from the developers of other sites in the vicinity of Spencer Street, it has not, in terms or in effect, in my view, determined that development or subdivision of land in the area requires that footpath augmentation occur to support the development or subdivision. While that is certainly the planning vision, or forms part of the planning vision of the Council, it is not, in my view, a determination for the purposes of reg 70 of the LPS Regs that an area of land within the Scheme Area is one in respect of which development or subdivision of land would require the provision of infrastructure or facilities in the area to support the development or subdivision.

The second reason Mr Prosser submits that condition 25 cannot lawfully be imposed is that it is in breach of the second of the so-called 'Newbury tests' for the validity of a condition of planning approval.
The 'Newbury tests' derive their name from the decision of the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578. The Newbury tests were stated by McHugh J in the High Court of Australia in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 in the following terms [57]:
… A condition attaching to a grant of planning permission will not be valid therefore unless:
1.The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2.The condition reasonably and fairly relates to the development permitted.
3.The condition is not so unreasonable that no reasonable planning authority could have imposed it.
In Western Australian Planning Commission v Temwood Holdings Pty Ltd Callinan J also referred, with apparent approval, to the Newbury tests as follows [155]:
… that a condition must be for a planning purpose and not for any ulterior purpose, must fairly and reasonably relate to the proposed development, and, thirdly must not be so unreasonable that no reasonable planning authority could have imposed it[.]
In Reid v Western Australian Planning Commission [2016] WASCA 181, the Court of Appeal (Martin CJ, Newnes and Murphy JJA agreeing) endorsed the Newbury tests. After setting out the passage from McHugh J's judgment in WesternAustralian Planning Commission v Temwood Holdings Pty Ltd quoted at [37] above, the Chief Justice observed and held as follows [29]:
It is clear from the terminology used by McHugh J and from his reasons read as a whole that he considered the three conditions of validity to which he referred to be quite separate and distinct so, even if the condition is imposed in the furtherance of a proper planning purpose, it will not be valid unless it reasonably and fairly relates to the development proposed. …
Mr Prosser concedes that the condition in dispute has a planning purpose. I agree. The condition is clearly for the planning purpose of facilitating safe and convenient pedestrian movement. It is also not in serious dispute that the condition is not manifestly unreasonable in the sense that no reasonable planning authority could have imposed it.
The question in dispute, in relation to the Newbury tests, is whether there is a sufficient nexus with the proposed development, or in terms of the expression of the test in the authorities referred to earlier, whether the condition fairly and reasonably relates to the proposed development.
Mr Young gave evidence that, in his opinion, condition 25 is based upon the principle of 'need and nexus' in that implementation of the development will result in an intensification and change in use of the site from a workshop and vacant land to a showroom. He emphasises in his evidence that there will be a 157% increase in the gross floor area of the proposed building in comparison to the existing Beaurepaires building. He expresses the opinion that the proposed development is considered to represent:
… an intensification of the site given [that] the use class will change from 'motor vehicle repair', in which the majority of the customers travels [sic] by car, to a 'showroom', in which there is both a greater potential for additional employee and customer numbers, and a greater opportunity for pedestrian[-]based retail transactions.
He expresses the opinion that the proposed intensification of the use of the site gives rise to the need for the augmentation, including widening, of the footpath.
Mr Daly also gave evidence of his opinion that:
… the existing footpath is inadequate to service the needs of the path users for the development.
He expresses the opinion that the proposed development:
…will likely increase pedestrian activity in the area and more so on Spencer Street which is the primary road frontage.
The only justification, or reasoning, expressed by Mr Daly for this opinion is that:
… the site operates as a single tyre fitting retailer on part of the site, which typically attracts predominantly vehicle trips to and from the site[,]
whereas in the case of the proposed two showrooms over the whole of the site:
… it is anticipated that pedestrian trips will increase and the upgrade of the existing footpath from 1.5m to 2m will provide an adequate level of service for users.
In contrast, Mr Ross Underwood, a consultant town planner called by Mr Prosser, gave evidence that in his opinion the proposed development will not result in any increase in pedestrian use of the relevant section of the Spencer Street footpath. Mr Underwood considers that:
A showroom use desires (if not necessitates) access by vehicle for customers' collection of bulky goods.
He considers that the customers are:
… unlikely to park their car at the showroom site and walk to another destination elsewhere, nor are they likely to walk to the showroom premises from elsewhere as the goods sold in the showroom are typically bulky and which cannot be easily taken away by foot.
He acknowledges that the proposed showroom is larger in floor area than the existing Beaurepaires premises, but considers that:
… much of a showroom's floor is taken up with display and backofhouse storage and a showroom is unlikely to attract as high a density per square metre of staff or customers as a tyre retailer and fitter.
Significantly, Mr Underwood considers that:
… pedestrians are no more likely to walk to and from the proposed 2,108m² showroom development than they are to walk to and from Beaurepaires.
In support of that opinion, Mr Underwood refers to the nature of the existing use on the site as involving a business in which customers:
… need to leave their cars at the site for a period of a time while tyres are repaired or fitted or the wheels balanced and aligned …
While a customer will, of necessity, arrive and leave the site currently by car, while their car is being worked on they may:
… choose to walk to another destination nearby instead of waiting onsite.
As a factual observation, Mr Underwood gave evidence, which was not questioned or contradicted, and which I accept, that this is something that he has done on several occasions while waiting at a tyre retailer. Furthermore, referring particularly to the proximity of the site to nearby supermarkets, a library, shopping centre, and cafes, as well as the proximity to the CBD generally, Mr Underwood expressed the opinion that customers in the current development on the site are more likely to walk to and from the site while their car or tyres are being worked on than would customers visiting the proposed showroom development. Finally, on this aspect of his evidence, Mr Underwood referred to the website of the Bunbury Beaurepaires which indicates to potential customers that it is:
… ideally located on the corner of Spencer Street and Cornwall Street, with a shopping centre, cafes and public transport close by. (Emphasis added)
Neither party presented any empirical evidence of current pedestrian generation of the existing development on the site, or of likely pedestrian generation of the showroom development on the site. Such evidence could have been obtained by undertaking a count of current pedestrians and reviewing or assessing similar developments of showrooms. Mr Daly conceded in cross-examination that the Council has not undertaken any pedestrian counts of current pedestrians using the site or produced any estimate of the number of pedestrians likely to be generated by the proposed development.
Mr Young made the same concessions. He expressed the opinion, however, in his oral evidence that the nature of the uses contemplated by the proposed development which fall within the definition of the use class 'Bulky Goods Showroom' under LPS 8 is such that, in his words, 'all manner of business types', not just bulky items sales, are likely to occur on the site. The definition of 'Bulky Goods Showroom' under cl 49 of LPS 8 states as follows[1]:
[1] Although the parties' evidence and submissions proceeded on the basis that the definition of 'bulky goods showroom' in LPS 8 governs the 'showroom' uses contemplated in the proposed development, in fact, the development application was approved by the City on 6 March 2018, three days before LPS 8 was gazetted and repealed and replaced TPS 7. However, as was common ground, there is no material difference between the definitions of 'showroom' under TPS 7 and 'bulky goods showroom' under LPS 8.
Bulky goods showroom means premises
(a)used to sell by retail any of the goods and accessories of the following types that are principally used for domestic purposes
(i)automotive parts and accessories;
(ii)camping, outdoor and recreation goods;
(iii)electric light fittings;
(iv)animal supplies including equestrian and pet goods;
(v)floor and window coverings;
(vi)furniture, bedding, furnishings, fabrics, manchester and homewares;
(vii)household appliances, electrical goods and home entertainment goods;
(viii)party supplies;
(ix)office equipment and supplies;
(x)babies’ and childrens’ goods, including play equipment and accessories;
(xi)sporting, cycling, leisure, fitness goods and accessories;
(xii)swimming pools;
and
(b)used to sell by wholesale or retail, or hire, goods and accessories if
(i)a large area is required for the handling, display or storage of the goods of a bulky nature; and
(ii)vehicular access is required to the premises for the purpose of collection of purchased goods.
Mr Young gave, as examples of potential uses contemplated under the proposed development on the site, an Officeworks outlet which, he said, could sell a single pen, or a Harvey Norman outlet which, he said, could sell a single lamp.
Certainly, a pedestrian could walk to the site and buy a pen or a lamp. However, as Mr Underwood said, the types of goods in paragraph (a) of the definition 'Bulky Goods Showroom' in LPS 8 are generally of a bulky nature. Furthermore, even if particular goods are not of a bulky nature, the types of premises contemplated in the definition are ones where customers are likely to attend by car.
The City also submits, on the basis of Mr Young's evidence and Mr Daly's evidence, and having regard to the definition of 'bulky goods showroom', that the uses as proposed on the site in the development application could sell a broad range of goods, including food, and that there is likely to be, in Council's submission 'a significant number of pedestrians attracted to the development'.
As I have said, no empirical evidence was presented to the Tribunal. In my view, the evidence does not support a submission that the development would attract a 'significant number of pedestrians' as opposed to a significant number of customers. The nature of a 'bulky goods showroom' in terms of the definition of this use class in LPS 8 is such, as I have said, that the type of goods sold are likely to be generally of a bulky nature and, even if particular goods are not of a bulky nature, the customers are likely to come and leave by car.
Furthermore, whereas, in relation to the current use of the site, there is, as Mr Underwood said, a significant potential for customers to leave their cars to be worked on and walk to nearby attractions, including retail, commercial, and services, that potential does not exist, or at least does not exist to the same extent, with the proposed development. People are unlikely to go to the development, buy something, and then leave their cars there while they walk into the CBD.
On the evidence presented to the Tribunal, I am not satisfied that the proposed development would in fact involve any greater use of the footpath by pedestrians generated by the development on the site than the current use of the site, and indeed may well involve less pedestrian use of the footpath adjacent to the site than the current use of the site. I therefore find that there is, as a matter of fact, on the evidence before the Tribunal, a lack of sufficient nexus between the proposed development and the condition in dispute.
The Council also submits that the condition of the footpath is such that it is due to be 'renewed', in light of Mr Daly's assessment referred to earlier, and it is an appropriate time when a development of a new and substantial showroom complex is proposed for the development conditions of consent to require the upgrading of the footpath.
However, the assumption in that submission is not only that the condition of the footpath is such that it requires replacement, but also that the proposed development involves an increase, and indeed a significant increase, in the number of customers who would not only be attracted to the site, but would walk to or from the site over the section of footpath on Spencer Street. I do not consider that the evidence establishes either of those assumptions.
Firstly, as I have said, the Council's own evidence does not establish that the footpath needs to be replaced, although there are certain defects in relation to it. Furthermore, the evidence before the Tribunal does not establish that there is likely to be an increase, much less a significant increase, in the number of pedestrians generated by the use on the site utilising the section of footpath adjacent to the site on Spencer Street.
As Mr Prosser submits, the condition of the footpath is a current issue for the Council, the Council having the care, control and management of the footpath. If it considers that the footpath should be 'renewed' as part of its maintenance program, then that is a matter for the Council.
However, in terms of whether there is a sufficient nexus, that is to say whether the condition in dispute fairly and reasonable relates to the proposed development, I am not satisfied that it does. And, indeed, I am satisfied that it does not.

Is condition 25 reasonable and appropriate?

For these reasons, in my view, the condition in dispute cannot validly be imposed. However, if I am wrong, and there is a nexus, I am certainly satisfied on the evidence that it would be inappropriate and unreasonable to impose the condition.
The Council submits that the 50% contribution is reasonable in all the circumstances and reflects a recognition by the Council that to some extent there is a public purpose served by upgrading the footpath for which the developer is not responsible.
However, I am not satisfied that the proposed development gives rise to any increase in the number of pedestrians using the footpath and in those circumstances it is not appropriate or reasonable to require that the developer make any contribution for the footpath upgrade as sought in condition 25.
I should also say, finally, that Mr Young referred in his evidence, including his written evidence, to the objective of the zone that I have set out earlier, '[t]o facilitate the development of walkable and vibrant places' in the Mixed Use - Commercial zone. However, that objective is an objective of the zone. It is not something that this proposed development gives rise to. Certainly other developments may, if the evidence establishes it, give rise to an increase in the number of customers walking to the premises, because of their vibrancy or otherwise. In relation to such developments, a developer contribution may perhaps be imposed. However, in this case, I consider that the condition should be deleted.

Conclusion and orders

As I have said, the condition does not have a sufficient nexus with the proposed development, and, in any case, it is not reasonable or appropriate in the circumstances of this case to impose the condition.
For these reasons, the orders of the Tribunal are:
1.The application for review is allowed.
2.Condition 25 imposed by the respondent on 6 March 2018 on the grant of development approval for the construction of showrooms at No 27 (Lots 1 and 2) Spencer Street and No 4 (Lot 23) Zoe Street, Bunbury, is set aside.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
ASSOCIATE
7 JUNE 2018