Puma Energy Australia and City Of Cockburn
[2016] WASAT 36
•13 APRIL 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PUMA ENERGY AUSTRALIA and CITY OF COCKBURN [2016] WASAT 36
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MR P DE VILLIERS (MEMBER)
HEARD: 16, 17 AND 18 FEBRUARY 2016
DELIVERED : 13 APRIL 2016
FILE NO/S: DR 71 of 2015
BETWEEN: PUMA ENERGY AUSTRALIA
Applicant
AND
CITY OF COCKBURN
Respondent
Catchwords:
Town planning Development application Retail sale of petrol and convenience goods Access to site via easement over adjoining property Whether development application is incapable of approval in absence of owner's consent given by owners of adjoining property Land use classification Whether use correctly classified as 'convenience store' or 'petrol filling station' under local planning scheme Traffic safety and convenience Amenity Noise Gas and odour Risk Whether proposed development is acceptable for purposes of development approval in relation to gas, odour and risk in absence of sound sitespecific technical analyses / scientific studies based on sitespecific and industryspecific information Whether works associated with a use that is permitted by a local planning scheme (a 'P' use) can be refused consent under the scheme in the exercise of planning discretion Whether deemed provision in local planning scheme setting out matters for consideration in determining a development application inconsistent with provision in text of local planning scheme setting out matters for consideration in determining a development application Whether deemed provision has 'appearance of exhaustiveness' on subject of matters for consideration Words and phrases: 'convenience goods', 'convenience store', 'inconsistency', 'inconsistent', 'petrol filling station'
Legislation:
City of Cockburn Town Planning Scheme No 3, cl 1.6.1, cl 1.7.1, cl 1.7.1(b)(i), cl 4.2.1, cl 4.2.1(d), cl 4.3, cl 4.3.3, cl 5.6, cl 5.9, cl 5.9.3(d)(i), cl 5.9.4, cl 9.1.1, cl 10.2, cl 10.2.1(za), Sch 1
Dangerous Goods Safety (Storage and Handling of Nonexplosives) Regulations 2007 (WA)
Dangerous Goods Safety Act 2004 (WA), s 3(1), s 11(2)
Environmental Planning and Assessment Act 1979 (NSW), s 76(2), s 77(1)
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), reg 78, Sch 2 (deemed provisions), cl 1, cl 60, cl 61, cl 62(1)(b), cl 67, cl 67(zb)
Planning and Development Act 2005 (WA), s 241(1)(a), s 242, s 252(1), s 257B(2), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 9(b), s 9(c), s 24, s 27(1), s 27(2), s 31, s 31(3), s 32(2), s 32(4)
Town Planning Regulations 1967 (WA), App B (Model Scheme Text), cl 10.2
Result:
Application for review allowed
Decision of respondent to refuse development approval for development classified by respondent as 'petrol filling station' at No 224 Clontarf Road, Hamilton Hill is set aside and a decision is substituted that conditional development approval is granted for the proposed development correctly classified as 'convenience store' involving retail sale of petrol and convenience goods
Summary of Tribunal's decision:
Puma Energy Australia sought review of the decision of the City of Cockburn to refuse development approval for a development involving the retail sale of petrol and convenience goods on a site in Hamilton Hill. Puma contended that the proposed use is correctly classified as 'convenience store' (which is a 'P' use, that is a use that is permitted if it complies with relevant development standards and requirements) under the applicable local planning scheme, whereas the City contended that it is correctly classified as 'petrol filling station' (which is an 'A' use, that is a use that is not permitted unless the local government has exercised its discretion after giving special notice) under the local planning scheme.
The Tribunal observed that the definitions of the use classes 'convenience store' and 'petrol filling station' in the local planning scheme are poorly drafted and somewhat confusing, because they both refer to the retail sale of petrol or fuel and the retail sale of convenience goods or goods in a convenience store. The Tribunal determined that, on the evidence, the proposed use is correctly classified as 'convenience store' under the local planning scheme, because the proposed development involves 'the retail sale of petrol and ... convenience goods [commonly sold in supermarkets, delicatessens or newsagents]', within the meaning of this composite expression in the second limb of the definition of 'convenience store' in the scheme and the primary focus and emphasis of the proposed development is on both the retail sale of petrol and the retail sale of convenience goods. Furthermore, as the primary focus and emphasis of the proposed development is on the retail sale of petrol and convenience goods, rather than on the retailing of fuel and petroleum products, the proposed use is not correctly classified as 'petrol filling station' under the local planning scheme.
The Tribunal found that the proposed development complies with the relevant development standards and requirements of the local planning scheme. The Tribunal also found that the works associated with the use and proposed in the development application, including partial demolition and alterations to a building, construction of the fuel forecourt consisting of four fuel bowsers and canopy, and three underground fuel tanks, are appropriate and merit conditional development approval under the applicable planning framework. Further, having assessed all of the issues raised in the proceeding, including issues premised on the classification of the proposed use as 'petrol filling station', the Tribunal determined that, had the proposed use been correctly classified as 'petrol filling station', the proposed development would have been approved in the exercise of planning discretion under the local planning scheme, subject to the same conditions.
In reviewing the planning framework, the Tribunal also determined that cl 67 of the deemed provisions in local planning schemes, which sets out matters for consideration in the determination of a development application, is inconsistent with the text of local planning schemes based on cl 10.2 of the former Model Scheme Text, because both provisions seek to provide a comprehensive and exhaustive set of considerations which the local government (and the Tribunal on review) is required to have 'due regard' to, insofar as they are relevant, in considering an application for development approval. As cl 67 of the deemed provisions has an 'appearance of exhaustiveness' on the subject of matters for consideration in the determination of a development application, it is incompatible and hence inconsistent with provisions based on cl 10.2 of the former Model Scheme Text. In effect, therefore, cl 67 of the deemed provisions has replaced all provisions in local planning schemes in Western Australia based on cl 10.2 of the former Model Scheme Text.
In addressing a submission made by an adjoining land owner over whose land the development site has an easement conferring a right of carriageway, the Tribunal also determined that the development application is not incompetent or incapable of approval in the absence of owner's consent given by the owners of the adjoining property. In this regard, the Tribunal determined that the reasoning and decision of the High Court of Australia in North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; (1996) 185 CLR 470 applies in relation to planning law in Western Australia.
Category: B
Representation:
Counsel:
Applicant: Mr DH Solomon
Respondent: Mr A Roberts
Solicitors:
Applicant: Solomon Brothers
Respondent: McLeods
Case(s) referred to in decision(s):
Capelight Nominees Pty Ltd and City of Swan [2015] WASAT 85
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52
Foodbarn Pty Ltd v SolicitorGeneral (1975) 32 LGRA 157
Holland v Jones (1917) 23 CLR 149
Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44
North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; (1996) 185 CLR 470
Robertson and Shire of Murray [2009] WASAT 171; (2009) 67 SR (WA) 66
West Coast Enterprises Pty Ltd and Shire of Exmouth [2007] WASAT 316
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Puma Energy Australia (Puma) seeks review, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision of the City of Cockburn (City or Council) to refuse development approval for a development involving the retail sale of petrol and convenience goods at No 224 Clontarf Road, Hamilton Hill (site). Until 2013, for a period of over 40 years, the site comprised a KFC fast food restaurant.
The development application proposes:
•partial demolition of and alterations to the former KFC building to accommodate a loading zone outside the building and retail display area, cool room, store, toilet, office, staff amenities and 'console' for payment for petrol and goods, within the building;
•a fuel forecourt consisting of four fuel bowsers, each serving two refuelling bays, and a canopy above;
•three underground fuel tanks storing an approximate volume of 55,000 litres per tank;
•an air and water bay;
•ten car parking bays adjacent to the building and three car parking bays adjacent to the western side boundary of the site;
•signage for the development; and
•landscaping.
Although the site is located at the intersection of Clontarf Road and Carrington Street, and has frontages to both roads, it has no existing or proposed direct vehicular access to Carrington Street. The site has a single 9 metre wide crossover to Clontarf Road, which in the proposed development would be increased in width to 10 metres and would serve as the only direct vehicular accessway between the site and a public road.
The site also has the benefit of an easement conferring a 4 metre wide right of carriageway over the adjoining property to the north (Lot 41 on Deposited Plan 59319 (Lot 41)), enabling vehicular (and pedestrian) access between the site and Carrington Street. The site is burdened by a reciprocal easement conferring a 7.6 metre wide right of carriageway enabling vehicular (and pedestrian) access between Lot 41 and Clontarf Road over the site.
The development application, which was lodged with the City in November 2014, classified the proposed land use for the purposes of the applicable local planning scheme, the City of Cockburn Town Planning Scheme No 3 (TPS 3 or Scheme), as 'convenience store'. Under the Zoning Table of TPS 3, 'convenience store' is designated as a 'P' use in the Local Centre zone which applies to the site, meaning that 'the use is permitted by the Scheme providing the use complies with the relevant development standards and requirements of the Scheme' (cl 4.3.3, emphasis original). The City's town planning staff assessed the development application and, in a report to the Ordinary Council Meeting on 12 February 2015, recommended that it be granted conditional development approval, although on the basis that the proposed use is correctly classified as 'petrol filling station', rather than 'convenience store', under TPS 3. Under the Zoning Table of TPS 3, 'petrol filling station' is designated as an 'A' use in the Local Centre zone, meaning that 'the use is not permitted unless the local government has exercised its discretion and has granted planning approval after giving special notice in accordance with clause 9.4' (cl 4.3.3, emphasis original).
However, at its Ordinary Council Meeting on 12 February 2015, the Council refused the development application for the following two reasons:
1.The separation distance between the proposed petrol filling station and existing residential dwellings is considered insufficient and is likely to negatively impact on the amenity of nearby residents with regards to noise, odour and other emissions which is inconsistent with the aims of Town Planning Scheme No. 3 as outlined in Clause 1.6.1.
2.The proposal is in close proximity to an existing petrol filling station (within 200m) and therefore this proposal is considered unnecessary.
During the course of the review proceeding, Puma sought, and was granted leave by the Tribunal, to amend the development application in a number of respects, including:
•reducing the hours of operation of the proposed development from 24 hours, seven days a week, to between 6 am and 10 pm, seven days a week;
•incorporating Stage 2 vapour recovery system (in addition to Stage 1 vapour recovery system) (explained and discussed in relation to issue 8 later in these reasons); and
•agreeing not to supply, store or sell liquefied petroleum gas (LPG) for refuelling purposes at the site.
In addition, whereas Puma had previously proposed that all servicing vehicles, including petrol tankers and refuse trucks, would access the site via the right of carriageway over Lot 41, rather than from Clontarf Road, Puma put forward an alternative option for servicing the site under which all petrol tankers, refuse trucks and all other medium rigid and larger vehicles servicing the site would enter and exit the site from Clontarf Road, rather than via the right of carriageway over Lot 41. The servicing option via the right of carriageway over Lot 41 was subsequently referred to as 'option 1' and the alternative servicing option via the Clontarf Road crossover was subsequently referred to as 'option 2'.
Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal invited the Council to reconsider its decision, having regard to the amendments and alternative servicing option put forward by Puma. At its Ordinary Council Meeting on 10 September 2015, the Council, again classifying the proposed use as 'petrol filling station', affirmed its earlier refusal of the development application for the following single reason:
The proposed petrol filling station does not comply with Clauses 10.2.1(i), (j) and (n) of Town Planning Scheme No. 3, as the proposal is considered inappropriate and incompatible with the context of a residential setting and is likely to negatively impact on the amenity of nearby residents.
Under s 31(3) of the SAT Act, the Council's decision to refuse the amended development application on 10 September 2015 is the decision which is the subject of the review. However, under s 27(1) of the SAT Act, the review 'may involve the consideration of new material whether or not it existed at the time the decision [under review] was made' and, under s 27(2) of the SAT Act, the purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'.
At the hearing of the review, the parties debated the correct classification of the proposed use under TPS 3. Puma contends that the proposed use is correctly classified as 'convenience store', whereas the City contends that the proposed use is correctly classified as 'petrol filling station', under the Scheme. As the defined meanings of both of these use classes in the Scheme refer to the retail sale of petrol or fuel and the retail sale of convenience goods or goods in a convenience store, the definitions are poorly drafted and somewhat confusing.
For reasons set out below, we consider that the proposed use is correctly classified as 'convenience store', and not as 'petrol filling station', under TPS 3, and we have determined that the correct and preferable decision in this review is to grant conditional development approval for the proposed development. However, given the poor and confusing drafting of the competing definitions and given that the parties presented evidence and submissions addressing the application on both possible land use classifications, we have also addressed the development application on the basis that the proposed use is correctly classified as 'petrol filling station' under TPS 3. For reasons given below, if the proposed use were correctly classified as 'petrol filling station', we consider that the correct and preferable decision on the review would be the same, namely to grant development approval for the proposed development subject to the same conditions.
We will now describe the site and locality, and the planning framework. We will then set out the issues for determination and address each issue in turn.
Site and locality
The site is located approximately 22 kilometres southwest of the Perth Central Business District and approximately 5 kilometres southeast of the Fremantle town centre. The site forms part of the Hamilton Hill Neighbourhood Centre.
The Hamilton Hill Neighbourhood Centre is described in the City of Cockburn Local Commercial and Activities Centres Strategy (Centres Strategy) as 'a large neighbourhood centre located on the corner of Winterfold Road and Carrington Street in Hamilton Hill', and is identified in the Centres Strategy as one of eight Neighbourhood Centres within the district of the City. The Centres Strategy shows the Hamilton Hill Neighbourhood Centre as comprising the site, Lot 41 to its north, and two narrow properties to the north of Lot 41, on the western side of Carrington Street, the whole of the street block to the east of the site across Carrington Street bounded by Carrington Street to the west, Winterfold Road to the north, Simms Road to the east and Dodd Street to the south, together with the properties to the east of that street block across Simms Road and to the south of that street block across Dodd Street.
The site is located to the northwest of the Tintersection of Clontarf Road (which runs eastwest, terminating at its eastern end at Carrington Street) and Carrington Street (which runs northsouth). The site has a frontage of 37.48 metres to Clontarf Road, a truncation of 8.53 metres to the intersection, a frontage of 40.54 metres to Carrington Street, a northern boundary of 43.09 metres to Lot 41, a western boundary of 46.57 metres to the adjoining residential property at No 222 Clontarf Road, and an area of 1,998m².
Clontarf Road is classified as a 'Local Distributor Road' under Main Roads WA's Function Road Hierarchy. As at August 2011, Clontarf Road (west of Carrington Street) carried 5,639 vehicles per day. Clontarf Road comprises a single lane in each direction, widening into two lanes in the location of the site to provide separate left and right turning lanes at the Tintersection with Carrington Street. Carrington Street is classified as a 'District Distributor A Road' under Main Roads WA's Functional Road Hierarchy. As at May 2015, Carrington Street (north of Clontarf Road) carried approximately 20,000 vehicles per day. Adjacent to the site, Carrington Street comprises two lanes in each direction with a median strip division.
Lot 41, which adjoins the site to the north, comprises three commercial units used as a tattoo studio and two restaurants. Adjoining the site to the west there is a single storey residential dwelling at No 222 Clontarf Road and adjacent to the site to the northwest there is a grouped dwelling development. To the south of the site, across Clontarf Road, there is a three storey multiple dwelling development. To the west of that property, on the southern side of Clontarf Road, and to the west of the single dwelling at No 222 Clontarf Road, on the northern side of Clontarf Road, there are further single residential dwellings. To the east of the site, across Carrington Street, there are a number of commercial developments, including a fast food restaurant with drivethrough facility, a liquor store and a drivethrough bottle shop, a tavern, a TAB, professional offices, the Hamilton Hill Shopping Centre, which includes a supermarket and various retail tenancies, and the United Petroleum petrol outlet on Winterfold Road, between Carrington Street and Simms Road, which is approximately 150 metres from the site.
Planning framework
The site is zoned Urban under the Metropolitan Region Scheme. Section 241(1)(a) of the PD Act requires the Tribunal to have 'due regard' to 'any State planning policy which may affect the subject matter of the application'. State Planning Policy No 4.1 State Industrial Buffer Policy (SPP 4.1) aims to 'provide a consistent Statewide approach for the definition and securing of buffer areas around industry' and to 'provide for the safety and amenity of land uses surrounding industry' (cl 1(1) and cl 1(3)). Clause 4 of SPP 4.1 refers to the definition of offsite buffer areas. Generic separation buffers between industrial and sensitive land uses are set out in the Environmental Protection Authority Guidance for the Assessment of Environmental Factors Separation Distances between Industrial and Sensitive Land Uses (No 3, June 2005) (EPA Guidance), provisions of which are referred to and discussed under issue 8 below.
As noted earlier, the site is zoned Local Centre under TPS 3. The adjoining property to the north (Lot 41) and the property to its north, as well as properties on the opposite, eastern side of Carrington Street, are also zoned Local Centre. The properties adjoining and adjacent to the site to the west (on the northern side of Clontarf Road) and to the northwest are zoned Residential with a density coding of R60 under TPS 3. The land on the opposite, southern side of Clontarf Road from the site is also zoned Residential with the multiple dwelling development directly across the road from the site coded R80 and the properties to its west (on the southern side of Clontarf Road) coded R20, under TPS 3.
Clause 1.6.1 of the TPS 3 states that the aims of the Scheme are to:
(a)ensure that development and the use of land within the district complies with accepted standards and practices for public amenity and convenience;
(b)ensure that the future development and use of land within the district occurs in an orderly and proper way so that the quality of life enjoyed by its inhabitants is not jeopardised by poor planning, unacceptable development and the incompatible use of land.
(Emphasis original)
Clause 4.2.1 of the Scheme sets out the objectives of the zones. The objective of the Local Centre zones is as follows:
To provide for convenience retailing, local offices, health, welfare and community facilities which serve the local community, consistent with the localserving role of the centre. (Emphasis original)
Clause 4.3 of TPS 3 states, in part, as follows:
4.3.1The Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme Area in the various zones.
4.3.2The permissibility of any uses is determined by cross reference between the list of use classes on the left hand side of the Zoning Table and the list of zones at the top of the Zoning Table.
4.3.3The symbols used in the cross reference in the Zoning Table have the following meanings -
'P'means that the use is permitted by the Scheme providing the use complies with the relevant development standards and requirements of the Scheme.
…
'A'means that the use is not permitted unless the local government has exercised its discretion and has granted planning approval after giving special notice in accordance with clause 9.4.
…
(Emphasis original)
As noted earlier, the Zoning Table indicates that the use class 'convenience store' is a 'P' use and that the use class 'petrol filling station' is an 'A' use in the Local Centre zone. Under cl 1.7.1(b)(i) and Sch 1 of TPS 3, the land uses 'convenience store' and 'petrol filling station' are defined as follows:
convenience store: means premises
(a) used for the retail sale of convenience goods commonly sold in supermarkets, delicatessens or newsagents, or the retail sale of petrol and those convenience goods;
(b) operated during hours which include, but may extend beyond, normal trading hours;
(c) which provide associated parking; and
(d) the floor area of which does not exceed 300 square metres net lettable area.
petrol filling station: means land and buildings used for the retailing of fuel and petroleum products and may include a convenience store with a floor area not exceeding 300 square metres, but does not include a workshop for mechanical repairs or the servicing of vehicles or machinery.
'[R]elevant development standards and requirements' which a 'P' use must comply with in order to be 'permitted by the Scheme' under cl 4.3.3 of TPS 3 are set out in cl 5.9 of TPS 3 in relation to commercial and industrial uses. These development standards and requirements concern building setbacks, landscaping, amenity in terms of building location and design and advertising signs, convenience and functionality, and parking.
The town planning expert witnesses, Mr Marc Re, called by Puma, and Ms Amanda Butterworth, called by the City, agree and it is common ground between the parties that, other than in relation to one matter which is in dispute, the proposed development (as agreed to be conditioned if approved) complies with all relevant development standards and requirements in cl 5.9 of the Scheme (or that it is appropriate to exercise discretion available under cl 5.6 of TPS 3 in relation to the development standard or requirement concerning amenity in terms of advertising signs). The town planning expert witnesses and the parties disagree as to whether the proposed development complies with the development standard or requirement concerning convenience and functionality stated in cl 5.9.4 of TPS 3. Ms Butterworth considers that the proposed development does not satisfy the development standard or requirement in relation to convenience and functionality, whereas Mr Re considers that it does. We will set out the terms of cl 5.9.4 of TPS 3 when we address whether the proposed development complies with relevant development standards and requirements of the Scheme under issue 3 later in these reasons.
Section 257B(2) and s 257B(3) of the PD Act state as follows:
(2)Deemed provisions, as amended from time to time, have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force.
(3)If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.
Regulation 10(4) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) states as follows:
The provisions in Schedule 2 are deemed provisions, being provisions to which section 257B of the Act applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text[.]
Furthermore, reg 8(1)(c) of the LPS Regulations expressly states that:
The documents that comprise a local planning scheme are the following
…
(c)if any of the provisions set out in Schedule 2 have not been incorporated into the local planning scheme text those provisions[.]
In consequence of s 257B(2) of the PD Act and reg 8(1)(c) and reg 10(4) of the LPS Regulations, the deemed provisions in Sch 2 of the LPS Regulations have effect as part of TPS 3. Furthermore, in consequence of s 257B(3) of the PD Act, if a deemed provision that has effect as part of TPS 3 is inconsistent with another provision of TPS 3, 'the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.'
Clause 60 of the deemed provisions states as follows:
A person must not commence or carry out any works on, or use, land in the Scheme area unless
(a)the person has obtained the development approval of the local government under Part 8; or
(b)the development is of a type referred to in clause 61.
The term 'works' is defined in cl 1 of the deemed provisions as follows:
works, in relation to land, means
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land; and
(b)the carrying out on the land of any excavation or other works; and
(c)in the case of a place to which a Conservation Order made under the Heritage of Western Australia Act 1990 section 59 applies, any act or thing that
(i)is likely to damage the character of that place or the external appearance of any building; or
(ii)would constitute an irreversible alteration to the fabric of any building[.]
The expression 'other works' in paragraph (b) of the definition of 'works' in cl 1 of the deemed provisions has a wellestablished meaning in planning law. As discussed by the Tribunal in Robertson and Shire of Murray [2009] WASAT 171; (2009) 67 SR (WA) 66 at [43] [55], 'works' involve physical alteration to land which, assessed as a matter of fact and degree, has a sufficient quality of significance and permanence, in the circumstances of the particular case.
The proposed development is not of a type referred to in cl 61 of the deemed provisions. In particular, although cl 61(1) of the deemed provisions states that '[d]evelopment approval of the local government is not required' for specified 'works', including, under paragraph (j), 'the carrying out of works of a type identified elsewhere in this Scheme as works that do not require development approval', TPS 3 does not identify the works proposed in the development application as works that do not require development approval. Furthermore, although cl 61(2) of the deemed provisions states that '[d]evelopment approval of the local government is not required' for specified 'uses', including, under paragraph (b), 'development that is a use identified in this Scheme as a use that is permitted in the zone in which the development is located and … the development has no works component; or … development approval is not required for the works component of the development', the proposed development has a 'works component' and development approval is required for that works component under TPS 3.
As Mr A Roberts, counsel for the City, submits, even if the proposed use is correctly classified as 'convenience store' under TPS 3, and is, therefore, a use that is 'permitted by the Scheme providing the use complies with the relevant development standards and requirements of the Scheme' (cl 4.3.3 of TPS 3, emphasis original), the works which are associated with that use and proposed in the development application, relevantly 'any demolition, erection, construction, alteration of or addition to any building or structure on the land' and 'the carrying out on the land of any excavation or other works', would nevertheless require the development approval of the City (or the Tribunal on review) under cl 60 of the deemed provisions. Consequently, even if the proposed use is 'permitted by the Scheme', the works which are associated with the permitted use and proposed in the development application may be refused consent in the exercise of planning discretion under TPS 3 (although, in exercising its discretion in relation to the works, the consent authority will consider and give appropriate weight to the fact that the associated use is permitted). The works proposed in the development application in this case include partial demolition of and alterations to the former KFC building, construction of the fuel forecourt comprising the fuel bowsers and canopy, and the underground fuel tanks.
Clause 67 of the deemed provisions states as follows:
In considering an application for development approval the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application
(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;
(d)any environmental protection policy approved under the Environmental Protection Act 1986 section 31(d);
(e)any policy of the Commission;
(f)any policy of the State;
(g)any local planning policy for the Scheme area;
(h)any structure plan, activity centre plan or local development plan that relates to the development;
(i)any report of the review of the local planning scheme that has been published under the Planning and Development (Local Planning Schemes) Regulations 2015;
(j)in the case of land reserved under this Scheme, the objectives for the reserve and the additional and permitted uses identified in this Scheme for the reserve;
(k)the built heritage conservation of any place that is of cultural significance;
(l)the effect of the proposal on the cultural heritage significance of the area in which the development is located;
(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;
(o)the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;
(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;
(q)the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bush fire, soil erosion, land degradation or any other risk;
(r)the suitability of the land for the development taking into account the possible risk to human health or safety;
(s)the adequacy of
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
(u)the availability and adequacy for the development of the following
(i)public transport services;
(ii)public utility services;
(iii)storage, management and collection of waste;
(iv)access for pedestrians and cyclists (including end of trip storage, toilet and shower facilities);
(v)access by older people and people with disability;
(v)the potential loss of any community service or benefit resulting from the development other than potential loss that may result from economic competition between new and existing businesses;
(w)the history of the site where the development is to be located;
(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;
(za)the comments or submissions received from any authority consulted under clause 66;
(zb)any other planning consideration the local government considers appropriate.
Similarly to cl 67 of the deemed provisions, cl 10.2 of TPS 3 states as follows:
10.2.1The local government in considering an application for planning approval shall have due regard to such of the following matters as are in the opinion of the local government relevant to the use or development subject of the application
(a)the aims and provisions of this Scheme and any other relevant town planning scheme(s) operating within the Scheme Area, including the Metropolitan Region Scheme;
(b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
(c)any approved Statement of Planning Policy of the Commission;
(d)any approved Environmental Protection Policy under the Environmental Protection Act 1986;
(e)any relevant policy or strategy of the Commission or any relevant planning policy adopted by the Government of the State;
(f)any local planning policy adopted by the local government under clause 2.5, any heritage policy statement for any designated Heritage Area adopted under clause 7.2.2 and any other plan or guideline adopted by the local government under the Scheme;
(g)in the case of land reserved under the Scheme, the ultimate purpose intended for the reserve;
(h)the conservation of any place that has been entered in the Register within the meaning of the Heritage of Western Australia Act 1990, or which is included in the Heritage List under Clause 7.1, and the effect of the proposal on the character or appearance of a heritage area;
(i)the compatibility of a use or development within its setting;
(j)any social issues that have an effect on the amenity of the locality;
(k)the cultural significance of any place or area affected by the development;
(l)the likely effect of the proposal on the natural environment and any means that are proposed to protect or to mitigate impacts on the natural environment;
(m)whether the land to which that application relates is unsuitable for the proposal by reason of it being, or likely to be, subject to flooding, tidal inundation, subsidence, landslip, bush fire or any other risk;
(n)the preservation of the amenity of the locality;
(o)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
(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 traffic flow and safety;
(r)whether public transport services are necessary and, if so, whether they are available and adequate for the proposal;
(s)whether public utility services are available and adequate for the proposal;
(t)whether adequate provision has been made for access for pedestrians and cyclists (including end of trip storage, toilet and shower facilities);
(u)whether adequate provision has been made for access by disabled persons;
(v)whether adequate provision has been made for the landscaping of the land to which the planning application relates and whether any trees or other vegetation on the land should be preserved;
(w) whether the proposal is likely to cause soil erosion or land degradation;
(x)the potential loss of any community service or benefit resulting from the planning approval;
(y)any relevant submissions received on the application;
(z)the comments or submissions received from any authority consulted under clause 10.1.1; and
(za)any other consideration the Local government considers relevant.
(Emphasis original)
Clause 10.2 of TPS 3 follows the wording of cl 10.2 of the former Model Scheme Text in Appendix B of the Town Planning Regulations 1967 (WA) (TP Regulations) (Model Scheme Text). The TP Regulations were repealed by reg 78 of the LPS Regulations.
As noted earlier, s 257B(3) of the PD Act states that if a deemed provision 'is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.' Mr Roberts submits, and we agree, that cl 67 of the deemed provisions is inconsistent with cl 10.2 of TPS 3 and therefore prevails.
The words 'inconsistent' and 'inconsistency' in s 257B(3) of the PD Act bear their ordinary meanings. The adjective 'inconsistent' is defined in The Macquarie Dictionary (6th edition, 2013) at page 751 as follows:
1. lacking in harmony between the different parts or elements; selfcontradictory. 2. lacking agreement, as one thing with another, or two or more things in relation to each other; at variance. 3. not consistent in principles, conduct, etc. 4. acting at variance with professed principles. 5. Logic incompatible.
The noun 'inconsistency' is defined in The Macquarie Dictionary at page 751 as follows:
1. the quality of being inconsistent. 2. something inconsistent.
In Castle Constructions Pty Ltd v North Sydney Council[2007] NSWCA 164; (2007) 155 LGERA 52 (Castle Constructions), an appeal before the New South Wales Court of Appeal turned on whether one provision of a local planning scheme (cl 30 of the North Sydney Local Environmental Plan 2001 (NSLEP), which provided for a building height plane (BHP) control with respect to the erection of buildings) was inconsistent with another provision of the same local planning scheme (cl 28D of NSLEP, which related to building heights and massing within the North Sydney Centre in which the site was located). If cl 30 of the NSLEP was inconsistent with cl 28D of the NSLEP, then, under cl 28A of the NSLEP, cl 28D 'prevail[ed] over [cl 30], to the extent of any inconsistency …'. Tobias JA (with whom Bell J agreed at [145]) delivered the judgment of the majority, holding that cl 28D was inconsistent with cl 30 of the NSLEP and therefore that cl 28D prevailed over cl 30.
At [41] Tobias JA said the following:
It was ultimately common ground that the term 'inconsistency' in cl 28A was to be construed in the manner adopted by Kirby P in Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324 at 331 where he observed that the term 'inconsistency' in s 36 of the [Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)] was to be construed having regard to the ordinary meaning of that word. His Honour therefore rejected an argument that the term ought to be approached in a manner similar to that adopted when considering the operation of s 109 of the Constitution. He considered that s 36 concerned, to the extent of any inconsistency, which of at least two laws enacted by or made under the same legislature was to prevail. The resolution of that dispute required only that the word 'inconsistency' be give its ordinary natural meaning without the gloss which had necessarily developed around the meaning of the word in a constitutional setting. The President continued in those terms:
Upon that basis, there will be an inconsistency if, in the provisions of one environmental planning instrument, there is 'want of consistency or congruity'; 'lack of accordance or harmony' or 'incompatibility, contrariety, or opposition' with another environmental planning instrument.
At [55(h)], his Honour held as follows:
The question in the present case is whether one provision in an instrument made by the Minister as delegated legislation prevails over a different provision in the same instrument. Were it not for the eschewing by Kirby P in Coffs Harbour of the approach based on s 109 of the Constitution to the operation of s 36 of the EPA Act, it would be tempting to adopt the 'covering the field' test as the appellant in its written submissions pressed upon the Court, notwithstanding that it appears to have fallen out of favour in some contexts not presently relevant: cf Sweedman v Transport Accident Commission(2006) 224 ALR 625 at 636 [48]; [2006] HCA 8 at [48]. Close attention to the particular and complex provisions of cl 28D indicate an appearance of exhaustiveness on the subject of building heights within the Centre thereby creating an incompatibility and inconsistency between it and cl 30. I do not think that one is departing from the ordinary natural meaning of 'inconsistency' which, as Kirby P points out in Coffs Harbour, involves incongruity as well as incompatibility, by concluding that that incompatibility or incongruity or lack of harmony between the substance of the two provisions results not only from a comparison of the objectives and controls of each but also from the 'appearance of exhaustiveness' on the same subject matter of cl 28D with respect to development within the Centre with the consequence, as mandated by cl 28A, that cl 28D prevails to the extent of the inconsistency over cl 30.
Clause 67 of the deemed provisions is inconsistent with cl 10.2 of TPS 3 (and with all other provisions of local planning schemes based on cl 10.2 of the former Model Scheme Text), because both cl 67 of the deemed provisions and cl 10.2 of TPS 3 clearly seek to provide a comprehensive and exhaustive set of considerations which the local government (and the Tribunal on review) is required to have 'due regard' to, insofar as they are relevant, in considering an application for development approval. This is apparent, in the case of each of these provisions, from the large number of matters for consideration (in 27 paragraphs in each provision), the breadth of planning considerations stated in each provision, and the final 'catchall' provision in each, namely 'any other planning consideration the local government considers appropriate' (cl 67(zb) of the deemed provisions) and 'any other consideration the Local government considers relevant' (cl 10.2.1(za) of TPS 3, emphasis original). The range of planning considerations in each of the provisions is also strikingly similar, although there are some differences between the provisions.
As cl 67 of the deemed provisions seeks to provide a comprehensive and exhaustive set of considerations for the determination of a development application under TPS 3 and therefore to perform precisely the same function as cl 10.2 of TPS 3 (and all other provisions in local planning schemes based on cl 10.2 of the Model Scheme Text), cl 67 of the deemed provisions is inconsistent with cl 10.2 of TPS 3 (and all equivalent provisions in other local planning schemes). Applying the ordinary, natural meaning of 'inconsistency', there is incompatibility, incongruity and lack of harmony between the substance of cl 67 of the deemed provisions and the substance of cl 10.2 of the TPS 3, resulting from the 'appearance of exhaustiveness' of cl 67 of the deemed provisions on the subject of the matters for consideration in the determination of development applications under TPS 3. To adopt and adapt the language of Tobias JA in Castle Constructions at [55(h)]:
… Close attention to the particular and complex provisions of [cl 67 of the deemed provisions] indicate an appearance of exhaustiveness on the subject of [the matters for consideration in the determination of a development application under TPS 3] thereby creating an incompatibility and inconsistency between it and [cl 10.2 of TPS 3].
In consequence, under s 257B(3) of the PD Act, cl 67 of the deemed provisions prevails over cl 10.2 of the Scheme text to the extent of the inconsistency. In effect, cl 67 of the deemed provisions has replaced cl 10.2 of TPS 3 (and all equivalent provisions in local planning schemes in Western Australia based on cl 10.2 of the former Model Scheme Text) by virtue of s 257B(3) of the PD Act.
Relevantly, in terms of the agreed issues for determination (which are set out in the next section of these reasons), in considering the application for development approval, the Tribunal is required to have 'due regard' to the following matters set out in cl 67 of the deemed provisions:
(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;
(d)any environmental protection policy approved under the Environmental Protection Act 1986 section 31(d);
(e)any policy of the Commission;
…
(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;
…
(s)the adequacy of
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety …
Issues for determination
As there was some disagreement between the parties in their respective statements of issues, facts and contentions as to the issues for determination, and as other issues appeared, in effect, to have been raised in witness statements filed by the parties and in written submissions filed by the owners of Lot 41 (in accordance with the leave granted by the Tribunal pursuant to s 242 of the PD Act), the Tribunal formulated a set of 10 issues which appeared to arise for determination and discussed those issues with counsel for both parties during their openings. Counsel agreed that the following 10 issues arise for determination in the review.
However, as discussed later in these reasons, certain issues, or aspects of them, in effect, fell away during the hearing. This occurred as a result of Puma's election for servicing of the development to be on the basis of option 2 (via the crossover on Clontarf Road), rather than option 1 (via the right of carriageway over Lot 41), the formulation of conditions agreed between the parties as suitable for imposition if the Tribunal determined that conditional approval of the proposed development is appropriate, and Ms Butterworth's revision of her opinions in relation to some aspects (in part, because of agreed conditions).
The 10 agreed issues for determination are as follows:
1)Is the development application incapable of approval in the absence of owner's consent given by the owners of Lot 41?
2)Is the correct land use classification of the proposed development under TPS 3:
a)'convenience store'; or
b)'petrol filling station'?
3)If the correct land use classification of the proposed development under TPS 3 is 'convenience store', does the proposed development comply with any relevant development standards or requirements of TPS 3 for the purposes of cl 4.3.3 of TPS 3, and, if not, should discretion be exercised under cl 5.6 of TPS 3?
4)Is the proposed development acceptable in relation to traffic safety and convenience?
5)If the correct land use classification of the proposed development under TPS 3 is 'convenience store':
a)should any condition of development approval be imposed to ensure that it will operate in an acceptable manner in relation to traffic safety and convenience?; and
b)if so, what condition(s) of development approval should be imposed?
6)Is the proposed development acceptable in relation to its impact upon:
a)the portion of Lot 41 which is burdened by an easement benefitting the site?
b)the portion of the site which is burdened by an easement benefitting Lot 41?
7)If the correct land use classification of the proposed development under TPS 3 is 'convenience store' and if the answer to either or both of paragraphs (a) or (b) of issue 6 is 'yes':
a)should any condition of development approval be imposed to ensure that it will operate in an acceptable manner in relation to the land the subject of the relevant easement?; and
b)if so, what condition(s) of development approval should be imposed?
8)If the correct land use classification of the proposed development under TPS 3 is 'convenience store', should a condition of development approval be imposed to the effect that the retail sale of petrol may not commence unless and until sound sitespecific technical analyses / scientific studies based on sitespecific and industryspecific information are provided to the City which demonstrate that a lesser distance than the generic separation distance of 50 metres to residential land uses will not result in unacceptable impacts from the retail sale of petrol component of the development in relation to (i) gaseous; (ii) odour; and (iii) risk impacts?
9)If the correct land use classification of the proposed development under TPS 3 is 'petrol filling station', is the proposed development consistent with the objective of the Local Centre zone under TPS 3?
10)If the correct land use classification of the proposed development under TPS 3 is 'petrol filling station', is the proposed development acceptable in relation to amenity (including environmental impacts) on nearby residential properties in terms of (i) noise; (ii) traffic; (iii) gaseous; (iv) odour; (v) lighting; (vi) advertising signage; and (vii) risk impacts?
We will now proceed to address each of these issues insofar as they have not fallen away during the hearing.
Issue 1: Is the development application incapable of approval in the absence of owner's consent given by the owners of Lot 41?
On 25 September 2015, the Tribunal granted leave, pursuant to s 242 of the PD Act, to Kupal Investments Pty Ltd, Snowdonia Nominees Pty Ltd, Mr Christopher Luke Somas and Ms Marcia Manolas, who are the registered proprietors of Lot 41, to make a written submission dated 17 September 2015 in respect of the application for review. That submission became Exhibit 27 in the proceeding. On 4 February 2016, the Tribunal granted leave, pursuant to s 242 of the PD Act, to Ms Manolas to make a further written submission dated 1 February 2016 (prepared by her solicitors, Lavan Legal) in respect of the application for review. That submission became Exhibit 21 in the proceeding. In addition, the City called Ms Manolas as a witness and tendered an amended witness statement of Ms Manolas dated 3 February 2016. Ms Manolas' amended witness statement became Exhibit 8 in the proceeding.
As noted earlier, there are reciprocal easements conferring rights of carriageway in relation to the site and Lot 41. The easements enable vehicles (and pedestrians) to travel between the site and Carrington Street, over a 4 metre wide section of Lot 41 (immediately adjoining the northern boundary of the site), and vehicles (and pedestrians) to travel between Lot 41 and Clontarf Road, over a 7.6 metre wide strip of the site (commencing in the northwestern portion of the site and then realigning, between approximately 12 metres and 22 metres from the northern boundary of the site, to the alignment of the existing and proposed crossover from the site to Clontarf Road). The reciprocal easements were conferred by Deeds executed by the then registered proprietors of the site and Lot 41 on 19 September 1983. The Deeds each confer:
Full and free right and liberty to the Grantee and the Grantee's tenants, servants, agents, workmen and visitors on foot or in vehicles for all lawful purposes connected with the use of [the site / Lot 41] at all times hereafter to pass and repass over the subject land for the purposes of gaining access to and egress from [Lot 41 / the site] and to and from the roadways which adjoin [the site] and Lot 41.
When the development application was lodged with the City and originally refused by the Council on 12 February 2015, Puma proposed that all petrol tankers, refuse trucks and all other medium rigid and larger vehicles servicing the proposed development would utilise the right of carriageway over Lot 41. However, as noted earlier, when Puma made amendments to the development application during the proceeding and the Tribunal invited the Council to reconsider its decision pursuant to s 31 of the SAT Act, Puma put forward an alternative (subsequently referred to as 'option 2') of servicing the site by all petrol tankers, refuse trucks and all other medium rigid and larger vehicles via the site's crossover on Clontarf Road, rather than via the right of carriageway.
Furthermore, and significantly, following an exchange between the Tribunal and counsel for Puma, Mr DH Solomon, during the opening of Puma's case at the hearing, Puma abandoned its original proposal to service the site via the right of carriageway in terms of option 1 and elected to service the site in terms of option 2. To this end, Puma agreed to the imposition of a condition of development approval under which a Traffic Management Plan would have to be approved by the City and implemented at all times by Puma to the satisfaction of the City requiring, among other things, 'that all petrol tankers, refuse trucks and all other medium rigid and larger vehicles servicing the site shall enter and exit from Clontarf Road' (see condition 2 at the end of these reasons).
In each of the two written submissions made by the owners of Lot 41 in respect of the application for review, and in Ms Manolas' witness statement, the key concern expressed by the owners of Lot 41 was in relation to the use of the right of carriageway over their property by commercial vehicles, particularly petrol tankers, refuse trucks and other trucks, servicing the site. However, in consequence of Puma's abandonment of that option and agreement to a condition in effect requiring all petrol tankers, refuse trucks and all other medium rigid and larger vehicles to service the site from Clontarf Road, the submissions and concerns of the owners of Lot 41 have largely fallen away. Although the traffic engineering expert witnesses, Mr Donald Veal, called by Puma, and Mr Rodney Ding, called by the City, agreed that approximately 5% to 10% of (non-service) vehicle trips generated by the proposed development are likely to utilise the right of carriageway over Lot 41, the owners of Lot 41 did not express any real concern in relation to this prospect.
Nevertheless, it is necessary and appropriate to address one specific submission made in Ms Manolas' written submission dated 1 February 2016, because, although the basis on which that submission was made has fallen away, it raises a jurisdictional issue of wider significance in relation to planning law.
Ms Manolas submits that, if the site were serviced by petrol tankers, refuse trucks and other medium rigid and larger vehicles via the right of carriageway over Lot 41, 'then [Puma's] development proposal would effectively contemplate development being carried out on Lot 41.' Ms Manolas notes that cl 9.1.1 of TPS 3 states that a development application 'is to be signed by the owner' (emphasis original) and that, similarly, cl 62(1)(b) of the deemed provisions states that a development application must be 'signed by the owner of the land on which the proposed development is to be located'. Ms Manolas, therefore, submits that '[a]s the development application forms in this case had not been signed by the owner of Lot 41, the Tribunal does not have the power to uphold the application for review, to the extent that [servicing of the proposed development via the right of carriageway] is adopted.' Ms Manolas also submits that, '[f]or the avoidance of any doubt, the [owners of Lot 41 have] not at any time consented to [Puma's] development application encompassing the use of part of Lot 41, and to the extent that [Puma] believes such consent has implicitly been granted, [the owners of Lot 41] hereby revoke[e] that consent.'
I certify that this and the preceding [209] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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