Quayda Pty Ltd and Shire Of Peppermint Grove

[2007] WASAT 191

QUAYDA PTY LTD and SHIRE OF PEPPERMINT GROVE [2007] WASAT 191

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 191
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:318/2006	Heard:	19 APRIL 2007 FINAL WRITTEN SUBMISSION 26 APRIL 2007
Coram:	MR J JORDAN (MEMBER)	Delivered:	24/07/07
No of pages:	18	Judgment Part:	1 of 1
Result:	The application for approval of the development application for change of use at Lot 2 corner Stirling Highway and Irvine Street, Peppermint Grove is dismissed. The refusal decision of the Shire of Peppermint Grove is affirmed.
Category:	B
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Parties:	QUAYDA PTY LTD SHIRE OF PEPPERMINT GROVE
Catchwords:	Town planning ­ Development application ­ Refusal ­ Proposed use of storage area and staff area as office ­ Floor space allocation in the previous approvals ­ No on-site parking ­ Use of street parking ­ Impact of parking on neighbouring residential use ­ Orderly and proper planning ­ Use of discretion to relax parking standard
Legislation:	Local Government Act 1960 (WA) Metropolitan Region Scheme Planning and Development Act 2005 (WA), s252(1) Shire of Peppermint Grove Town Planning Scheme No 3, cl 1.6, cl 3.2.2, cl 4.2, cl 4.8, cl 4.8.1, cl 4.8.2, Sch 6 State Administrative Tribunal Act 2004 (WA), s 244
Case References:	Kellett and Town of Vincent [2007] WASAT 155 Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Orders	The application for approval of the development application for change of use at Lot 2 corner Stirling Highway and Irvine Street, Peppermint Grove is dismissed. ,The refusal decision of the Shire of Peppermint Grove is affirmed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : QUAYDA PTY LTD and SHIRE OF PEPPERMINT GROVE [2007] WASAT 191 MEMBER : MR J JORDAN (MEMBER) HEARD : 19 APRIL 2007 FINAL WRITTEN SUBMISSION 26 APRIL 2007 DELIVERED : 24 JULY 2007 FILE NO/S : DR 318 of 2006 BETWEEN : QUAYDA PTY LTD

Applicant

AND

SHIRE OF PEPPERMINT GROVE
Respondent

Catchwords:

Town planning ­ Development application ­ Refusal ­ Proposed use of storage area and staff area as office ­ Floor space allocation in the previous approvals ­ No on-site parking ­ Use of street parking ­ Impact of parking on neighbouring residential use ­ Orderly and proper planning ­ Use of discretion to relax parking standard

Legislation:

Local Government Act 1960 (WA)

Metropolitan Region Scheme

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Planning and Development Act 2005 (WA), s252(1)
Shire of Peppermint Grove Town Planning Scheme No 3, cl 1.6, cl 3.2.2, cl 4.2, cl 4.8, cl 4.8.1, cl 4.8.2, Sch 6
State Administrative Tribunal Act 2004 (WA), s 244

Result:

The application for approval of the development application for change of use at Lot 2 corner Stirling Highway and Irvine Street, Peppermint Grove is dismissed.

The refusal decision of the Shire of Peppermint Grove is affirmed.

Category: B

Representation:

Counsel:

Applicant : Mr A Lohman (Acting as Agent)
Respondent : Mr T Mayor (Acting as Agent)

Solicitors:

Applicant : Greg Rowe & Associates (Planning Consultants)
Respondent : Shire of Peppermint Grove

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

Kellett and Town of Vincent [2007] WASAT 155
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Quayda Pty Ltd owns an office building on the corner of Irvine Street and Stirling Highway, Peppermint Grove. In 1997, the Council of the Shire of Peppermint Grove approved the change of use of the building from restaurant to offices. A roofed outdoor eating area of 109 square metres attached to the eastern end of the building was not included in the office space. The development was allowed with less than the required number of on-site parking spaces.

2 In 2004, the Council granted planning approval for renovations to the building. These included enclosure of the former outdoor eating area for uses shown on the application sketch as incidental to the existing office use. The Council did not require additional parking spaces as it considered there was no increase in floor area used specifically as offices.

3 In 2006, the Council refused an application from Quayda Pty Ltd to use the 109 square metres as additional office space because there was insufficient space on the site to provide the required five additional car parking spaces.

4 Quayda Pty Ltd said the development should be allowed because of the approvals previously issued for the site. It also said the discretion available to relax standards should be exercised because the parking requirement could be satisfied by the nearby all-day street parking and this would have no adverse impact on the locality.

5 The Tribunal considered that the planning consequences of allowing the development without on-site parking would be an unreasonable departure from the spirit and purpose of the parking standard. The on-street commercial parking would extend further the impact on the amenity of the residential area. The Tribunal has therefore decided to dismiss the application and affirm the Council’s decision.

Introduction

6 These proceedings involve an application by Quayda Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA), (PD Act) for review of the decision of the Shire of Peppermint Grove (respondent, Council) to refuse an application for approval for additional floor space to be used as office in the premises at Lot 2, corner Stirling Highway and Irvine Street, Peppermint Grove (Lot 2, site).

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Site and the locality

7 The site has a curved frontage to Stirling Highway at the western end and is 10 metres wide. The southern boundary of about 44 metres fronts Irvine Street. The building on the site is single storey rendered brick with metal roof and with walls on the northern, western and the southern boundaries. At the eastern end of the site is an open area of about 90 square metres, brick paved with a crossover from Irvine Street.

8 Relevant to an understanding of this matter, the building can be described as comprising 201 square metres at the Stirling Highway end (western section) and 109 square metres at the eastern end (eastern section). The western section is used as the office of a real estate agent and comprises individual offices, a meeting room, reception, an open plan area and lavatory facilities. The eastern section comprises a large open floor area supported on columns with windows along the Irvine Street frontage adjacent to a one-metre wide planter box on the property boundary next to the footpath. On the north-eastern corner of this space are what appear to be a sink and area of tiled floor.

9 On the opposite, southern, corner of Irvine Street and Stirling Highway is a liquor store. East of the site on both sides of Irvine Street are lots with single houses. Irvine Street adjacent to the site and to the east is sufficiently wide to accommodate parallel parking both sides of the street whilst leaving road pavement for two-way opposing traffic. On Irvine Street are four two-hour parking spaces adjacent to the site and two two-hour spaces opposite outside the liquor store. East of the site on both sides of Irvine Street in front of the houses parking is signposted and is unrestricted.

10 Each side of Stirling Highway to the north and south of the site are commercial premises and shops. The Grove shopping centre on the corner of Leake Street and Stirling Highway to the north has a private on-site car park at the rear.

Planning framework

11 Under the Metropolitan Region Scheme (MRS) a narrow strip of the western end of the site adjacent to Stirling Highway is reserved as primary regional road. The remainder of the site is zoned urban in the MRS.

12 Under Shire of Peppermint Grove Town Planning Scheme No 3 (TPS 3), the zoning map shows the regional road reservation with the remainder of the site within the commercial zone of TPS 3. Lots to the

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north fronting Stirling Highway are also zoned commercial. To the south across Irvine Street and east on both sides of Irvine Street the lots are zoned residential. The liquor store on the opposite corner is a non-conforming use.

13 In the zoning table of TPS 3, under commercial zone, the use "office" is a "P" use. At cl 3.2.2, it states:

"'P' means that the use is permitted provided it complies with the relevant standards and requirements laid down in the Scheme and all conditions (if any) imposed by the Council in granting planning consent."

14 At cl 1.6 of TPS 3, it states:

"The objective of the Scheme is to maintain and to encourage a high quality of environment."

15 The car parking provisions of TPS 3 are set out at cl 4.8. Clause 4.8.1 states:

"A person shall not erect or use a building unless paved parking spaces or garages with all necessary accessways are provided on the lot on which the building is erected at least to the extent specified in the table below in accordance with the requirements of this Part."

16 From the table the number of parking spaces to be provided for offices is:

"1 to each 25 m² of gross floor area or part thereof."

17 Clause 4.8.2 provides that no car-parking bay and access way shall be less than the dimensions shown in Sch 6 of TPS 3.

18 Clause 4.2 provides that Council may approve an application for planning consent that does not comply with a standard or requirement prescribed by TPS 3. The application may be approved unconditionally or subject to such conditions as the Council sees fit.

Background

19 For some years prior to 1997 the site was used as a restaurant with no on-site parking. In June 1997, the respondent granted planning consent for the use of the western section of 201 square metres as office (the 1997

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approval). The eastern section of 109 square metres remained unchanged from when erected as an outdoor eating area with a parapet wall on the northern boundary, columns supporting a thatched roof and a planter box with wrought iron grilles above on the Irvine Street frontage. The 90 square metre open space area adjacent to the eastern boundary remained unchanged.

20 As a condition of the 1997 approval, the applicant was required to enter into a deed with the Council. In this deed it was acknowledged that in granting planning approval to use the section of the building marked blue on a plan attached to the deed as a real estate office - the 201 square metre western section - the Council had agreed to a lesser requirement for off-street parking. The deed also required that the owner establish the off-street parking on the existing open space area. This was to be in accordance with the plan attached to the deed and it showed six parking spaces. To be noted is that this parking layout was such that if all spaces were occupied only one car would be able to get out without requiring a second or more cars to be moved.

21 In October 2004, the Council granted planning consent for renovations to the building on the site (2004 approval). The plans of the 2004 planning approval put into evidence show that the thatched roof of the 109 square metre eastern section was to be replaced with a new metal roof and that the grilles on the southern side were to be replaced by windows between the existing columns. The plans stamped "approved" by the Council showed in the eastern section a strip delineated by a dashed line and marked "passage" extending from a door in the western wall to a door in the eastern wall adjacent to the car park. On the northern side of the passage was an area with the label "relocated kitchen facilities" at the eastern end of which was delineated a tiled floor area and a sink. On the southern or Irvine Street side of the passage were two areas divided by a dashed line on the plan, one marked "staff" and a slightly larger area marked "storage". The plan did not show the erection of any walls to divide these areas.

22 The plans also showed new full-height walls in the western section creating individual offices, a meeting room and new toilet facilities. Council granted planning consent to the alterations and additions subject to conditions concerned with roofing material, retention of the Irvine Street planter box and the appropriate treatment of window openings in the wall on the northern boundary.

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23 The 2004 approval plans did not show the parking area and no reference was made to parking. In this regard, the comment made by the respondent at the hearing was that none of the renovated eastern section was shown to be used for offices and therefore the 2004 approval did not constitute an intensification of the office use of the site.

24 The applicant put into evidence (exhibit 6) a Certificate of Classification dated 4 January 2006 prepared for the purpose of building classification under the Local Government Act 1960 (WA). The reverse side of the certificate showed a plan stamped by the respondent "Building Approval License No 2837 30 Aug 2005". This plan is different from the 2004 approval plan. It shows no door from the eastern section to the car park in the eastern wall and a door from the Irvine Street footpath directly into the eastern section. There is no door directly between the eastern and western sections, the only access being via the lavatory area. At the western end of the eastern section is the label "kitchenette" and there is a similar label in the western section adjacent to the wall of the lavatory area.

25 In July 2006, the applicant lodged with the Council an application for planning consent to use the area shown as staff and storage areas and relocated kitchen facilities on the plans of the 2004 approval as office space (the 2006 application). The 2006 application included advice that the eastern section might be occupied by a developer for six months of the year, or an architect, or the real estate office might expand into the area.

26 It was the refusal of the 2006 application that led to the current proceedings before the Tribunal.

The refusal

27 In August 2006, the Council resolved not to grant a planning consent for the 2006 application on the basis that:

"1. There is insufficient remaining open space on Lot 2 Stirling Highway to provide the required five car parking bays for the proposed additional (109 m²) of office space and further, the Shire of Peppermint Grove cannot accept cash-in-lieu payment for alternative car parking as there is no nearby car parking that would be capable of servicing the needs of the development, nor is the shire of Peppermint Grove proposing to develop a public car park in the vicinity of the development."

(Page 8)

The issues

28 The following issues arise for determination in this matter:

1. whether the store and staff area of the eastern section of the building on the site has ever been approved for "office" use under TPS 3;

2. whether reducing the number of off-street parking spaces at this site would be in the interests of orderly and proper planning of the locality;

3. whether reducing the number of off-street parking spaces at the site will be in the interests of the preservation of the amenities of the locality and have an adverse effect on the inhabitants of the locality; and

4. whether reducing the number of off-street parking spaces would be an unreasonable departure from the spirit and purpose of the requirement and standards provided by cl 4.8 of TPS 3.

Whether the store and staff area of the eastern section of the building on the site has ever been approved for "office" use under TPS 3?

29 The applicant questioned whether planning approval was actually required for the proposed development. Mr Sean Fairfoul, a town planner who gave evidence in support of the applicant, said that the 2004 approval effectively extended the existing office use of the western section to include the 109 square metres of the eastern section. Usual planning practice did not limit the extent of the use "office" solely to desk space, but generally included the total floor space of offices and incidental uses such as lobbies, reception areas, storage, staff facilities and toilets, unless specifically excluded by the scheme.

30 Mr Fairfoul said it was now proposed to rearrange the floor areas within the total premises approved for office use, with different proportions of the floor area to be used for the existing activities. As such, it was his view that the rationalisation of staff facilities and storage into desk space, which consisted of internal alterations only, should not trigger the requirement of the respondent to require a grant of planning approval for a change of use.

31 Mr Terrance Mayor, the respondent's town planning officer, both represented and gave evidence on behalf of the respondent. Mr Mayor

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said the 1997 approval included the deed of agreement and it identified in blue on an attached plan, essentially the western section, the area on which the parking requirement was calculated, acknowledging that a concession was granted. The green area on the deed plan, the eastern section, remained an open-sided structure and not part of the office.

32 When he inspected the site in August 2004 the eastern section was still open sided and used for storage of signs and other material associated with the real estate business. It was his evidence that the 2004 application for planning approval proposed enclosure of the eastern section only for purposes of storage, staff and kitchen facilities. Mr Mayor was of the view that the 1997 deed was still in place, parking had been assessed relative to the blue area and, as no additional office space was proposed that would warrant variation of the parking calculation, parking was not a requirement of the 2004 approval.

33 Mr Mayor, when questioned, acknowledged that it was common practice to define an area of use, such as office, and calculate parking from the gross floor area. He added, however, that rather than include the entire area for the car-parking calculation in 2004 the respondent was influenced by the deed of agreement in place and the uses identified for the eastern section on the application plan. It was his submission that, consistent with the 2004 approval, the eastern section could only be used as staff, storage and the kitchen facility areas. The current proposal was for an additional 109 square metres of space to be used as offices and he therefore considered it appropriate to include consideration of parking requirements for the change of use.

34 Mr Mayor pointed out that the deed included at cl 3 the right of the respondent to review parking requirements if the owner submitted a proposal to change the improvements in the green section of the attached plan. He agreed that it might have been reasonable to revisit parking in 2004 but this was not done. It was his submission that, as there was now a new application, there was the opportunity to revisit parking.

35 The Tribunal agrees that the usual approach, unless the scheme states otherwise, is to include in a use such as office, those areas of incidental activities such as reception, staff room, toilets and passageways. The plans for the 2004 approval were clearly marked to show the additional 109 square metres as areas for use as storage, staff and kitchen facilities associated with the use of the western section as a real estate office. It is apparent that the respondent accepted the incidental use floor areas as designated on the application plan, notwithstanding that they were an

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unusually large proportion of the premises and imposed no requirement for additional parking.

36 In determining whether there is a change of use proposed, the Tribunal is of the view that it is a matter of fact and degree. To be considered in each case is the change in the proportional relationship between what can be described as the incidental activities and the activity that identifies the use – office activity. The 109 square metres of the eastern section is now to be identified as office space occupied by office workers conducting office activity and utilised so that it can be made available for separate tenants. The eastern section is 35% of the floor area of the premises. The Tribunal does not consider that this can be characterised as a mere rearrangement of floor area with some marginal changes to the proportions of office activity and incidental uses as submitted by the applicant.

37 Planning approval was granted in 2004 for the use of the eastern section as part of the office development, but in the view of the Tribunal this approval was for the use of that space as part of the incidental activities of the existing office use. The Tribunal considers that the respondent acted correctly in requiring that an application be made for planning approval for the use now proposed to be made of the eastern section of the building.

Whether reducing the number of off-street parking spaces at the site would be in the interests of orderly and proper planning of the locality?

38 The respondent’s reason for refusal referred to five required parking spaces not being provided. At the hearing Mr Mayor further submitted that the development should be refused because there would now be 310 square metres of office, comprising the previously approved 201 square metres of floor area and the proposed additional 109 square metres. Pursuant to the requirement of one parking space per 25 square metres of gross floor area or part thereof in the table of cl 4.8.1 of TPS 3, this would require 13 off-street car-parking spaces - five for the eastern section and eight for the western section. Mr Mayor referred to photographs that showed only three off-street car parking spaces had been provided on site and no further on-site spaces were proposed. This he said would result in a shortfall of 10 parking spaces.

39 Mr Fairfoul said that, notwithstanding any other argument, there was 109 square metres of office space under consideration and under the table of cl 4.8.1, five on-site, that is, off-street, parking spaces were required.

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40 The Tribunal finds that the proposed development generates a requirement for five off-street parking spaces. The 1997 approval required that the open space be used for parking to accommodate the maximum number of vehicles possible (condition 1). The plan attached to the deed agreed as part of the 1997 approval identified six marked on-site parking spaces. The 2004 approval included alterations to the western section and so the opportunity to consider parking requirements again arose. The 2004 approval did not impose any additional parking spaces.

41 In Kellett and Town of Vincent [2007] WASAT 155, the President of the Tribunal reviewed, under s 244 of the State Administrative Tribunal Act 2004 (WA), conditions imposed by a non-legal member of the Tribunal on restricting operating hours of a beauty salon. The Member imposed operating hours on the proposed extension to the salon applied for and also new operating hours on previously approved sections of the beauty salon. The President found at [23] that the member erred in law in imposing conditions on the existing beauty salon given that it was not the subject of the development application and had been granted development approval previously without the restrictions on operating hours.

42 The 2006 proposal does not include the western section. The respondent determined previously what parking was required for the western section and the applicant proceeded on that basis. The Tribunal does not accept that the current application provides an opportunity to revisit the conditions imposed, including parking requirements, for the western section.

43 It was Mr Mayor's submission that the proposed development would not be consistent with the orderly and proper planning of the locality. While he noted that there was an interface between a residential zone and a commercial zone and the only long-term parking in the locality was in Irvine Street outside houses, he did not believe it could be an expectation of commercial uses to provide parking for employees and clients in the residential area utilising street parking intended for the benefit of local residents.

44 The applicant called Mr Tony Shaw, a traffic engineer who prepared a report "Review of Car Parking Requirements 500 Stirling Highway, Peppermint Grove" 23 March 2007 (Shaw parking report). In order to assess the impact of the proposed use on "on-street parking", Mr Shaw surveyed Irvine Street for 150 metres east of Stirling Highway on three weekdays in March 2007 at times in the morning, middle of the day and once in the late afternoon to record parking occupancy and capacity.

(Page 12)

From the survey there was found to be between eight and 11 of 27 spaces available within 150 metres of the site in Irvine Street, except for one day at 1 pm when three spaces were available. More all-day on-street parking was available further to the east.

45 Mr Shaw was of the opinion that the parking generated by the proposed use could be accommodated in the street without adverse impact on existing parking or on traffic flows at the Stirling Highway corner and in Irvine Street.

46 Mr Fairfoul referred to the findings of the Shaw parking report and further submitted that most commercial premises on Stirling Highway did not provide on-street parking. No evidence was presented in support of this, but when questioned, Mr Mayor did not dispute the assertion. Mr Fairfoul said that in his opinion, because on-street parking was available and cl 4.2 of TPS 3 provided that non-complying development could be approved, the proposal would not be contrary to the interests of orderly and proper planning for the locality.

47 Mr Shaw was also of the opinion that a re-marking of the existing on-site parking spaces to provide tandem parking could increase on-site parking to six spaces. Mr Shaw said he was not aware that TPS 3 required that vehicles exit in forward gear, but he offered the expert view that in this locality there was no unacceptable level of risk from vehicles reversing from the site. He also considered that a disabled parking bay could be part of the tandem arrangement. In his view, movement conflict in traffic did not mean an unacceptable risk in this location.

48 The Tribunal considers that the starting point for considering the orderly and proper planning of the locality are the TPS 3 requirements. These then have to be applied to the circumstances. There is no dispute between the parties that few other uses fronting Stirling Highway in the locality provide off-street parking. The respondent has also stated that it does not have and does not plan to provide off-street parking in the locality to which a development could contribute. The respondent has provided on-street all day parking in residential Irvine Street that abuts the commercial zone. Mr Mayor advised that there were no mechanisms in place to distinguish between on-street parking generated by residents who live adjacent and parking generated by the nearby commercial uses.

49 Orderly and proper planning would ordinarily require that parking generated within a commercial zone be accommodated within that zone. That is not what is happening presently in Irvine Street. To determine

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whether reducing the number of on-site parking bays would be consistent with the orderly and proper planning requires that there be considered the impact that the increase in demand for on-street spaces would have and whether in the circumstances discretion should be exercised to allow it to occur.

Whether reducing the number of off-street parking spaces at the site will be in the interests of the preservation of the amenities of the locality and have an adverse effect on the inhabitants of the locality?

50 Mr Mayor considered it reasonable that residents expect to be able to have parking available for their own use in front of their home. He said the additional on-street parking generated by the proposed use would extend long-term parking into the residential area of Irvine Street. There would therefore be an adverse impact on the amenity of those residents and the locality.

51 The respondent called as witnesses Mrs Louise Snowball and Mr Paul Piercy, who both live in Irvine Street, 40 metres and 75 metres from the site, respectively. Both Mrs Snowball and Mr Piercy said that the instance of all-day parking in front of the houses in this section of Irvine Street had increased in recent years, with many vehicles remaining all day until 5 pm. Both witnesses said that they were often unable to park in the street outside their home and nor were visitors or tradespeople visiting their houses. A photograph was put into evidence of a car partially blocking Mr Piercy's driveway and Mrs Snowball felt it was dangerous backing out into the street when cars where parked on both sides of the road. It was the submission of Mrs Snowball and Mr Piercy that Irvine Street parking should be for local residents and their visitors and not for employees or clients of local businesses.

52 Mr Fairfoul said he considered it common planning practice to provide on-street parking in close proximity to commercial uses and that the level of amenity where commercial and residential uses meet cannot reasonably be expected to match that of a purely residential locality. The Shaw parking report showed that there was spare on-street parking currently available. He added that Irvine Street was a direct connection between Stirling Highway and the local residential area to the east and it should be expected to accommodate a greater amount of vehicle movements than found in local residential service roads.

53 Mr Shaw at par 8 and Mr Fairfoul at par 9 of their respective statements identified discrete offices uses currently occupying the eastern section separate from the current real estate office use of the western

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section. The applicant's submission was that, as the eastern section is currently in use, granting planning approval would not affect the existing amenity of the locality or of residents in Irvine Street. The current use was compared to the former restaurant use where no parking was provided on site and it was submitted that the office use had substantially less impact on the local amenity.

54 Mr Fairfoul said that one potential benefit of allowing on-street parking was an increase in activity within the street and the likely resulting improvement in passive surveillance.

55 In Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 the then Tribunal determined that decisions considering amenity must be based on objective evidence of the character of the area. Resident's views must still be taken into account, but as factors which confirm or deny the objective evidence being presented.

56 The present state of the amenity of Irvine Street can be ascertained from the evidence of the witnesses. The character of Irvine Street east of the commercial premises on the corner of Stirling Highway is one of single residences and mature street trees with marked parking parallel to the kerb.

57 Within the first 150 metres from the highway 27 parking bays are available for unrestricted all day parking in front of the houses. Mr Shaw’s evidence was that during working hours between 16 and 24 bays are usually occupied. The residents’ evidence was that parking is sometimes inconsiderate of the needs of residents to easily get to and from their property. The residents objected to not having parking available immediately in front of their house.

58 The Tribunal notes that if the eastern section were being used only for the purposes set out in the 2004 approval, there would be five less parking spaces required in Irvine Street for commercial use. It is noted also that three cars have not been accommodated on site from the earlier development of the western section.

59 Photograph PP 3 filed by Mr Piercy appears to show spaces closest to Stirling Highway occupied, with spaces available the greater the distance from the site. In circumstances where all day parking is permitted, parking generated from commercial development in Stirling Highway could continue to fill spaces to the east in Irvine Street. The parking spaces generated from the use of the eastern section of the building add to this.

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60 The Tribunal has formed the view that it is to be expected that the amenity of a residential street in which all day parking is allowed adjoining a commercial area will have a level of amenity less than that of a street in a residential location. The presence of commercial parking does, however, have an adverse effect on the amenity of the residential use of the street and the greater the requirement for commercial parking the further into the residential area that effect on the local amenity will spread. The Tribunal considers that a relevant consideration in whether a commercial development can be allowed with relaxed on-site parking requirements is minimising of the spread of this impact.

Whether reducing the number of off-street parking spaces would be an unreasonable departure from the spirit and purpose of the requirement and standards provided by cl 4.8 of TPS 3?

61 Clause 4.2 provides discretion to approve unconditionally or subject to conditions a development that does not comply with a standard or requirement of TPS 3, provided that the Council (or Tribunal on review) is satisfied that:

"(a) Approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality;

(b) The non-compliance will not have any adverse affect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality; and

(c) The spirit and purpose of the requirement or standard will not be unreasonable departed from thereby."

62 The purpose of cl 4.8 car parking provisions is to have on-site parking provided. The spirit can be ascertained from the objective of TPS 3 at cl 1.6 which is "… to maintain and to encourage a high quality of environment."

63 It was the applicant's submission that the spirit and purpose of TPS 3 will not be unreasonably departed from as a requirement to provide adequate car parking can be met by street parking within 150 metres without a detrimental effect on the amenity of the locality.

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64 Mr Shaw and Mr Fairfoul also said that the parking standard for office use in TPS 3 was excessive. They referred to a New South Wales publication "Guide to Traffic Generating Development" version 2.2 October 2002 (RTA Guide) as a more contemporary and accurate representation of parking demand for office development used an accepted industry standard and in use in at least one neighbouring local government. This stipulated one space for every 40 square metres of gross floor area, or three spaces for the proposed development. On this basis the likely impact of the parking from the proposed development was likely to be less than anticipated by the TPS 3 standard and this was another reason why discretion should be exercised in the applicant's favour.

65 Clause 5.6 of the RTA Guide makes the obvious statement that it is the responsibility of local government to determine parking policy in commercial centres. Mr Mayor submitted that it was appropriate that the respondent apply the standards in TPS 3 as the only technical document relevant to Peppermint Grove. The Tribunal has noted the applicant's submission, but it is the requirement to provide five parking spaces that is the concern of the proposed development.

66 The Tribunal does not consider it would be productive to suggest what number of on-site bays less than the standard might be acceptable because in this instance none of the required parking spaces can be provided on site. The mention made by the parties of other commercial sites not providing on street parking is also considered a relevant planning consideration. This is not considered to indicate that additional development on a commercial site should be excused compliance with the parking standard. The expansion of a use on another site would need to be considered on its merits, but the Tribunal is concerned that the ready availability of extended areas of on-street parking extending into the neighbouring residential zone not be viewed as a matter of course as an alternative to on-site parking.

67 The proposed development would contribute to the extension of the influence of commercially generated parking into the residential zone. In respect to the discretion of cl 4.2 of TPS 3, therefore, the Tribunal has formed the view that completely setting aside the parking standard of cl 4.8 would not be consistent with orderly and proper planning, would not assist in preserving the amenities of the locality and, while there might not be any adverse effect on the amenity of the occupiers of the site, would have an impact on the amenity of the residents of Irvine street. The Tribunal is of the opinion that there would therefore be an unreasonable

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departure from the spirit and purpose of the required standard of providing on-site parking.

Conclusion

68 The applicant made the submission that the designation of uses in the eastern section of the building in the 2004 application was a mistake of the draftsman. The Tribunal does not consider it would assist to speculate on whether the respondent’s decision would have been the same had there been a different intention shown in the 2004 application.

69 As set out above, the Tribunal has decided, on the basis of the evidence before it and the submissions of the planners representing the parties, that the uses now proposed for the eastern section of the building on the site are a change of use for that part of the building and the matter has to be considered as a proposal separate from the use made of the western section of the building.

70 The proposed development generates a requirement for five on-site parking spaces. None can be provided on site, but there is all day parking available in Irvine Street, in the adjoining residential zone.

71 To provide all of the parking on street in the residential zone would require a complete departure from the parking standard imposed by TPS 3. Clause 4.2 provides for a reasonable departure from the standard. The Tribunal has formed the view, however, that the standard should not be relaxed simply because there is parking available in a nearby residential street. In addition, as the additional commercial parking would extend further the impact on the residential area, it is considered there would be an unreasonable departure from the spirit and purpose of the parking requirements. The Tribunal is of the view that while discretion to relax a development standard is available, simply setting the standard aside as in this instance is not consistent with orderly planning.

72 The applicant asked that the development be allowed, but with variations to the draft conditions supplied, without prejudice to its position, by the respondent. The Tribunal has formed the view that the development as proposed cannot be supported, but would make the comments that the conditions suggested could not be imposed in any event and so could not be a relevant consideration in addressing the difficulties with the proposed development. The first two suggested conditions related to the marking of the parking bays required on the site by the 1997 approval of the use of the western section of the building. As identified above, the Tribunal has considered this matter as a proposed

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development of the eastern section of the premises on the site, separate from the development approval issued for the office use of the western section. Consistent with the findings in Kellett and Town of Vincent, the Tribunal cannot consider conditions for a previously approved development which is not the subject of the current application. Such conditions could not be a basis to support the proposed development.

73 The third condition referred to the applicant paying a sum to the respondent in lieu of providing the five additional on site parking bays. As stated by the respondent there is no power under TPS 3 for the respondent to accept cash-in-lieu payment where off-street car-parking could not be provided. Such a condition cannot therefore be contemplated in support of the proposed development.

74 The proposed development cannot comply with the standard parking requirement of TPS 3 and it is considered the planning consequences of not imposing a parking requirement would be an unreasonable departure from the spirit and purpose of the standard. The Tribunal has therefore decided to dismiss the application and affirm the Council’s decision.

Orders

1. The application for approval of the development application for change of use at Lot 2 corner Stirling Highway and Irvine Street, Peppermint Grove is dismissed.

2. The refusal decision of the Shire of Peppermint Grove is affirmed.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR J JORDAN, MEMBER