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:

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;
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.
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
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WASAT 150
Decision Date: 3 DECEMBER 2020

CaseChat Overview and Summary

In the case of Realcom Group Pty Ltd and Metropolitan Redevelopment Authority, the applicant sought a review of the MRA's decision to refuse development application MRA-11018 for a change of use from light industry to a liquor store within the Forrestdale Business Park East precinct. The MRA had rejected the application on the basis that the proposed use was inconsistent with the redevelopment area objectives and would introduce a non-industrial land use that would compete with established activity centres within the locality. The applicant argued that the MRA had failed to consider the desired amenity of the redevelopment area and that the potential outcomes presented by Amendment 107, which aimed to include Forrestdale Business Park East into the TPS 4 boundary, were irrelevant to the assessment of the proposal.

The court was required to decide whether the MRA's decision was consistent with orderly and proper planning, and whether the proposed liquor store use was consistent with the Forrestdale Vision, Precinct Statements of Intent, and Land Use objectives. The court also needed to determine whether the MRA had failed to pay regard to the desired amenity of the redevelopment area, and whether the consideration of Amendment 107 was relevant to the assessment of the proposal.

The court found that the MRA's decision was consistent with orderly and proper planning, and that the proposed liquor store use was inconsistent with the redevelopment area objectives. The court held that the proposed use was neither a 'Preferred' nor 'Contemplated' use under ARS2, and that it would compete with, or undermine the viability of, the established activity centres in the locality. The court also found that the MRA had not failed to pay regard to the desired amenity of the redevelopment area, and that the consideration of Amendment 107 was relevant to the assessment of the proposal.

The application, the subject of the review, should be refused and the MRA's decision affirmed. The Tribunal found that the applicant had not demonstrated that the proposed use would meet the day-to-day needs of local employees, or that it would not set an undesirable precedent for approval of liquor stores or other 'Retail' category uses within the Precinct or Forrestdale Business Park generally. The Tribunal also found that the proposed use was inconsistent with the Forrestdale Project Area Vision and Land Use objectives, and that it would have a detrimental impact on established retail/activity centres within the locality.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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) 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). 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 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; andd)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; andf)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.

Ratio Decidendi

Legal Principle Established

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