REALCOM GROUP PTY LTD and METROPOLITAN REDEVELOPMENT AUTHORITY

[2020] WASAT 150

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: METROPOLITAN REDEVELOPMENT AUTHORITY ACT 2011 (WA)

CITATION:   REALCOM GROUP PTY LTD and METROPOLITAN REDEVELOPMENT AUTHORITY [2020] WASAT 150

MEMBER:   MS C BARTON, MEMBER

HEARD:   2, 3 AND 4 SEPTEMBER 2020

DELIVERED          :   3 DECEMBER 2020

FILE NO/S:   DR 1 of 2020

BETWEEN:   REALCOM GROUP PTY LTD

Applicant

AND

METROPOLITAN REDEVELOPMENT AUTHORITY

Respondent

Catchwords:

Town planning - Development application - Exercise of planning discretion - Redevelopment area - Orderly and proper planning - Change of use - Liquor store - Not preferred or contemplated use - Light industry precinct - Land use objectives - Day-to-day needs of local employees - Desired amenity - Whether detrimental impact on established activity centres - Whether undesirable precedent - Normalisation of redevelopment area

Legislation:

City of Armadale Town Planning Scheme No 4
Evidence Act 1906 (WA)
Metropolitan Redevelopment Authority Act 2011 (WA), s 3, s 30(5), s 34, s 64(1), s 64(2), s 66(1), s 69(1)
Metropolitan Redevelopment Authority Bill 2011 (WA)
Metropolitan Redevelopment Authority Regulations 2011 (WA), reg 10, reg 14, Pt 3, Sch 1
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 24, s 27(1), s 27(3), s 29(1), s 29(3), s 32

Result:

Application dismissed

Summary of Tribunal's decision:

The applicant sought review of a decision by the Metropolitan Redevelopment Authority (MRA) to refuse a change of use from Fast Food Outlet to Liquor Store in relation to land located within the Forrestdale Business Park East.

The MRA refused the application for a change of use for reasons including:

1. the proposed land use is inconsistent with the Vision and Objectives of the Armadale Redevelopment Scheme 2 (ARS2) in that it would introduce a use that is incompatible with the intended role and function of Forrestdale Business Park East;

2. the proposed land use is inconsistent with the intended role and function of Precinct 7 - Forrestdale Business Park East Light Industry (Precinct) of the Forrestdale Project Area and would have a detrimental impact on established activity centres with the locality.

3. the proposed development is inconsistent with the Forrestdale Project Area Design Guidelines (Design Guidelines) in that it proposes a non-industrial use that is inconsistent with the day-to-day role and function of the Precinct; and

4. the proposed development is inconsistent with orderly and proper planning in that it proposes a use that is contrary to the intended function of an area designated industrial under ARS2 and the Design Guidelines.

In refusing the application for the proposed change of use, the Tribunal found that the proposed Liquor Store use is inconsistent with the Forrestdale Vision and the Precinct Statements of Intent of ARS2 in that the 'day-to-day needs of local employees' in Forrestdale Business Park East do not include services or conveniences relating to the provision of alcohol.  The Tribunal also found that the proposed used is inconsistent with the Design Guidelines because it will compete with and undermine the viability of the Challis Bottlemart, and as a consequence, the viability of the Challis Local Centre, an established activity centre within the locality.  If approved, the Tribunal found that the proposed use would set an undesirable precedent for other retail uses in the Precinct.

Category:    B

Representation:

Counsel:

Applicant	:	Ms K Pedersen
Respondent	:	Ms C Ide

Solicitors:

Applicant	:	Squire Patton Boggs
Respondent	:	State Solicitor's Office

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

Aspen Pty Ltd v State Planning Commission (unreported, Town Planning Appeals Tribunal of WA, Appeal No 13 of 1988, 21 October 1988)

Goldin & Anor v Minister for Transport (2002) 121 LGERA 101

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170

Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

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

Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27

Universal Enterprises Pty Ltd and Town of Victoria Park [2013] WASAT 62

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. On 3 January 2019, the Metropolitan Redevelopment Authority (MRA) granted the applicant development approval under the Armadale Redevelopment Scheme 2 (ARS2) for sixteen showrooms, two drive­through fast food outlets and two lunch bars (original approval/MRA-09910) on Lot 9047 Ranford Road, Forrestdale (subject land).  The subject land is located within Precinct 7 - Forrestdale Business Park East Light Industry Precinct of ARS2 (Precinct).

2. On 3 September 2019, the applicant lodged development application MRA-11018 for a change of use from a drive-through fast food outlet (Fast Food Outlet) to a drive-through liquor store (Liquor Store) (change of use) with respect to a portion of the subject land.  The proposed Liquor Store will have an area of 250m².  Aside from the change of use, all elements of the proposed development are the same as those approved by the MRA on 3 January 2019 including design, elevations, car parking, access, landscaping, signage and water management.

3. On 16 December 2019, the MRA refused development application MRA-11018 for the change of use (MRA's decision).  An extract from the MRA's decision is provided below:

   1.The proposed use is inconsistent with the Redevelopment Area Objectives as outlined in Section 30(5) of the Metropolitan Redevelopment Authority Act 2011 and Regulation 14 of the Metropolitan Redevelopment Regulations 2011 and the Vision and Objectives of Armadale Redevelopment Scheme 2 (Scheme 2) in that it would introduce a use that is incompatible with the intended role and function of Forrestdale Business Park East as an industrial centre and employment location. (Refer to Advice Note a)

   2.The proposed land use is inconsistent with clause 3.3 and table 6.2 of Scheme 2 as it is not a preferred or contemplated use within Precinct 7 – Forrestdale Business Park East Light Industrial of the Forrestdale Project Area, would be inconsistent with the intended role and function of the precinct and would have a detrimental impact on established retail/activity centres within the locality.  (Refer to Advice Note b)

   3.The proposed development is inconsistent with the Forrestdale Project Design Guidelines (the Design Guidelines), Section 3.2 – Land Use in that it proposes a non-industrial land use, that is inconsistent with the day to day role and function of the Light Industry Precinct and which will compete with established activity centres with the locality.  (Refer to Advice Note c)

   4.The proposed development is inconsistent with orderly and proper planning in that it proposes a use that is contrary to the intended function of an area designated Industrial under Scheme 2 and the Design Guidelines.  (Refer to Advice Note d)

4. The City of Armadale (City) initiated Amendment No. 107 to the City of Armadale Town Planning Scheme No 4 (TPS 4), which was published in the Western Australian Government Gazette on 28 July 2020 (Amendment 107). The purpose of the amendment is to include Forrestdale Business Park East (and the subject land) into the TPS 4 boundary. Amendment 107 will take effect upon finalisation of the 'normalisation process' by the removal of Forrestdale Business Park East from Sch 1 to the Metropolitan Redevelopment Authority Regulations 2011 (WA) (MRA Regulations).

5. The applicant applied to the Tribunal for a review of the MRA's decision under s 69(1) of the Metropolitan Redevelopment Authority Act 2011 (WA) (MRA Act).  The applicant seeks an order from the Tribunal that the decision of the MRA is set aside and the application for approval to undertake development (change of use) is granted.  For the reasons set out in this decision, the Tribunal finds that the application, the subject of the review, should be refused and the MRA's decision affirmed.

The issues for determination

1. The parties agreed that the following issues arise for determination by the Tribunal:

   1)Whether as a matter of orderly and proper planning, the proposed Liquor Store use ought to be approved having regard to:

   a)the fact that a liquor store is neither a 'Preferred' nor 'Contemplated' use under ARS2;

   b)whether the proposed use is consistent with the Forrestdale Vision and Forrestdale Precinct Statements of Intent (Precinct Intent) under ARS2 generally, and more particularly, whether it meets the day­to­day needs of local employees;

   c)whether the proposed use is consistent with the Forrestdale Project Area Vision and Land Use objectives of the Precinct in the Forrestdale Project Area Design Guidelines (Design Guidelines), by way of competing with, or undermining the viability of, the established activity centres in the locality; and

   d)whether approval will set an undesirable precedent for approval of liquor stores or other 'Retail' category uses within the Precinct or Forrestdale Business Park generally.

   The applicant also identified the following issues for determination by the Tribunal:

   e)whether the MRA failed to pay regard to the desired amenity of the redevelopment area as required by s 66(1)(e) of the MRA Act; and

   f)whether the MRA's consideration of the potential outcomes presented by Amendment 107 are irrelevant to the assessment and determination of the proposal as Amendment 107 is not a seriously entertained planning proposal.

Subject land and the locality

1. The registered proprietor of the subject land, known as Lot 9047 Ranford Road, Forrestdale, is Gazebo Management Pty Ltd. The subject land is formally described as Lot 9047 on Deposited Plan 412339, being the whole of the land in Certificate of Title 2942 Folio 811. It is located within the Armadale Redevelopment Area, as defined in s 3 of the MRA Act and Pt 3 of the MRA Regulations.

2. The area of the subject land is approximately 21,244m².  It is regular in shape and bounded by Remisko Drive to the north, Tesla Way to the south, Ranford Road to the east and Celsius Road to the west.  Although substantially cleared, the subject land is developed with a recently constructed building used as a medical centre and showrooms.  (On 15 July 2019, the applicant was granted approval under MRA-10644 for a change of use from 'Showroom' to 'Medical Centre' in respect of the original approval).  The current and future development on the subject land will have shared access to Remisko Drive and Tesla Way.

3. The subject land is located within the Precinct, an area of approximately 188 hectares, which is bounded by Tonkin Highway, Ranford Road and Armadale Road.  A significant portion of the Precinct has been developed with a range of light industrial and ancillary businesses, including warehouses, storage facilities, bulk goods wholesale, service stations and a fast food outlet.

4. The activity centres surrounding the Precinct include the Strawberry Drive Local Centre, Haynes Neighbourhood Centre, Saville Drive Local Centre, Westfield Local Centre, Champion Drive Neighbour Centre and Challis Local Centre.

The planning framework

1. The relevant planning framework, which the Tribunal has considered in its determination, is attached to these reasons as Annexure A and includes references to the following:

   1)MRA Act

   2)MRA Regulations

   3)ARS2

   4)Design Guidelines

   5)Forrestdale Business Park Structure Plan (Structure Plan).

The Tribunal's review jurisdiction

1. By reason of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the application to review the MRA's decision falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the MRA Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter): s 18 of the SAT Act.

2. The Tribunal is to review the decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before the Tribunal at the time of the review. In conducting the review, the Tribunal is not limited to the material before the MRA, as the original decision-maker, but may consider new material: s 27(1) of the SAT Act. The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a review proceeding: s 27(3) of the SAT Act.

3. The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record (s 32(2)(a) of the SAT Act), but is bound by the rules of natural justice (unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act): s 32(1) of the SAT Act.

4. The Tribunal 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities': s 32(2)(b) of the SAT Act. The Tribunal may inform itself on any matter it sees fit: s 32(4) of the SAT Act. To the extent that the practice or procedure of the Tribunal is not prescribed by the SAT Act or, the enabling Act, it is to be as the Tribunal determines: s 32(5) of the SAT Act. The flexible procedure provided for by s 32 of the SAT Act does require, however, that the Tribunal's decision is made on the basis of evidence that has probative force: see Sammut v AVM Holdings Pty Ltd [No 2] [2012]WASC27 at [40].

5. All of the functions and discretions conferred by the enabling Act on the original decision-maker are conferred on the Tribunal: s 29(1) of the SAT Act. Section 29(3) of the SAT Act confers specific power on the Tribunal to, amongst other orders, set aside the original decision, affirm that decision or vary that decision.

The conduct of the hearing and expert evidence

1. Mr Stuart McKnight, General Manager of Macroplan Economics and Planning Consultants (Macroplan), prepared a witness statement dated 7 July 2020. Mr McKnight has 25 years' experience in land use planning and development. He was engaged by the applicant to provide an independent economic assessment of the proposed development in the context of existing and planned activity centres. The applicant also called Mr Scott Vincent, a planning consultant with Planning Solutions (Aust) Pty Ltd, who prepared a witness statement dated 7 August 2020 with respect to the proposed development and its compliance with the MRA Act, MRA Regulations, ARS2 and the Design Guidelines. Mr McKnight and Mr Vincent were of assistance to the Tribunal in its determination.

2. The MRA relied on the evidence of Mr John Syme, the Principal of Syme Marmion & Co, a consulting firm that specialises in strategic planning and property economics.  Mr Syme has experience in economic and strategic consulting with respect to retail centres and industrial land planning and prepared a witness statement dated 7 July 2020.  Mr Syme and Mr McKnight prepared a joint statement dated 24 July 2020 on issues relating to their retail expertise.  The Tribunal found Mr Syme to be a credible witness who provided a balanced and objective assessment of the impact of the proposed development on Forrestdale Business Park East and the existing activity centres.  For this reason, to the extent there are differences of opinion between the retail experts, the Tribunal prefers the evidence of Mr Syme to that of Mr McKnight.

3. The MRA also relied on the evidence of Mr Glen Windass, who holds the position of Manager Statutory Planning with the City of Armadale (City).  Mr Windass prepared a witness statement dated 7 August 2020 with respect to the City's response to the development application.  Mr Simon Lenton, Manager Statutory Planning with the MRA, also gave evidence at the hearing and prepared a witness statement dated 10 August 2020 which addressed the issues raised by the MRA and the applicant.  Mr Lenton prepared a short supplementary report with photographs showing lots in the Precinct abutting major roads with similar characteristics to the subject land (Exhibit 10(a)).  The Tribunal found Mr Windass and Mr Lenton to be honest and reliable witnesses.

4. Each party filed a statement of issues, facts and contentions. On 2 June 2020, the MRA filed a bundle of documents under s 24 of the SAT Act. The Tribunal had the benefit of a site view on 2 September 2020 during which the Tribunal observed the existing development on the subject land, the nature and form of development fronting Ranford Road, the Precinct (Light Industry) and Precinct 7A (Industry) of Forrestdale Business Park East, the Haynes Shopping Centre and the Challis Road Local Centre. The proceeding was heard on 2, 3 and 4 September 2020 with the parties and all expert witnesses attending in person.

The parties' contentions

1. The parties' contentions in relation to each issue are summarised below.

Issue 1 ­ approval of a non-preferred or contemplated use under ARS2

1. The applicant contends that it is not determinative that a drive­through liquor store is neither a preferred nor contemplated land use because cl 6.7(2) of ARS2 confers discretion on the Authority (and the Tribunal standing in its shoes) to approve such a use.  The applicant points to cl 6.13 of ARS2 which recognises retail development as an important activity throughout the Scheme Area in providing convenient goods and services to local residents.

2. Under cl 6.7(1)(a) of ARS 2, in dealing with a development application for a defined use that is not preferred or contemplated, the MRA requires from the applicant written justification that details the suitability of the use in that location, including its consistency with the Scheme Area Vision (Forrestdale Vision) and the Precinct Intent and its compatibility with surrounding land uses.  The applicant contends that the proposed development is consistent with the Forrestdale Vision and Precinct Intent because it will, in summary:

   a)provide new business opportunities in an emerging light industrial/commercial area;

   b)contribute to the level of local convenience retail services offered to local employees and visitors to the area;

   c)contribute to local employment growth;

   d)improve the density of local enterprise; and

   e)provide services which support the wider employment and visitor base of the Forrestdale area.

3. The MRA contends that the proposed Liquor Store is inconsistent with the Precinct Intent because it is a Category 4 'Retail' use under Table 6.1 of ARS2 which is neither a preferred nor contemplated use within the Precinct.  The MRA further contends that the Liquor Store does not meet the day­to­day needs of local employees.  For these reasons, the MRA contends that the change of use is not consistent with the Forrestdale Vision and Precinct Intent for the purposes of cl 6.7(1)(a) of ARS2.

4. The MRA has approved previous applications on the subject land for a Fast Food Outlet (including MRA-08517 and MRA-09910).  A Fast Food Outlet is a Category 7 'Dining & Entertainment' use under Table 6.1 of ARS 2 but is neither a preferred nor contemplated land use in the Precinct.  The applicant contends that the benefits from the development of the Liquor Store are the same as those which the approvals for a Fast Food Outlet would have achieved and are consistent with the Precinct Intent.  In support of this contention, the applicant referred the Tribunal to the following findings in the MRA report dated 3 January 2019 recommending approval of MRA-09910 on the subject land:

   a)the proposed Fast Food Outlets provide an ancillary service in support of the Precinct and to meet the needs of local employees and visitors;

   b)the proposed Fast Food Outlets are appropriately set back and do not negatively impact upon the core industrial land uses; and

   c)the proposed development is consistent with the intent of the Structure Plan (which envisaged a variety of land uses that would support the industrial purpose of Forrestdale Business Park East).

1. The applicant contends that the change of use should be approved because the design, elevations, car parking, access, landscaping, signage locations and water management arrangements are to remain generally consistent with the approval granted on the subject land for a Fast Food Outlet under MRA-09910.

Issue 2 ­ is the proposed use consistent with the Forrestdale Vision and Precinct Intent under ARS2?

1. As stated above, the MRA contends that the proposed use is inconsistent with the Forrestdale Vision and Precinct Intent generally, and more particularly, does not meet the day­to­day needs of local employees.  The MRA contends that the Precinct Intent has the effect of cautioning against land use decisions which, either singularly or in aggregate, may result in the Precinct becoming a 'de facto Activity Centre'.

2. The Forrestdale Vision is found in cl 3.3 of Part C of ARS2.  It provides:

   Forrestdale is identified as an industrial centre in the Western Australian Planning Commission's Economic and Employment Lands Strategy:  non-heavy industrial, Perth Metropolitan and Peel regions (EELS).  Forrestdale will be developed progressively to cater for a range of manufacturing, processing, warehousing and bulky goods handling activities.  The Forrestdale Project Area will develop as a dynamic industrial hub and create an important employment zone to support Armadale's population growth.  As a major business and industrial hub, the project area will include coordinated, consistent and high-quality design, landscaping and standards of presentation.  The Forrestdale Project Area will generate local jobs and provide a highly credible business address for new industries and a diversity of enterprises, performing both on a functional and an aesthetic level with a defined identity and sense of place, and in harmony with its local environmental context.

3. The Precinct Intent in cl 3.3.1 of Part C of ARS2 provides:

   The precincts have high exposure and access to the existing and proposed regional road network and will be a focus of new economic activity and employment for the region.  The precincts will support a range of different scales of business activity, from smaller start-up businesses to larger scale uses that will meet the day to day needs of local employees without competing with strategic retail centres within the Armadale or Kelmscott town centres.

   The siting of industrial uses shall have regard to existing and future neighbouring residential development and environmental sensitive areas.  More intrusive industrial land uses shall be located on the north­western portion of the precinct to minimise any adverse impacts on other land uses and operate without impacting on the drainage basin and Conservation Category Wetland located immediately to the South.  Less intense industrial land uses shall be located along the major boundary roads of Armadale Road and Ranford Road and the major internal spine road, to maximise exposure to passing trade.

   (Emphasis added)

4. The applicant contends that the proposed Liquor Store is consistent with the Forrestdale Vision and Precinct Intent because it will support new economic activity and employment for the region and will not compete with the viability of the Armadale or Kelmscott town centres.  The applicant also contends that the subject land is not well suited to the establishment of more 'intrusive' industrial uses and is better suited to less intense industrial and ancillary uses given its peripheral location, exposure to passing trade, and proximity to local open space and residential properties.  In support of its contention that the Liquor Store will meet the day­to­day needs of local employees, the applicant relies on the evidence of Mr Vincent who identified that:

   a)the Liquor Store is intended to serve the day­to­day convenience and retail needs of local employees and businesses;

   b)a liquor store will help meet the day­to­day needs of local employees in a similar manner as a Fast Food Outlet or Medical Centre which have been approved;

   c)a small scale Liquor Store, as proposed, will support the delivery of different scales of business activity; and

   d)the Liquor Store is not a large format development which would attract customers from further away.

Issue 3 ­ is the proposed use consistent with the Design Guidelines as they relate to activity centres?

1. Under cl 4.6 of ARS2, all development is to generally comply with relevant Design Guidelines.  Clause 3.2.1 of the Design Guidelines refers to the land use objective for Light Industry Precincts as follows:

   Light Industry will accommodate less intensive industrial land uses developed along major roads and primary entry points enabling greater exposure to passing trade and providing a buffer between the Industry Precinct and neighbouring residential development and environmentally sensitive areas.  Uses located within Light Industry Precincts will not compete with or undermine the viability of established Activity Centres within the locality.  Non-industrial uses are not supported within the Project Area except where they are incidental to the primary industrial uses on a site[.]

   (Emphasis added)

2. The MRA contends that the Liquor Store is inconsistent with the Design Guidelines because it will compete with liquor stores in the established activity centres of Haynes Neighbour Centre, Challis Local Centre, and Champion Drive Neighbourhood Centre, and undermine the viability of the Challis Local Centre.

3. In contrast, the applicant contends that the development application would not undermine the viability of any activity centre in the locality.  The applicant relies on the findings in the Forrestdale Business Park: Liquor Store Retail Needs Assessment prepared by Macroplan in October 2019 (Macroplan report) to support its position that there will be no unacceptable economic impacts on any existing or planned activity centres in the area.  The applicant further contends that any perceived inconsistency with cl 3.2.1 of the Design Guidelines does not bind the Tribunal in respect of an application for development approval because of the operation of cl 4.8(1) of ARS2.  Clause 4.8(1) of ARS2 provides:

   Subject to the provisions of Chapter 5, a Policy or Design Guidelines shall not bind the Authority in respect of any Application for Approval to Undertake Development or Application for Subdivision, however the Authority shall have due regard to the provisions of relevant Policies and Design Guidelines and the objectives or outcomes which the Policy or Design Guidelines was designed to achieve.

4. The applicant contends that the Design Guidelines cannot be understood to require refusal where a proposed use would 'compete at all with a Local Activity Centre, or even where the viability of an individual store was threatened'.

Issue 4 ­ will approval of the proposed use set an undesirable precedent?

1. The MRA contends that the proposed development would create an undesirable precedent for other standalone Category 4 'Retail' uses and, other 'Liquor Store' uses.  The MRA observes that no standalone Category 4 'Retail' use has been approved within the Precinct or Precinct 7A under ARS2.  The MRA has previously approved a 'Pharmacy' land use, however, the MRA contends that its approval (MRA-09106) was conditional to only operate as an incidental component of the approved medical centre which is a 'Contemplated' Category 2 'Commercial' use under ARS2.

2. The applicant contends that ARS2 does not expressly prohibit any land use but rather provides flexibility and discretion for any land use to be considered on its merits.  The applicant points to several unique factors that are relevant to the Tribunal's determination of the merits of the development application (and which may not apply elsewhere in the Precinct or Forrestdale Business Park East), including:

   a)the peripheral location of the subject land and its exposure to passing trade along Ranford Road;

   b)the irregular shape and configuration of the subject land, and its reduced capacity to accommodate large industrial premises;

   c)the fact that the southernmost portion of the subject site is highly constrained including by Tesla Way to the south, the services corridor to the north, the internal constructed service road and the site's interface with the existing McDonalds to the east, and the Bunnings store to the South;

   d)the fact that the built form design of the proposal has already been assessed and approved by the MRA;

   e)the fact that the MRA approved a range of land uses that uniquely respond to the subject site context and rely on exposure to passing trade (noting that none of the approved land uses are truly industrial in nature); and

   f)the fact that the Macroplan report demonstrates the suitability of the proposal and lack of any significant off-site impacts.

3. In contrast, the MRA contends that there are a number of other sites in the Precinct that share many of the attributes of the subject land, such that approval of the proposed Liquor Store would create a precedent for the development of a liquor store on those sites.

Issue 5 ­ is the proposed use consistent with/beneficial to the desired amenity of the redevelopment area?

1. The applicant contends that the MRA failed to have regard to the desired amenity of the redevelopment area as required by s 66(1)(e) of the MRA Act and cl 5.18 of ARS2. The applicant observes that there is amenity value in the Liquor Store as it is ancillary and complementary to the operation and function of Forrestdale Business Park East, and meets the day­to­day needs of employees and visitors. Because the MRA approved a fast food outlet on the subject land with the same design and configuration as the Liquor Store, the applicant contends that the Liquor Store is also consistent with the desired amenity of the redevelopment area. The MRA contends that a liquor store does not form part of the desired amenity of the locality.

Issue 6 ­ should due regard be given to Amendment 107 and the City's planning policies?

1. To facilitate 'normalisation' of the redevelopment area, the City has prepared Amendment 107 to incorporate the Forrestdale Business Park East Project Area into TPS 4.  A liquor store is an 'X' (not permitted) use in the 'Industrial Business' zone which is the proposed zoning that will apply to the subject land as a result of Amendment 107.  The MRA contends that approval of the Liquor Store should not occur when it is likely that upon the cessation of ARS2 such a use will be prohibited under TPS 4.

2. Section 34 of the MRA Act provides that, in circumstances where land is removed from a redevelopment area, the Tribunal's review of a decision by the MRA to refuse a development application in respect of the land must be determined on the basis of the planning framework that was applicable at the time the application was made. Based on s 34 of the MRA Act, the applicant contends that Amendment 107 is irrelevant to the Tribunal's determination and the application must be decided in accordance with ARS2, being the approved redevelopment scheme that applied when the application was lodged on 3 September 2019. In support of its contention that the application must be determined in accordance with ARS2 alone, the applicant referred the Tribunal to the second reading speech of the Metropolitan Redevelopment Authority Bill 2011 (WA) (Bill) in the Legislative Council dated 31 August 2011 which explains that the Bill was designed to 'increase efficiency and consistency for state government priority projects, and certainty for investors considering new ventures'.  The applicant also observes that Amendment 107 was not a seriously entertained planning proposal at the time the application was considered by the MRA.

3. In the course of assessing a development application, the MRA is required by s 64(1) of the MRA Act to give written notice of the application and various particulars to the local government of the district in which the proposed development will be carried out. Under s 64(2) of the MRA Act, the local government may give the MRA a written submission about the proposed development.

4. The applicant contends that, s 64(2) of the MRA Act (and s 66(1)(c) and s 66(1)(d) of the MRA Act), cannot be construed to frustrate the operation of s 34 of the MRA Act. This is because, applying the maxim generalia specialibus non derogant, it would be a distortion of the statutory scheme for the MRA (and the Tribunal standing in its shoes) to have regard to the City's expressed intention to facilitate normalisation of the redevelopment area by way of Amendment 107.  The applicant further contends that consideration of the City's planning policies for commercial centres (which may, in due course, be applicable to the subject land once removed from the redevelopment area) are not matters that have any bearing on the exercise of the Tribunal's discretion in the context of the requirements of orderly and proper planning.

5. The applicant objects to the relevance of material in the witness statements of the experts called by the MRA that relates to the effect of Amendment 107 and consideration of the City's planning policies for commercial centres (including any references in those policies to State Planning Policy 4.2 ­ Activity Centres for Perth and Peel (SPP 4.2)).

The Tribunal's consideration

1. In considering a development application under the MRA Act, the Authority (and the Tribunal upon review) must have regard to the broad range of matters listed in s 66(1) of the MRA Act, as follows:

   a)the approved redevelopment scheme that applies to the land on which the development is proposed;

   b)the objectives for the redevelopment area in which the development is proposed that are prescribed under s 30(5)(c) of the MRA Act and reg 14 of the MRA Regulations;

   c)any submission received from a person notified under s 64 of the MRA Act;

   d)the requirements of orderly and proper planning; and

   e)the desired amenity of the redevelopment area in which the development is proposed.

2. The meaning of the phrase 'orderly and proper planning' in s 66(1)(d) of the MRA Act was considered by the Supreme Court of Western Australia in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall). Pritchard J held at [179] to [180]:

   … The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'.  The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'.  In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.

   The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments.  The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.

3. Pursuant to s 66(1)(a) of the MRA Act, the Tribunal must have regard to the provisions of ARS2. In determining an application made under ARS2, the Tribunal must also have due regard to the matters in cl 5.18 of ARS2 which include, relevantly:

   a)the ARS2 Vision and Objectives and the achievement of sustainable development;

   b)any relevant planning document adopted under ARS2, including but not limited to a Design Guideline, Policy, Heritage Inventory, or Development Contribution Plan;

   c)any submission received as a result of a referral to government bodies or public consultation, in accordance with cl 5.14 and cl 5.15;

   d)the requirements of orderly and proper planning; and

   e)the current and intended amenity of the locality.

4. There is no dispute that the proposed Liquor Store is neither a preferred nor contemplated use in the Precinct under Table 6.2 of ARS2.  Where a use is not preferred or contemplated, cl 6.7 of ARS2 provides that in dealing with a development application, the Authority (and the Tribunal standing in its shoes) will require, amongst other things, written justification from the applicant detailing the suitability of the use in that location, including its consistency with the Forrestdale Vision and Precinct Intent and its compatibility with surrounding land uses.

The Forrestdale Vision and Precinct Intent and whether the Liquor Store use meets the day­to­day needs of local employees

1. The applicant contends that the proposed Liquor Store use is consistent with the Forrestdale Vision and Precinct Intent and, in particular, that it meets the day­to­day needs of local employees.

2. Mr Vincent, who was called as a planning expert by the applicant, considered the proposed Liquor Store is generally consistent with the Forrestdale Vision and Precinct Intent because it will contribute to local employment, rely on high exposure and access to road networks, support the delivery of different scales of business and not compete with strategic retail centres within the Armadale or Kelmscott town centres.  Mr Vincent observed that the subject land is better suited to less intense industrial and other ancillary uses given its peripheral location (witness statement of Mr Scott Vincent dated 7 August 2020 at paras 10.2 and 10.4).  Mr Vincent also considered the proposed Liquor Store is generally consistent with the Structure Plan because the subject land is located within the Highway Commercial zone which supports the development of commercial uses around key entrances to Forrestdale Business Park East.  However, Mr Vincent conceded in cross­examination that the Structure Plan has little relevance because it has largely been superseded by the Design Guidelines (ts 127-128, 3 September 2020).

3. In Mr Vincent's opinion, a Liquor Store use is not materially different to a Fast Food Outlet use.  Mr Lenton, who was called as a planning expert by the MRA, partially agreed with Mr Vincent's opinion stating that the employment generation from a fast food outlet is significantly greater than a liquor store but that the two uses would have the same access to regional roads (ts 124, 3 September 2020). 

4. Mr Vincent also stated that, in his opinion, a liquor store will meet the day­to­day needs of local employees, for the purposes of the Precinct Intent, in a similar manner as a fast food outlet (witness statement of Mr Scott Vincent dated 7 August 2020 at para 9.8). 

5. The meaning of the phrase, 'day­to­day needs' was considered by the Tribunal in the decision of Project Development WA Pty Ltd and City of Bayswater [2010] WASAT 128 (Project Development) at [47]­[49].

   The Tribunal has formed the view that a liquor store with the added convenience of a drive through facility would serve the day-to-day shopping needs of the locality.  The proposed use would cater for passing trade on Guildford Road, which might be the majority of the trade, but there was no evidence in respect of this.  The Tribunal does not consider, however, that catering to passing trade is fatal to the proposal.

   The Tribunal does not consider that the test should be that the product sold is required to be a vital 'need' in the sense of a life-sustaining item, such as basic food, shelter and water, but rather, as stated in the TPS 13 definition, a 'day-to-day shopping need for many people'.  In serving the day-to-day needs, the Tribunal considers that this does not require purchase on a daily basis but, rather, to be a product that is used daily, or at least several times a week, by many people.  This would be in contrast to a purchase or service required regularly by a community but only rarely by an individual or family:  O'Connor and Town of Victoria Park [2005] WASAT 161 at [71] - [74].

   The objectors did not consider it was necessary for their day-to-day needs, but the Tribunal notes that the site is within a mostly residential area.  The Tribunal is of the view that, while not all locals would want a liquor store, a liquor store would serve those in the locality who wish to make regular use of it.  A radius of about 450 metres around the existing liquor stores would not cover significant areas of the residential locality in the vicinity of the site.

1. Project Development was considered in Universal Enterprises Pty Ltd and Town of Victoria Park [2013]WASAT62 (Universal Enterprises), where the Tribunal stated at [38]:

   Alcohol is not a necessity of life, but it is a necessary of day-to-day life for many in our society.  A liquor store of the type and scale proposed would, although not exclusively, serve the 'day-to-day' needs of the local residents.  The fact that trade is not restricted to the local community does not necessarily mean that the proposed development is inconsistent with the intent of the Local Centre zone and fatal to the application.  This approach is consistent with the decision of the Tribunal in Project Development where the Tribunal, at [47], found that catering to passing trade was not fatal to a proposal that served the 'day­to-day' shopping needs of a locality. The Tribunal therefore considers the proposed development to be consistent with the intent of the Local Centre zone.

2. Whilst Project Development and Universal Enterprises may provide some guidance on the meaning of the phrase 'day­to­day needs', the Tribunal observes that the cases were decided in the context of the day­to­day shopping needs of a locality which was mostly residential/urban in nature, and not the day­to­day needs of local employees of an industrial business park.

3. Mr Lenton, who was called as a planning expert by the MRA, expressed the following opinion in relation to the meaning of 'day­to­day needs of local employees' (ts 125, 3 September 2020):

   … I'm of the opinion that by identifying the people as employees, we're talking about their function as employees in the business park.  We're not talking about their function once they leave work and the general members of the public or residents of the local area.

   I don't think that a liquor store provides a service to meet the day-to-day needs of local employees.  I don't think it is an appropriate premise[s] in terms of it being incidental to the primary function of the site over the precinct as an industrial precinct.

4. Mr Vincent was asked in cross-examination whether he agreed that the predominant use of the Liquor Store by employees would be at the end of the workday, picking up alcohol on the way home.  Mr Vincent's response was as follows (ts 141, 3 September 2020):

   Yes, I think that's fair.  Yes.  Predominantly employees in the area would be – if they are purchasing alcohol from this facility, it would be probably for consumption somewhere else and not – probably not in their place of employment.

5. Mr Vincent acknowledged that the consumption of alcohol would not form part of breaks or lunch breaks of an employee during the day.  (ts 141, 3 September 2020)

6. The Tribunal accepts the evidence of Mr Lenton and finds that the 'day­to­day needs of local employees' refers to the needs of employees whilst performing their functions as employees during the normal course of their employment in Forrestdale Business Park East.  Based on the evidence before it, the Tribunal finds that the day­to­day needs of employees in Forrestdale Business Park East include services for the provision of food but not the provision of alcohol.

7. Evidence was led by the applicant in relation to the scope of cl 3.2.1 of the Design Guidelines which provides that 'non-industrial uses are not supported within the Project Area except where they are incidental to the primary industrial uses on a site'.  Mr Vincent stated that the proposed Liquor Store use could be incidental to the primary industrial use on site, being a showroom use (ts 145, 3 September 2020).  In the opinion of Mr Syme, which was consistent with that of Mr Lenton, the incidental use must provide services to employees in the course of their business day, such as lunch bars and fast food outlets (ts 120, 3 September 2020).  On the basis of the evidence before it, the Tribunal is not satisfied that the proposed Liquor Store use is incidental to any proposed primary industrial use on the subject land.

Consistency with the Design Guidelines as they relate to activity centres

1. Clause 3.2.1 of the Design Guidelines refers to the land use objective for the Precinct and provides, amongst other things, that uses located within the Precinct will not compete with or undermine the viability of established activity centres within the locality. 

2. The term 'Activity Centre' is not defined in the Design Guidelines but is explained in SPP 4.2 as follows:

   Activity centres are community focal points.  They include activities such as commercial, retail, higher density housing, entertainment, tourism, civil/community, higher education and medical services.  Activity centres vary in size and diversity and are designed to be well­serviced by public transport.

3. There is no dispute that the Challis Local Centre is an 'Activity Centre' that forms part of the locality for the purposes of cl 3.2.1 of the Design Guidelines.

4. The applicant contends that, like ARS2, the Design Guidelines do not impose a prohibition on approving a development application which may compete with or impact the viability of any other singular use within the locality.  The applicant contends that, properly understood, the Design Guidelines reveal a concern to ensure that the character of Forrestdale Business Park East does not, as a whole, compete with established activity centres or undermine their viability in a macro sense.

5. Mr McKnight, who was called by the applicant as a retail expert, relied on the Macroplan report in support of his position that there will be no unacceptable economic impacts on any existing or planned activity centres and that the change of use does not threaten the viability of any activity centre.  The projected impact of the proposed Liquor Store on the Challis Local Centre is estimated by the Macroplan report at 5.3%, which in Mr McKnight's opinion would not threaten the viability of that centre.  Mr McKnight explained that the accepted industry standard is that a retail impact of less than 10% is 'acceptable' and represents healthy competition that delivers a net benefit to the consumer.

6. Mr Syme, who was called by the MRA as a retail expert, accepted that the figure of 5.3% would not likely threaten the viability of the Challis Local Centre overall.  However, Mr Syme's opinion is that it is not a minor impact when applied to an out-of-centre development which is only 400m² in total and that 'the -5.3% impact' would be felt directly in the first instance by the Challis Bottlemart store (witness statement of Mr John Syme at para 41).  Mr Syme further observed that if the Challis Bottlemart store became unviable (or moved to a more attractive location), the flow-on of reduced traffic to the centre overall would impact on the other two stores (witness statement of Mr John Syme at para 42).  Mr Syme provided the following explanation in support of his position (witness statement of Mr John Syme at para 44):

   … Local activity centres distributed over a wide area constitute a large part of the residential amenity that is an objective of the Liveable Neighbourhoods policy that guides residential development in Western Australia.  Experience in the preparation of local government level Commercial Centres Strategies indicates that these are becoming more difficult to establish and sustain.  In many cases, even where they are planned they are not built.  Small local centres that might provide a coffee shop, delicatessen or a fish and chip shop general need an 'anchor' use that draws more traffic to them and thus supports their viability.  This might be an IGA store, a medical centre, or a child-care centre.  In the case of Challis the Bottlemart provides the anchor[.]

7. Mr Syme stated that, relying on the Macroplan report figure of 5.3% for the centre as a whole, he estimated that the reduction in the Challis Bottlemart store turnover could range from 8% to 12% depending on its total annual sales (ts 107, 3 September 2020).  Based on annual sales of $1.35M and a reduction in turnover of $150,000 per annum, Mr McKnight stated that the impact on sales of the Challis Bottlemart store would be 11.1%.  He said that the effects would last for one year before being ameliorated by year two and year three, with the Challis Local Centre trading 8.8% above what it was in 2019 by 2025/26 (ts 110, 3 September 2020).  Mr McKnight explained that the potential impact experienced by any activity centre by reason of the proposed Liquor Store would be absorbed quickly due to the strong growth of residents and workers in the area (witness statement of Mr Stuart McKnight at para 5.1(c)).  In contrast, it is Mr Syme's opinion that as a result of COVID­19 there could be a decrease in total population growth of 20% to 25% below that projected by the Western Australian Planning Commission WA Tomorrow (WAPC projections) across the Forrestdale/Harrisdale/Piara Waters statistical area attributable to a reduction in overseas migration (ts 67-8, 3 September 2020).

8. Mr McKnight maintained his position despite Mr Syme's suggested impact of COVID-19 on population growth, explaining that the latest advice from Federal Treasury is that overseas migration will return to normal from 1 January 2021 (ts 73, 3 September 2020).  Mr McKnight also explained that the statistics show in this particular area that overseas migration is a small proportion of population growth (ts 74, 3 September 2020).  The WAPC projections show overseas migration contributes 18% of total population growth in 2020-21 for the Forrestdale­Harrisdale-Piara Waters Statistical Area 2 based on 2016 figures (Joint report of Mr Syme and Mr McKnight at para 5).  Mr McKnight's opinion is that the WAPC projections overestimate the actual overseas migration in the area with ABS figures revealing total population growth in the area due to net overseas migration of 7.5% for 2017 to 2019 (ts 67, 3 September 2020).  In any event, Mr McKnight's opinion is that any negative impact by reason of slowed overseas migration as a result of COVID-19 would likely be over by the time the proposed Liquor Store is approved, constructed and opened (Joint report of Mr Syme and Mr McKnight at para 5).

9. The applicant objects to the opinion evidence of Mr Lenton that relates to the viability of activity centres within the locality and other matters that the applicant contends are not within Mr Lenton's expertise as a planner.  The Tribunal has considered the evidence of Mr McKnight and Mr Syme as retail experts and has not relied on the portions of Mr Lenton's evidence that are the subject of the applicant's objections.  The Tribunal finds, based on the evidence of Mr Syme, that the proposed Liquor Store will compete with and undermine the viability of the Challis Bottlemart store and, as a consequence, the viability of the Challis Local Centre which is an established activity centre for the purposes of the Design Guidelines.  The Tribunal accepts the evidence of Mr Syme that the WAPC projections could be 20% to 25% lower due to reduced overseas migration arising from the restrictions imposed by the Western Australian government response to COVID-19.  Accordingly, the Tribunal finds that the impact of the proposed Liquor Store on the Challis Local Centre would not be mitigated by population growth in the surrounding area as described by Mr McKnight.

Whether the proposed Liquor Store use will set an undesirable precedent

1. The applicant contends that ARS2 does not expressly prohibit any land use.  As referred to above, the applicant points to a number of factors which it considers are unique to the proposal and should be considered by the Tribunal in its determination of the merits of the development application.  One of the factors referred to by Mr Vincent in his evidence is that the subject land is a constrained site, specifically that the site is an irregular shape and configuration and has reduced capacity to accommodate large industrial premises (witness statement of Mr Vincent at para 12.2; ts165, 3 September 2020).

2. Mr McKnight is of the opinion that the proposed development should proceed because it is substituting one approved shop/retail land use category (the Fast Food Outlet) for another shop/retail use (the Liquor Store) (Joint witness statement of Mr Syme and Mr McKnight at para 22).  Mr McKnight also considers that packaged liquor stores are a special class of retail operating in a quite specific market segment (Joint witness statement of Mr Syme and Mr McKnight at para 20).  Mr Syme disagrees with Mr McKnight's opinion and considers that, for planning purposes, liquor stores are not a special class of retail because there is no recognised distinction between a liquor store and other classes of shop/retail activity (witness statement of Mr Syme at para 80).  In the opinion of Mr Syme, approval of a liquor store on an industrial estate would set an undesirable precedent or lead to a 'de facto Activity Centre' because it would be possible to argue that other retail uses, such as a stand-alone supermarket, should also be approved on the basis that there is no essential difference between the approved liquor store activity and a newly proposed retail activity (ts 120, 3 September 2020; witness statement of Mr John Syme at para 80).  Mr Syme considers that approval of the Liquor Store would undermine well established principles of industrial land use planning.

3. In Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149  LGERA 117 (Nicholls) the Tribunal, at [71]­[75], analysed a number of authorities relating to adverse planning precedent including Aspen Pty Ltd v State Planning Commission (unreported, Town Planning Appeals Tribunal of WA, Appeal No 13 of 1988, 21 October 1988) and Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170.

4. The Tribunal, in Nicholls, adopted the following criteria from Goldin & Anor v Minister for Transport (2002) 121 LGERA 101 as to the circumstances in which an undesirable precedent is a relevant consideration in a planning assessment. These are at [74]:

   (1)That the proposed development or subdivision is not in itself unobjectionable; and

   (2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.

5. The Tribunal accepts the evidence of Mr Syme and finds that there is more than a mere chance or possibility that there may be later applications for retail uses in the Precinct if the Liquor Store use is approved.  The Tribunal has considered the factors that the applicant contends are unique to the subject land but finds that they do not outweigh the undesirable precedent that could be set by approval of the proposed Liquor Store use.

Consideration of desired amenity of the Forrestdale redevelopment area

1. Under s 66(1)(e) of the MRA Act, the Tribunal must have regard to the desired amenity of the redevelopment area in which the development is proposed.

2. Mr Vincent is of the opinion that the locality relevant to the development application is the eastern peripheral area of Forrestdale Business Park East, specifically those properties fronting Ranford Road between Remisko Drive and Armadale Road.  He broadly characterised the existing character of locality as modern commercial precinct incorporating a range of business activities that rely on passing trade exposure (such as showroom, service station, fast food outlets, medical centre), which act as a buffer to more intense industrial activities further west.  Mr Vincent observed that the character of this locality is distinct from other parts of Forrestdale Business Park East further west, where industrial units, warehousing and fabrication activities have been developed, and a different streetscape is evident (witness statement of Mr Vincent at para 13.3).  Mr Vincent stated as follows (ts 157, 3 September 2020):

   It wouldn't be uncommon for people to, you know, park at the Bunnings, go get their things and then walk over to the McDonald's and – and grab themselves some food.  Or, likewise, if there was a liquor store there, walk across there and pick up their – their alcohol.  It is – it is – it has a very distinct character which is consistent with a liquor store land use, as – as distinguished from other parts of the business park, which do not have the same character and do not have the same level of infrastructure that supports movement of customers between different business premises.

3. In addition, Mr Vincent observed that the Forrestdale Vision in cl 3.3 of ARS2 which describes 'a major business and dynamic industrial hub' is broadly consistent with the existing character of the locality (witness statement of Mr Vincent at para 13.3).

4. Mr Lenton described the character of the locality as an industrial business park and observed that 'when you're looking from outside, it should not have the effect of looking into an activity centre' (ts 160, 3 September 2020).

5. The Tribunal accepts the evidence of Mr Lenton and finds that the character of the locality is light industrial and not retail in nature. Based on Mr Lenton's evidence, and for the purposes of determining the desired amenity of the Forrestdale redevelopment area under s 66(1)(e) of the MRA Act, the Tribunal finds that the relevant locality comprises the whole of the Precinct and is not limited to the properties of the Precinct fronting Ranford Road between Remisko Drive and Armadale Road.

6. The applicant contends that the proposed Liquor Store use is consistent with or beneficial to the desired amenity of the locality.  Mr McKnight defined 'amenity for employees' as access to a variety of uses and activities while optimising internal and external amenity for occupants, visitors and neighbours.  By changing the use from Fast Food Outlet to Liquor Store, Mr McKnight considers that the proposal delivers variety to workers as opposed to providing another take-away food outlet (Joint witness statement of Mr Syme and Mr McKnight at para 15).

7. Mr Syme considered that 'amenity' is the provision of ancillary and supporting retail activities solely or primarily to provide local convenience to support the main operations of the industrial estate.  In the opinion of Mr Syme (joint witness statement of Mr Syme and Mr McKnight at para 19):

   [L]unch bars fit this category, avoiding the need for workers to leave the estate in the course of their working day to get lunch.  In this context fast food outlets provide a similar convenience and amenity to lunch bars and for this reason are often approved for industrial estates, including Forrestdale. …  [L]iquor stores are materially different from fast food outlets, lunch bars and cafes.  They do not provide day-to-day convenience for workers in industrial estates in the course of the day­to­day working life, ie while undertaking the primary economic activity of an industrial estate.  They do not provide goods or services intended to be consumed during a normal working day and are thus no more convenient than any other class of retail for general goods.

8. The applicant contends that because the MRA considered the approved fast food outlet was consistent with the existing and intended amenity of the locality, a small format liquor store with the same built form would have the same amenity benefit. The Tribunal does not accept this contention. The Tribunal prefers the evidence of Mr Syme to that of Mr McKnight and Mr Vincent and finds that the desired amenity of Forrestdale Business Park East includes access to services or conveniences that employees use in the course of their day­to­day working life, which include lunch bars and fast food outlets. Based on the evidence before it, the Tribunal finds that convenient access to liquor is inconsistent with the industrial nature of the locality as reflected in the Forrestdale Vision and Precinct Intent because it will not support the day­to-day needs of employees. Accordingly, the Tribunal finds that the proposed Liquor Store use will not contribute to the desired amenity of the locality and, therefore, the redevelopment area for the purposes of s 66(1)(e) of the MRA Act.

Conclusion

1. Clause 6.7(2) of ARS2 confers discretion on the Tribunal to approve a use that is neither preferred nor contemplated having regard to the suitability of the use in its proposed location, including its consistency with the Forrestdale Vision, the Precinct Intent and its compatibility with surrounding land uses.

2. Having regard to the matters listed in s 66(1) of the MRA Act and cl 5.18 of ARS2, the Tribunal concludes that the application for a change of use from 'Fast Food Outlet' to 'Liquor Store' should be refused because the proposed use:

   1)is inconsistent with the Forrestdale Vision and the Precinct Intent in that the 'day­to­day needs of local employees' in Forrestdale Business Park East do not include services or conveniences relating to the provision of alcohol;

   2)is inconsistent with the Design Guidelines because it will compete with and undermine the viability of the Challis Bottlemart store and, as a consequence, the viability of the Challis Local Centre which is an established activity centre;

   3)if approved, would set an undesirable precedent for other retail uses in the Precinct; and

   4)does not form part of the desired amenity of the Precinct.

3. The applicant contends that Amendment 107 is irrelevant to the Tribunal's determination because of the operation of s 34 of the MRA Act and, therefore, the development application must be decided in accordance with ARS2. On the face of it, s 34 of the MRA Act applies to land when it is removed from a redevelopment area and, therefore, the provision cannot inform the manner in which the development application for the proposed Liquor Store use is to be decided. However, in light of the Tribunal's findings in respect of the merits of the application as assessed under ARS2, it is unnecessary for the Tribunal to consider the effect of s 34 of the MRA Act or afford any weight to Amendment 107. It is also unnecessary for the Tribunal to consider whether s 64(2), s 66(1)(c), and s 66(1)(d) of the MRA Act should be read subject to the operation of s 34 of the MRA Act.

4. The Tribunal is not persuaded by the applicant's contention that the City's planning policies (which may be applicable to the subject land once removed from the redevelopment area) are irrelevant to the exercise of the Tribunal's discretion having regard to the principles of orderly and proper planning espoused by Pritchard J in Marshall. Nevertheless, in the circumstances of this case, the Tribunal has not afforded any weight to those policies in arriving at its decision under the MRA Act and ARS2 to refuse the application for a change of use.

5. Based on the evidence before it, the correct and preferable decision is for the Tribunal to refuse to issue approval, under s 69(1) of the MRA Act, for the proposed change of use from 'Fast Food Outlet' to 'Liquor Store'. Accordingly, the Tribunal will affirm the MRA's decision.

Orders

The Tribunal orders:

1.The application is dismissed.

2.The respondent's decision made on 16 December 2019 to refuse development application MRA-11018 for Change of Use from Fast Food Outlet to Liquor Store is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS C BARTON, MEMBER

3 DECEMBER 2020

ANNEXURE A

The Planning Framework

Metropolitan Redevelopment Authority Act 2011 (WA)

1. Regulations may declare redevelopment areas and provide for related matters

2. Regulations may declare land that is ­

   (a)in the metropolitan region; and

   (b)described in the regulations,       

   to be a redevelopment area.

3. Regulations cannot be made under subsection (1) in respect of land that is the subject of an improvement scheme.

4. Land may be described under subsection (1)(b) by a land description or by reference to a plan held by the Authority, or both.

5. Under subsection (1) ­

   (a)one or more separate redevelopment areas may be declared; and

   (b)more than one parcel of land may be declared to be a single redevelopment area; and

   (c)if more than one parcel is so declared, the parcels need not be contiguous.

6. The regulations must ­

   (a)give each redevelopment area a name for the purposes of this Act; and

   (b)if the redevelopment area is described in the regulations by reference to a plan held by the Authority, include for guidance a plan depicting the redevelopment area; and

   (c)prescribe the objectives of the redevelopment area, being matters that ­

   (i)are of importance to the planning and development of the redevelopment area; and

   (ii)must be taken into account in the preparation and approval of a redevelopment scheme for the area and the approval of development in the area.

7. When regulations made under this section are laid before a House of Parliament under the Interpretation Act 1984 section 42, they must be accompanied by ­

   (a)an explanatory statement setting out the reasons for declaring the redevelopment area; and

   (b)a plan depicting the redevelopment area.

8. Development applications not finalised when land removed

9. If, when land is removed from a redevelopment area by regulations made under section 31(1)(b), a development application for the land ­

   (a)has not been decided; or

   (b)having been so decided, is the subject of an application to the State Administrative Tribunal for a review that has not been finalised,

   the development application or review must be decided in accordance with this Act and the approved redevelopment scheme that applied at the time the application was made.

10. For the purposes of subsection (1), this Act continues to apply, and the Authority or Planning Minister must continue to perform their functions, in relation to the development application and any application for review as if the approved redevelopment scheme were still in operation in relation to the land.

11. Notice of development application

12. After assessing a development application under section 63, the Authority ­

    (a)must give written notice of the particulars of the application, its determination under section 63 and of the effect of section 65(1), to ­

    (i)the local government of the district in which the proposed development will be carried out; and

    (ii)each local government and public authority prescribed by the regulations as a local government or public authority that must be notified of the development application; and

    (iii)any other public authority that appears to the Authority to have functions relevant to, or whose operations appear to the Authority to be likely to be affected by, the proposed development;

    and

    (b)may give written notice of the particulars of the application, its determination under section 63 and of the effect of section 65(1) to any other person it thinks fit.

13. A person notified under subsection (1) may give the Authority a written submission about the proposed development.

14. Deciding development application

15. In considering a development application, the Authority must have regard to the following ­

    (a)the approved redevelopment scheme that applies to the land on which the development is proposed;

    (b)the objectives for the redevelopment area in which the development is proposed that are prescribed under section 30(5)(c);

    (c)any submission received from a person notified under section 64;

    (d)the requirements of orderly and proper planning;

    (e)the desired amenity of the redevelopment area in which the development is proposed.

16. After considering a development application, the Authority may ­

    (a)refuse to issue a development approval for the proposed development; or

    (b)issue a development approval for the proposed development.

17. If the Authority approves a development application, it must decide the period within which any development approved must be substantially commenced.

18. A development approval may be issued subject to any condition decided by the Authority.

19. Without limiting subsection (4), the Authority ­

    (a)may impose a condition that states that the development approved is approved temporarily for a period specified in the condition and must cease or be demolished when the period ends; and

    (b)may impose a condition that states that the development approved cannot be commenced, continued or carried out until an act or event specified in the condition has occurred.

20. The Authority must give written notice of any decision under this section to the applicant and each person notified under section 64(1).

21. Subject to section 67 and any condition limiting the time for which it remains in force, a development approval for land remains in force even if the land ceases to be in a redevelopment area.

22. Review of Authority's decision by SAT

23. An applicant for a development approval may apply to the State Administrative Tribunal for a review, in accordance with the PAD Act Part 14, of a decision of the Authority taken to have been made under section 65(2) or made under section 66 in respect of the applicant's application.

24. For the purposes of the PAD Act Part 14, an approved redevelopment scheme is taken to be a planning scheme within the meaning of that Act.

Metropolitan Redevelopment Authority Regulations 2011 (WA)

1. Armadale redevelopment area

2. In this regulation ­

   relevant plan means the plan entitled “Armadale redevelopment area 2019” held at the office of the Authority, that plan being certified by the Minister as the plan prepared for the purpose of defining the Armadale redevelopment area.

3. All of the land in the area outlined in bold on the relevant plan is declared to be a redevelopment area.

4. The name of the redevelopment area is the Armadale redevelopment area.

5. For guidance, a plan depicting the Armadale redevelopment area is set out in Schedule 1.

6. Redevelopment area objectives: s. 30(5)(c)

   The objectives of each redevelopment area are as follows ­

   (a)to build a sense of place by supporting high-quality urban design, heritage protection, public art and cultural activities that respond to Perth’s environment, climate and lifestyle;

   (b)to promote economic wellbeing by supporting, where appropriate, development that facilitates investment and provides opportunity for local businesses and emerging industries to satisfy market demand;

   (c) to promote urban efficiency through infrastructure and buildings, the mix of land use and facilitating a critical mass of population and employment;

   (d)to enhance connectivity and reduce the need to travel by supporting development aimed at well-designed places that support walking, cycling and public transit;

   (e)to promote social inclusion by encouraging, where appropriate, a diverse range of housing and by supporting community infrastructure and activities and opportunities for visitors and residents to socialise; (f) to enhance environmental integrity by encouraging ecologically sustainable design, resource efficiency, recycling, renewable energy and protection of the local ecology.

Schedule 1 ­ Armadale redevelopment area

Armadale Redevelopment Scheme 2

2.1     THE VISION

The Authority's Vision for the Armadale Redevelopment Area is -

To give a new life to the area, create new communities and facilities, introduce more housing options, forge stronger connections with the surrounding areas and to strengthen Armadale's role as a strategic centre with a strong focus on sustainability. New business and industrial opportunities combined with new housing will give people the chance to live, work and play within the Scheme Area.

2.3     SCHEME OBJECTIVES

The Scheme Objectives listed and described in this chapter must be taken into account in the preparation and approval of the planning framework for the Scheme Area and the assessment and determination of all applications for approval made under the Scheme. These Scheme Objectives are:

Sense of Place;

Economic Wellbeing;

Urban Efficiency;

Connectivity;

Social Inclusion; and

Environmental Integrity

Development in accordance with the Scheme Objectives will ensure the Scheme Area develops in a sustainable manner which will enrich Armadale's role as a premier destination for people to live, work, visit and recreate within a vibrant, mixed use setting.

All development proposals will be required to be consistent with the Scheme Objectives set out in this Chapter (clauses 2.3.1-2.3.6).  The Authority is to have due regard to these Objectives in discretionary decision making regarding the Scheme, including the assessment of:

Development Applications;

In-Principle Applications;

Structure Plan or Activity Centre Plan Applications;

Local Development Plan Applications; and

Subdivision Proposals

3.3     FORRESTDALE VISION

Forrestdale is identified as an industrial centre in the Western Australian Planning Commission's Economic and Employment Lands Strategy: non-heavy industrial, Perth metropolitan and Peel regions (EELS).  Forrestdale will be developed progressively to cater for a range of manufacturing, processing, warehousing and bulky goods handling activities. The Forrestdale Project Area will develop as a dynamic industrial hub and create an important employment zone to support Armadale's population growth.  As a major business and industrial hub, the project area will include coordinated, consistent, and high-quality design, landscaping and standards of presentation.  The Forrestdale Project Area will generate local jobs and provide a highly credible business address for new industries and a diversity of enterprises, performing both on a functional and an aesthetic level with a defined identity and sense of place, and in harmony with its local environmental context.

3.3.1    Forrestdale – Precinct Statements of Intent

Precincts 7 and 7A - Forrestdale Business Park East

The precincts have high exposure and access to the existing and proposed regional road network and will be a focus of new economic activity and employment for the region. The precincts will support a range of different scales of business activity, from smaller start-up businesses to larger scale uses that will meet the day to day needs of local employees without competing with strategic retail centres within the Armadale or Kelmscott town centres.

The siting of industrial uses shall have regard to existing and future neighbouring residential development and environmental sensitive areas. More intrusive industrial land uses shall be located on the north-western portion of the precinct to minimise any adverse impacts on other land uses and operate without impacting on the drainage basin and Conservation Category Wetland located immediately to the south. Less intense industrial land uses shall be located along the major boundary roads of Armadale Road and Ranford Road and the major internal spine road, to maximise exposure to passing trade.

See ANNEXURE B

4.7DEVELOPMENT TO COMPLY WITH POLICIES AND DESIGN GUIDELINES

1. All development within the Scheme Area is to generally comply with the Policies and Design Guidelines that are relevant to the nature and location of the proposed development.  The provisions of relevant Policies and Design Guidelines will form the basis of the assessment of development proposals, in addition to the provisions of the Scheme.

4.8DUE REGARD FOR POLICIES AND DESIGN GUIDELINES IN DECISION MAKING

1. Subject to the provisions of Chapter 5, a Policy or Design Guideline shall not bind the Authority in respect of any Application for Approval to Undertake Development or Application for Subdivision, however the Authority shall have due regard to the provisions of relevant Policies and Design Guidelines and the objectives or outcomes which the Policy or Design Guideline was designed to achieve.

5.18KEY MATTERS FOR CONSIDERATION IN DETERMINATION

1. In the determination of any application made under the Scheme the Authority shall have due regard for:

   (a)the Scheme Vision and Objectives and the achievement of sustainable development;

   (b)      clause 9.2, and all other relevant provisions of the Scheme;

   (c)any currently valid decision on an In-Principle Development Application, Structure Plan Application or a Local Development Plan Application;

   (d)any relevant planning document adopted under the Scheme, including but not limited to a Design Guideline, Policy, Heritage Inventory, or Development Contribution Plan;

   (e)a strategic master plan approved by the Authority for the relevant project or locality;

   (f)an environmental or water management plan for the relevant project or locality;

   (g)any submission received as a result of a referral to government bodies or public consultation, in accordance with clauses 5.14 and 5.15;

   (h)       any specialised advice obtained under clause 5.16;

   (i)       the requirements of orderly and proper planning; and

   (j)       the current and intended amenity of the locality.

6.7     USES NOT PREFERRED OR CONTEMPLATED

Where a use is a defined use in Table 6.1 but is not included in a category that is shown in Table 6.2 as a Preferred or Contemplated use for a relevant precinct, the use or uses are generally considered to be inconsistent with the precinct intent and may be inappropriate for that precinct.  However those uses may be considered for approval.

1. In dealing with a Development Application for a defined use that is not Preferred or Contemplated the Authority will:

   (a)require written justification from the applicant detailing the suitability of the use in that location, including its consistency with the Scheme Area Vision and Precinct Intent and its compatibility with surrounding land uses;

   (b)seek specialised advice on the application, or require the applicant to obtain specialised advice (at the applicant's expense) on aspects of the proposal;

   (c)      advertise the application for public comment; and/or

   (d)require the incorporation of a Preferred Use or Contemplated Use into the development instead of or as well as the proposed use.

2. The Authority may approve or refuse an application involving a use that is not Contemplated or Preferred, or approve the application subject to conditions. Conditions of approval may include, but are not limited to, any condition the Authority considers appropriate to manage the suitability or compatibility of that use in its location

6.13     RETAIL LAND USES

Retail development is an important activity throughout the Scheme Area, both in supporting the role of the activity centres as a prime retail destination, and in providing convenient goods and services to local residents.

1. In determining a Development Application for a land use within the Retail land use category, in addition to the other provisions of the Scheme, the Authority shall have regard to the following objectives:

   (a)      encouraging a diversity of retail services and premises in appropriate locations;

   (b)      ensuring an active ground floor interface with the public realm; and

   (c)      focusing retail development in the activity centres.

Forrestdale Project Area Design Guidelines

1.1     THE PURPOSE OF THE DOCUMENT

The Forrestdale Project Area Design Guidelines (the Design Guidelines) are intended to guide development within the Forrestdale Project Area (the Project Area) in accordance with the vision and objectives of the Armadale Redevelopment Scheme 2 (Scheme 2).

The Design Guidelines require subdivision and development proposals within the Project Area to deliver high quality design outcomes, while complementing the region's environmental and cultural assets to facilitate the desired vision for each of the Project Area's four Precincts.

The Design Guidelines establish design objectives and development standards for subdivision and built form within the Project Area.  In addition, the Design Guidelines provide a comprehensive basis for the control of development and subdivision in the Project Area.

1.7     THE FORRESTDALE PROJECT AREA VISION

The Authority's vision for the redevelopment of the Project Area is to establish an industrial centre to cater for a range of manufacturing, processing, warehouse and bulky goods handling activities.

1.7.1    PRECINCT 7 – FORRESTDALE BUSINESS PARK EAST LIGHT INDUSTRY

Precinct 7 – Forrestdale Business Park East Light Industry has high exposure and access to the existing and proposed regional road network and will be the focus of new economic activity and employment in the region.  The location of land uses will have regard to existing and future neighbouring residential development and environmentally sensitive areas.  The land uses will not adversely impact the safety and visual amenity of existing residential development. Non­production based land uses of a service nature will be provided along the boundary roads, acting as a buffer between more intense industrial land uses and adjacent residential development while ensuring uses do not compete with or undermine the viability of established Activity Centres within the locality. Integrated landscaping and street tree planting will be utilised to soften the streetscape and assist with the seamless transition between industrial development and the neighbouring residential areas.

3.2.1    LIGHT INDUSTRY PRECINCTS

Objective

Light Industry will accommodate less intensive industrial land uses developed along major roads and primary entry points enabling greater exposure to passing trade and providing a buffer between the Industry Precinct and neighbouring residential development and environmentally sensitive areas.  Uses located within Light Industry Precincts will not compete with or undermine the viability of established Activity Centres within the locality. Nonindustrial uses are not supported within the Project Area except where they are incidental to the primary industrial use on a site.

In this regard, development shall comply with the land use precincts identified in the Forrestdale Project Area Land Use Map (refer to Appendix 1).  Consistent with clause 6.4(3) of the Scheme 2, where there is any inconsistency with the land use map included in the Design Guidelines and the Scheme 2 and by extension, the approved Forrestdale Business Park East Structure Plan or Forrestdale Business Park West Structure Plan, the Design Guidelines will prevail.

Forrestdale Business Park Structure Plan

Highway Commercial

Preferred Highway Commercial Uses shall be sited to allow for more commercial uses to develop around the Armadale Road entrance to the Business Park.  These commercial uses should support the Business Park (by virtue of the service or product on offer), require the high exposure and access afforded by the location, and most importantly be of high aesthetic quality, appropriate to the 'face' of the Business Park.

Uses may include offices, medical centre, postal distribution centre (with retail shop front), or a trade centre, as an example.  A high degree of discretion should be available to the ARA in considering uses within this location, provided a proposal is deemed to satisfy the zoning objectives.

ANNEXURE B