Rennet Pty Ltd and City of Joondalup - [2006] WASAT 289

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: RENNET PTY LTD and CITY OF JOONDALUP [2006] WASAT 289

MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)

HEARD: 24 JULY 2006

DELIVERED : 22 SEPTEMBER 2006

FILE NO/S: DR 147 of 2006
DR 138 of 2006

BETWEEN: RENNET PTY LTD
Applicant
AND
CITY OF JOONDALUP
Respondent

Catchwords:

Town planning Development approval Notice to cease use by reason of noncompliance with conditions of approval Conditions relating to parking bays Whether compliance with conditions Whether discretion should be exercised Whether noncompliance significant

Strata titles Certificate of compliance with building plans Whether building is consistent with building plans Whether departure from plans material Nature of considerations as to amenity of neighbourhood Relationship between considerations as to amenity for purposes of certificate and prior planning approval

Legislation:

City of Joondalup District Planning Scheme 2, cl 4.5, cl 4.8
Planning and Development Act 2005 (WA), s 214, s 214(2)
State Administrative Tribunal Act 2005 (WA), s 29(1)
Strata Titles Act 1985 (WA), s 5(b)(2), s 23, s 23(1), s 23(1)(a), s 23(2), s 23(2)(b), s 23(2)(c)

Strata Titles General Regulations 1996

Result:

Final orders deferred pending steps being taken by applicant to remedy noncompliance

Category: B

Representation:

Counsel:

Applicant: Mr CG Colvin SC and Mr MJ Hardy
Respondent: Mr DR Williams QC and Mr CA Slarke

Solicitors:

Applicant: Hardy Bowen
Respondent: McLeods

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

Nil

Case(s) also cited:

Austcorp No 459 Pty Ltd v Baulkham Hills Shire Council [2002] NSWLEC 90
Brown Falconer Group Pty Ltd v City of Mt Gambier & Ors [1998] SAERDC No 1155 of 1998
City of Subiaco v Busen Pty Ltd [2005] WASC 230
Ervin Mahrer & Partners v Strathfield Municipal Council (2001) 115 LGERA 259

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

Rennet Pty Ltd is the owner of the Mullaloo Tavern development at 10 Oceanside Promenade, Mullaloo. In addition to the tavern, the development comprises some commercial units, and on the upper level a number of permanent and short stay residential units. Development approval was initially granted in September 2002 but there were subsequent changes to the building resulting in the reduction of the number of residential apartments from the 15 initially proposed to the 12 ultimately constructed.
One of the major issues in relation to the planning approval was a concession in relation to the requirements for parking bays. Since the building has been completed, there have been concerns expressed by the City of Joondalup in relation to compliance with conditions of approval relating to parking bays. The tavern has been in operation since late 2005, but the residential apartments were more recently completed.
In June 2005, the Western Australian Planning Commission endorsed a plan of strata subdivision subject to certification from the local authority concerning the compliance by the building with the approved building plans. The City of Joondalup declined to sign the necessary certificate, and around the same time it issued a notice under the Planning and Development Act 2005 (WA) requiring Rennet Pty Ltd to cease using the premises as a tavern because of non‑compliance with the development approval conditions relating to parking. Rennet Pty Ltd applied to the State Administrative Tribunal to set aside the direction under the Planning and Development Act 2005, and for a review of the City's decision to refuse to sign the certificate under the Strata Titles Act 1985 (WA).
The Tribunal heard evidence in relation to the parking layout as constructed, and as it might be constructed with different line markings. It concluded that the present layout of the parking significantly failed to comply with the planning approval conditions, but that, re‑marked as was suggested by a traffic engineer, the degree of non‑compliance would not be significant. However, if re‑marked as suggested, the bays would not accord with the parking bays as set out in the proposed strata plan. The Tribunal determined that, in the circumstances, the appropriate course was to defer making final orders until the applicant had the opportunity to re‑mark the bays as proposed, and take such steps as might be necessary to ensure that the strata plan accords with the parking bays as constructed.

The proceedings

There are two applications for determination in these proceedings. Matter DR 138 of 2006 is an application to set aside a direction issued by the respondent to the applicant pursuant to s 214(2) of the Planning and Development Act 2005 (WA) (PD Act). The direction requires that the applicant cease to use part of a building on land located on 10 Oceanside Promenade, Mullaloo as a hotel/tavern by reason of an alleged contravention of conditions of a development approval dated 25 September 2002 (the development approval).
The other proceedings, matter DR 147 of 2006, arise from an application for a review and reversal of the decision of the respondent to refuse to sign a certificate pursuant to s 23 of the Strata Titles Act 1985 (WA) (ST Act) with respect to the development at 10 Oceanside Promenade, Mullaloo. The refusal by the respondent to sign the certificate is based upon the respondent's contention that the development does not accord with the planning approval or its conditions.

Background

On 25 September 2002, the respondent advised the applicant's architects that conditional approval to develop the land at 10 Oceanside Promenade, Mullaloo, in accordance with an application received on 20December 2001, was granted. The development was for the construction of a building with a mixed use of tavern, shop, residential buildings (serviced apartments), multiple dwellings, bottle shop, restaurant and office.
The development approval plans showed the ground floor as comprising an office, retail space, restaurant and convenience store/bottle shop together with various service areas. The first floor plan provided for a tavern and related service areas. The second floor plan provided for ten short stay accommodation units. Of those, five were single storey units and five were the first storey of two storey units. The third floor plan provided for the second storeys of the five two‑storey short stay accommodation units, and the first floor of five permanent residential units. The fourth floor plan comprised the upper storey of the five two‑storey permanent residential units.
The development approval, which was communicated to the applicant's architects by letter dated 25 September 2002, was expressed to be subject to 19 conditions. Three of those are relevant to the present proceedings. They are conditions 1, 2 and 19 being:
"1.the parking bay/s, driveway/s and points of ingress and egress to be designed in accordance with the Australian Standard for Offstreet Carparking (AS2890). Such areas are to be constructed, drained, marked and thereafter maintained to the satisfaction of the City prior to the development first being occupied. These works are to be done as part of the building programme;
2.carparking bays are to be 5.4 metres long and a minimum of 2.5 metres wide. End bays are to be 2.8 metres wide and end bays in a blind aisle are to be 3.5 metres wide;
19.the height of the building being reduced by the deletion of the uppermost level shown on the application drawings dated 17 May 2002, with 5 short stay apartments being deleted to achieve this modification."
The plans the subject of the development approval (development approval plans) showed 121 parking bays distributed over the basement, ground floor, first and second floors. The parking on the second floor was shown as "resident and staff parking" and the first floor plan showed a notation ‑ "ramp to and from residential access controlled by cable gate or similar". Thirty one parking bays were shown on the second level, apparently reserved for resident and staff parking.
In addition to the 121 parking bays provided on site, there was provision for five "drive through bays", allocated to the bottle shop, making a total of 126 on site bays. In addition, the previous owners of the old tavern, which was constructed on the site prior to the redevelopment, had some time earlier paid for and constructed a further 34 bays on the opposite side of Oceanside Promenade. That contribution to parking was recognised in the calculation of the overall total parking provision of the proposed development so that the total number of car bays provided was 160. That compared with the parking requirements of the applicable town planning scheme, the City of Joondalup District Planning Scheme 2 (DPS 2) which required a total of 210 bays.
The applicant's application for development approval was accompanied by a parking demand analysis carried out by Sinclair Knight Mertz which demonstrated that the availability of bays for different uses within the development (which had different peak demand times) would result in there being sufficient parking at all times with the exception of Saturday and Sunday evenings. The report contended however that, at those times of peak demand, demand for beach parking would be lower, and therefore visitors to the development would be able to utilise the public car park opposite the development, and the public car park a little to the north west of the site, to meet the shortfall of on site parking. It was on the basis of that parking assessment, which was accepted by the officers of the respondent, that the respondent's council, in approving the proposed developments, resolved to exercise its discretion pursuant to clauses 4.5 and 4.8 of DPS 2 to vary the scheme requirement in relation to parking from 210 bays to 160 bays (which clearly included the 34 off site bays).
Condition 19 of the approval required a reduction in the height of the building by deletion of the uppermost level, with five short stay apartments being deleted to achieve that modification. That condition was the subject of an appeal to the Town Planning Appeal Tribunal, which was ultimately resolved by consent, resulting in an amendment to the design of the building with nine short stay apartments being approved in lieu of the original ten. Plans depicting the redesign (the TPAT plans) show that nine short stay apartments were proposed, comprising five on the second floor, and four on the third floor. Two "permanent residential" apartments were depicted on the second floor and three on the third floor. All units were single storey, but the internal configuration of the units was not depicted. Rather the TPAT plans merely showed an outline of the outer walls of each apartment overlaid over the development approval plans. The fourth floor was shown as "deleted". The TPAT plans related only to the variations to the approved plans on the second, third and fourth floors.
In December 2003, a building licence was issued by the City of Joondalup in relation to the proposed development. The conditions of the building licence required that "this approval is subject to compliance with the conditions as set out in the approval to commence development". According to Mr Victor Etherington, the respondent's building surveyor who dealt with the building licence application, the application and accompanying plans (the 2003 building plans) were, as is usual, referred to the planning department for review prior to the issue of the building licence.
The 2003 building plans differed in several respects from the development approval plans. There was a variation to the layout of the basement car park access ramp, and the introduction of lifts and an additional stair in the basement where parking spaces had previously been located. At the ground floor level, the restaurant was increased in size at the expense of the retail and office spaces adjacent to it. The second floor showed seven residential units as depicted on the TPAT plans. Consistent with the TPAT plans, the third floor plan showed a further seven units, and there was no fourth floor.
For reasons which were not fully explored in evidence, an application for an amended building licence was made by the applicant in October 2004. It is apparent that construction was, by that time, underway, although how far it had progressed is not clear. Amended plans were approved by the respondent on 17 November 2004 (the 2004 building plans). The approval specified that the conditions and requirements endorsed on the original building licence remained applicable, and the applicant's attention was drawn to the conditions of the development approval of 23 September 2002. The 2004 building plans bore a handwritten endorsement "all car bays must comply with planning approval (DA01/0656)". The plans were also endorsed "refer to planning approval for development conditions. This approval does not constitute a planning approval". The plans showed some further modification to the service areas in the basement, a variation to the bottle shop component of the ground floor, six residential units on the second floor, and a further six residential units on the third floor. The 2004 building plans depicted 121 car bays (in addition to the five spaces available in the drive through area).
The building is now constructed. In October 2005, the tavern commenced operation. The other components of the building were not then ready for occupation. It is apparent that, throughout the period of construction, a number of issues had arisen in relation to the compliance of the development with the car parking requirements specified in conditions 1 and 2 of the development approval.
On 21 June 2005, the Western Australian Planning Commission resolved that it was prepared to endorse a plan of strata subdivision in relation to the development, subject to a condition requiring certification from the respondent that the whole building has been completed and is in accordance with the construction plans and specifications to which the building licence relates. On 1 February 2006, GHD Surveys applied to the respondent on behalf of the applicant for endorsement by the City of a certificate in accordance with form 7 of the Strata Titles General Regulations 1996 (WA) and copies of the strata plan. The City's refusal to sign that certificate was conveyed to the applicant's solicitors by the defendant's solicitors on 11 April 2006. That letter advised that the principal reason for the refusal was that, instead of the required 126 on site bays, only 86 had been provided. On that basis, the City concluded that it was not satisfied that the proposed subdivision would not interfere with the existing or likely future amenity of the neighbourhood having regard to the circumstances of the case and of the public interest, and it thereby declined to sign the certificate.
The following day, the respondent issued the stop direction under s 214 of the PD Act requiring the applicant to cease using the premises as a tavern.

The building as presently constructed

The building has been constructed substantially in accordance with the 2004 building plans. That is, it has 12 residential apartments on the second and third floors, each of them single storey. In that respect, the development differs from the TPAT plans which allowed for 14 single storey units spread over those two floors.
With respect to parking, traffic engineers instructed by each of the parties agree that, at present, there is a total of 119 bays marked on site, in addition to the five parking spaces available in the drive through area. Of those, the experts agreed that 87 bays comply with the requirements of AS 2890.1‑1993 as required by condition 1 of the development approval. It was also agreed that 87 of the 119 bays provided meet the requirements of condition 2 of the development approval. Eighty four bays meet both condition 1 and condition 2. It follows that, as presently marked, 32 bays do not meet either condition 1 or condition 2, and there is a shortfall of two bays between the number provided and the 121 bays depicted on either the development approval plans or the 2004 building plans. Because of the differences in design of the building as shown on the development approval plans from the building as shown on the 2004 building plans, the number of bays on each level differs between the two. The assessment carried out by the applicant's traffic engineer, Ms Claire Smith, the contents of which were agreed by the respondent's expert, Ms Louise Round, suggests that the number of bays on each level is roughly in accordance with the number on each level depicted in the 2004 building plans, save that the overall shortfall as constructed is two bays.
A major problem in achieving compliance with AS2890.1, and the dimensions required by condition 2 of the development approval, is the size and location of support pillars at each level of the construction. Ms Smith prepared an analysis of the parking areas as constructed against the requirements of AS2890.1, with the view to ascertaining how many bays could be made compliant with the Australian Standard if the bays were re‑marked. She concluded that, by a process of re‑marking the lines in the manner identified in appendix 2 to her report of 13 July 2006, a total of 119 bays could meet the requirements of AS2890.1, with 97 bays achieving compliance with condition 2 of the development approval. In addition, the parking layout would provide for two turning bays (in positions required by AS2890.1) which had not been depicted on the building licence plans. The basis upon which Ms Smith contended that 119 bays could be made capable of complying with AS2890.1, and thus with condition 1, was that a total of 59 bays would be designated as small car bays. Small car bays are allowed under the terms of the Australian Standard, but the standard gives no indication as to the number of small car bays which are acceptable as a proportion of the total bays provided.
Ms Smith also carried out an assessment of the modifications to the building which would be required in order to achieve compliance by all 119 bays with condition 2. The modifications necessary involved moving or trimming various support columns or curbs. The movements of columns ranged from 20 millimetres to as much as 245 millimetres, and Ms Smith expressed the view that moving a column by up to 200 millimetres was unlikely to change the efficiency of a bay because, with the columns in their present location, it would not be difficult to park a vehicle within a bay in a way which minimised or eradicated interference by a column.
It must be noted that the proposed parking layout suggested by Ms Smith for the second floor did not accord with the parking layout depicted on the strata plan in respect of which the applicant seeks certification. The strata plan contemplates that designated parking bays would form part of the strata lots. It is obviously necessary, therefore, that the parking bays marked on the second level reflect the bays in respect of which strata titles will issue.

Does the building have development approval?

The respondent contends that no consent has been given under DPS 2 for the occupation of the 12 residential lots in the layout shown on the strata plan. That is because, it is said, that the development approval was for the construction of a total of 14 residential lots, and the variation reflected in the 2004 building plans approved by the respondent has never been the subject of a separate approval under DPS 2. The applicant argues that the building, as constructed, comes within the scope of the approval granted in September 2002, or alternatively the approval of the 2004 building plans itself amounts to an approval for the purposes of DPS 2.

Contrary to the submission made by the respondent at the hearing, it is apparent that the respondent has, at all times prior to hearing, treated the building as constructed as being subject to the development approval of 25 September 2002 as varied by the Town Planning Appeal Tribunal. As observed above, Mr Etherington gave evidence that, as a matter of course, a building licence application is referred to the planning department of the respondent in order to compare the proposed building plans with the terms of the development approval to which they relate. There is no suggestion that the planners reviewing the 2004 building plans suggested that any amendment might be required to the terms of the development approval. As I have also observed above, the 2004 building plans were endorsed with a notation that "car bays must comply with planning approval (DA 01/0656)". That number is a reference to the development approval dated 25 September 2002.
Furthermore, the stop direction pursuant to s 214 of the PD Act which has given rise to the application in DR 138 of 2006 is based upon the proposition that conditions 1 and 2 of the development approval have not been met. That contention assumes that the development approval is applicable to the building as constructed.
In my view, the City was correct to approach the matter on the basis that the building with 12 residential units was capable of development under the terms of the development approval which originally contemplated 14 residential units, given the particular circumstances of this case. It will frequently be the case that there will be discrepancies between architectural plans which provide a foundation for a planning approval and plans which provide a basis for the issue of a building licence. Whether those discrepancies give rise to a need for an amendment to the planning approval will always be a question of fact and degree in each case. As an example, planning approval may be granted for a residential development with a swimming pool, but the developer may choose not to proceed with the swimming pool for financial or other reasons. The building licence plans may make no provision for a swimming pool. It could not be argued that the residential building , once completed, was not the subject of a planning approval because the swimming pool did not form part of the final development. In contrast, a variation from the planning approval plans which adds some component of planning significance, or varies the proposal in a way which impacts upon the planning considerations for a development, will not come within the scope of the planning approval granted.
In this case, it is instructive to look to the report to council which provided the basis upon which the development approval was granted. The report assesses the elements of the mixed use proposed, deals with bulk and scale, car parking, setback issues, safety and security, loss of views, amenity of adjoining properties, waste management and acoustic requirements and the provision of a community facility. The reduction of the number of residential units from 14 to 12, within essentially the same building footprint, would not appear to impact upon any of those considerations, save possibly to reduce parking demand. There is no suggestion by the respondent that the reduction in the number of residential units is of significance from a planning perspective.
I do not accept the respondent's argument that there is no applicable development approval for the building as constructed. It is, of course, a different question as to the whether the building complies with the conditions of the applicable development approval.

Can conditions 1 and 2 be met?

It is common ground that, as the car bays are presently laid out, 35 of the 119 bays do not meet either condition 1 or condition 2. In my view, that shortfall in compliance is unacceptable, and I would not be inclined to set aside the stop direction while that degree of non‑compliance subsists.
Whether a notice should be issued under s 214, and in turn whether it should be upheld on review, involves a question of discretion. The exercise of that discretion will be guided by the nature and extent of non‑compliance with conditions of approval and the consequences of the non‑compliance in terms of amenity and planning considerations.
Ms Smith expresses the opinion that, without structural alterations, the carparking areas can be made to produce 119 bays which comply with condition 1, and 97 bays which comply with condition 2. There are thus 22 bays that would, under the proposed layout, not comply with condition 2. There are four reasons for that non‑compliance. Those reasons were expressed by Ms Smith as follows:
"•There are 5 parallel bays, all of which are compliant with Australian Standards. Condition 2 makes no provision for parallel bays.
•There are 12 residential/employee bays at 2.4 metre wide. These bays are designed in accordance with Australian Standards, with a 6.2 metre aisle.
•There are 3 end bays which are only 2.6 metres wide. These bays meet the Australian Standard requirements of a 2.3 metres small car bay plus an additional 300 millimetre width required for an end bay; however they are less than the 2.8 metre stipulated by Condition 2.
•There are a further two bays which are marked as 2.3 metres which comply with the Australian Standards as a small car bay and don't comply with the 2.5 metre required by Condition 2."
Ms Smith's assessment that 119 bays could be made to comply with AS 2890.1 is based upon 59 bays being designated as "small car bays". Small car bays are, under the Australian Standard, based on the 50th percentile vehicle length, and the standard prescribes minimum dimensions of 2.3 metres wide by 5 metres long. According to Ms Smith, of the 59 small car bays, 54 are marked as 2.5 metres wide from line to line, and are that width for most of their length, but have intrusions by columns thus reducing the width of the bay measured from the internal face of the column to the line marking on the other side of the bay. All the designated small car bays are 5.4 metres in length, and thus are longer than the minimum requirement for a small car bay length, and meet the requirement for normal parking bays.
The respondent's expert, Ms Round, considered that the parking layout proposed by Ms Smith to achieve greater compliance would still be unacceptable for several reasons. One is that the proposal contemplates that 12 bays on the second floor of the building should be designated as employee/resident bays which, under Ms Smith's proposal, and under the Australian Standard, would require a width of only 2.4 metres. The reason Ms Round considered that that was not acceptable was because she understood that all parking in the development was to be available for reciprocal use in respect of the different activities carried on within the building. It was, however, demonstrated during cross‑examination of Ms Round, that her understanding in that regard was at odds with the approach taken to parking issues at the time of the development approval. It is quite clear from the analysis prepared by Ms Smith prior to the development approval (upon which the respondent based its approval) that the residential parking bays were assumed to remain available for the occupiers of the residential units at all times of the day. The plans attached to the development approval depicted a barrier on the access ramp to the second floor so as to reserve the parking on that level for "residential access". They were clearly not contemplated as being available for reciprocal use. It is a significant part of the amenity of the residential component of the building that dedicated parking be available to the occupants, and, for the purposes of assessing compliance with the Australian Standard, it is reasonable to mark those bays in the dimensions which the standard requires for residential or employee bays.
A second concern expressed by Ms Round related to the effect on amenity of the high proportion of small car bays. She expressed the opinion that the high number of small car bays would have the effect of deterring patrons from parking on site with the consequence that they would, over time, cease to use the tavern or other commercial businesses contained within the development. Ms Smith expressed the opinion that that consequence would not flow. In my view, the concern expressed by Ms Round is unfounded. In most cases, the small car bays are proposed to be the full 2.5 metre wide save for where the columns intrude. In all but one bay, the intrusion by a column occurs on only one side of the bay. I accept Ms Smith's evidence that the length of the bays is such that it is likely that most vehicles could be located within the bay in a manner which would result in no obstruction to the vehicle's door by the column. That would certainly be the case in relation to small cars, and would probably be the case with most standard size vehicles. In my view, the degree of inconvenience to users of the parking areas would not be so great as to deter use of the bays if configured in the manner proposed by Ms Smith.

Should the s 214 direction be set aside?

As I have already observed, the extent of the non‑compliance with conditions 1 and 2 of the parking bays as presently marked is such that the direction under s 214 should be maintained. However, it would be a relatively simple matter to very significantly reduce the level of non‑compliance by re‑marking the bays in the manner identified by Ms Smith. Without the structural modifications to the building, by a simple re‑marking of the bays, all 119 bays could comply with AS 2890.1, provided 59 were designated as small car bays. There would thus be a shortfall of 2 bays from the 121 bays originally depicted on the development approval plans. Of the 119 bays, 22 would not be of the dimensions required by condition 2. Notwithstanding that non‑compliance, if the bays were marked as suggested by Ms Smith, in my view the s 214 direction should then be set aside. As I have said, whether or not a notice should issue involves the exercise of a discretion. The reason I would exercise that discretion against affirming the direction, in the circumstances of this case are as follows:
i)The overall shortfall in bays is only two of 121.
ii)In relation to the non‑compliance with condition 2, the non‑compliance would not appear to affect the functionality of the bays. Twelve of the 22 meet the Australian Standard for residential/employee bays, and a further 5 bays for which condition 2 makes no provision. The remaining five bays appear to be perfectly functional, at least as small car bays.
iii)The 2004 building plans did not depict any turning bays. End of row turning bays are required by AS 2890.1, and Ms Smith's proposed parking layout incorporates two turning bays. At least one of those would appear to have been necessary to comply with AS 2890.1 if the building was constructed precisely in accordance with the 2004 building plans (which were approved by the respondent). It follows that the full 121 bays could not have been achieved if the building was constructed in accordance with the 2004 building plans. The presence of the turning bays explains at least a shortfall of one bay, and possibly two, from the configuration on the 2004 building plans.
iv)The respondent relies upon the development approval plans as the basis for asserting non‑compliance with the building as constructed. The parking arrangements depicted on the development approval plans are significantly different from the parking areas in the building as constructed. The differences arise from the changes to the building which were represented progressively by the TPAT plans, the 2003 building plans and then the 2004 building plans. It was clear, at least from the 2003 building plans, that the parking as depicted on the development approval plans would need revision. That is because of the variation to the layout of the access ramps, the introduction of lifts and stairs in the basement and other changes to the plans which have been referred to earlier in these reasons. Further changes of that nature occurred in relation to the 2004 building plans. In each case, the building plans were referred to the planning department of the respondent, and no objection to the changes on any planning ground appears to have been made.
v)The development approval plans contemplated a total of 15 residential units. It was on that number of units that the parking requirements were assessed. The change to 14 units on the TPAT plans, and then 12 units on the 2004 building plans would all have resulted in a reduced calculation as to the parking bay requirements. Although it is accepted that the total number of bays was never addressed in relation to subsequent plans, and thus the original requirement remained, the actual parking demand is reduced as a result of the changes to the plans after the initial approval.
vi)Although there is a relatively high number of small car bays included in the total number proposed, most of those are required to be designated as small car bays only because of the columns which intrude at particular points on one side of each bay. The bays are otherwise of generous proportions compared to the minimum requirement for a small car bay. There length is such that I am satisfied, given their line to line dimension of 2.5 metres, their functionality will be unaffected not only for small cars, but also for many cars for which standard bays are designed.
It follows that, in my view, the functionality of the car park is not significantly reduced from that which was contemplated in the original development approval. To require columns to be reduced in size, and other structural changes to increase the dimensions of some bays would be to address matters of form rather than substance. The practicality and expense of requiring changes of that nature to the building was not fully explored in evidence, but I am satisfied that it is an exercise which simply does not warrant being undertaken.
The extent of the non-compliance (if Ms Smith's parking layout is adopted) does not warrant the imposition of very considerable prejudice to the applicant if it is required to cease using the premises as a tavern. Mr Murray Ralph, the Manager, Infrastructure Management Services of the respondent, said in evidence that, at the time of the opening of the tavern in or around 6 October 2005, there were, for the first two or three weekends, major parking problems in the area. The City received many complaints from residents concerning illegal street parking. The Tribunal received a video taken by a resident which depicted significant parking congestion in the area at about that time. Mr Ralph said that the incidents of illegal car parking has died down since the first few weeks after the opening of the tavern. The evidence before the Tribunal does not suggest any ongoing parking issues in the general area as a result of the operation of the tavern.
The applicant has indicated a willingness to re‑mark the bays in the way suggested by Ms Smith, and it is appropriate that the Tribunal give directions to ensure that that occurs as quickly as is practicable, at which point the direction under s 214 will be set aside.

The certificate under s 23(2) of the ST Act

Section 5(b)(2) of the ST Act requires that a strata plan lodged for registration be accompanied by a certificate given by the local government in accordance with s 23. Section 23(1) sets out the matters that are required to be certified by local government in order to meet the requirements of s 5(b)(2). The matters the subject of the certification are essentially building matters. The first of those is:
"(a)that the building shown on the plan has been inspected and that it is consistent with the building plans and specifications that have been approved in respect of the building by the local government at first instance, or as a result of a review by the State Administrative Tribunal; …"
The other matters in respect of which certification under s 23(1) is required are not matters of contention in these proceedings.
Section 23(2) of the ST Act provides:
"(2)An application for a certificate under subsection (1) shall be granted by the local government and the certificate shall be issued where the local government is satisfied in respect of the matters referred to in that subsection and is also satisfied that ¾
(a)separate occupation of the proposed lots will not contravene the provisions of any local planning scheme in force under the Planning and Development Act 2005;
(b)any consent or approval required under any such local planning scheme or under the provisions of the last-mentioned Act relating to any interim development order, has been given in relation to the separate occupation of the proposed lots; and
(c)the development of the parcel as a whole, the building and the proposed subdivision of the parcel into lots for separate occupation will not interfere with the existing or likely future amenity of the neighbourhood, having regard to the circumstances of the case and to the public interest."
The respondent contends that the building, in regard to car parking, does not comply with the approved building plans, and it follows that certification under s 23(1)(a) cannot be given. It also contends that it cannot be satisfied, and accordingly the Tribunal cannot be satisfied, that the development of the building will not interfere with existing or likely future amenity of the neighbourhood and thus of the matter referred to in s 23(2)(c).
Prior to and during the hearing, the respondent also contended that the Tribunal could not be satisfied of the matters referred to in sections 23(2)(a) and (b) because there was uncertainty as to which, if any, of the 12 residential lots were proposed to be permanent stay and which were proposed to be short stay apartments. As a result of submissions made during the course of the hearing, the respondent reviewed its position in relation to that contention, and the parties subsequently filed a Minute of Consent Orders for the following declaration:
"Pursuant to s 91 of the State Administrative Tribunal Act it is declared that:
Pursuant to the Approval to Commence Development dated 25 September 2002 issued by the City of Joondalup to Perrine & Birch Architecture & Design,
(i)Units 1, 2, 5, 6, 7, 9 and 12 identified on the Amended Building Plans stamped 'Received 6 October 2004' have received planning approval for the purposes of the City of Joondalup District Planning Scheme No 2 as 'Residential Building (Short Stay Apartments)'; and
(ii)Units 3, 4, 8, 10 and 11 identified on the Amended Building Plans stamped 'Received 6 October 2004' have received planning approval for the purposes of the City of Joondalup District Planning Scheme No 2 as 'Multiple Dwellings'."
The proposed declaration accords with what emerged during the hearing of the application, and clarifies the position as to which units are to be permanent occupation and which are to be short stay occupation. Accordingly, that contention by the respondent no longer requires consideration.

Section 23(1)(a) of the ST Act

The respondent contends that, given that only 119 bays are provided, not the 121 bays required under the development approval plans or the 2004 buildings plans, it is not open to the Tribunal to certify that the building "is consistent with the building plans and specifications that have been approved". It is contended that there is no discretion to grant a certificate which does not provide certification as to all matters listed in s 23(1).

The relevant plans for the purposes of s 23(1)(a) are the 2004 building plans. I was not provided with a set of plans which demonstrate the markings of the car bays as they presently exist. The assessment by Ms Smith as to the potential re‑marking of bays was illustrated by a plan which comprised appendix 2 to her report of 13 July 2006. There is no suggestion that the building does not comply with the 2004 building plans other than in respect of the parking layout.
The question as to whether a building is "consistent with the building plans" for the purposes of s 23(1)(a) is answered by determining whether there are any material departures from the buildings plans. I have already determined that, as presently marked, the parking layout is materially different from the development approval conditions. No analysis has been undertaken which compares the location and dimensions of the bays as presently marked, with the location and dimensions of bays as shown on the 2004 building plans. In other words, none of the evidence identifies whether, if the bays were marked as shown on the building plans, they would have complied with conditions 1 and 2 of the building licence. All that is known is that the building plans provided for a total of 121 bays, but the bays as presently marked number only 119. It is not clear from the evidence whether, as presently marked, there are turning bays in addition to the 119 bays provided.
I have already concluded that, if the bays are re‑marked as suggested by Ms Smith, then the direction under s 214 will be set aside. It is appropriate, therefore, to consider the question of consistency with the building plans on the assumption that that proposed re‑marking occurs. Approaching the question on that assumption, apart from reflecting what is likely to be the actual state of construction in the long term, enables me to compare the 2004 building plans with the plan depicting the proposed parking layout as prepared by Ms Smith. When that exercise is undertaken, it can be seen that the effective difference, in respect of parking, between the 2004 building plans, and the building as it will then be constructed, is that what are shown on the 2004 building plans as bay 84 (on the first floor tavern level) and bay 107 (on the second floor) are shown as turning bays in the proposed parking layout. In other words, the parking layout is effectively the same, save that in Ms Smith's proposed plan, two of the 121 bays are not available for parking. The reason Ms Smith has proposed turning bays is in order to meet the requirements of cl 2.4.2 of AS 2890.1 which requires that " in car parks open to the public, the maximum length of a blind eye shall be equal to the width of six 90 degrees spaces, unless provision is made for cars to turn around at the end and drive out forwards". It is apparent that the 2004 building plans did not comply with that requirement.
It follows that, at least as proposed by Ms Smith, the actual layout of the car parking, and the total number of bays, will be consistent with the 2004 building plans. The difference is not in the construction of the building, but rather in the use that will be made of two of the bays. Ms Smith expressed the opinion having inspected the building, that it had been constructed consistently with the 2004 building plans, and in my view she is correct in that conclusion. On the basis that the proposed parking layout is put into effect, s 23(1)(a) does not provide a basis to decline to sign the certificate.

Section 23(2)(c) of the ST Act

There was some disagreement between the parties as to the scope of the considerations that arise under s 23(2)(c ). The applicant contended that the requirement to be satisfied as to questions of existing or likely future amenity of the neighbourhood, for the purposes of a certificate under s 23 does not involve a revisiting of the considerations already resolved by the planning approval process. Rather, the applicant contends that the consideration is limited to an assessment of the effect of the amenity of "separate occupation". The respondent contends that, on a proper construction of the section, broader questions of amenity arise.
In my view the use of the words "the development of the parcel as a whole" and the reference to "the building" do broaden the scope for considerations as to the effect of the amenity beyond issues arising from separate occupation. To hold otherwise would be to render those words in the subsection meaningless. Having said that, the words "having regard to the circumstances of the case and to the public interest" are important. Where, as in this case, a development approval has been granted in respect of the construction of a building in respect of which strata subdivision is highly likely, the fact that amenity issues have been resolved in that context is an important "circumstance of the case". It could hardly be in the "public interest" for a local authority to grant an approval to develop land which is likely to lead to separate occupation of the lots, and then to revisit its consideration and refuse a certificate under s 23 simply because it subsequently took a different view on amenity issues. There must be some significantly different circumstance which arises which would justify a refusal of the certificate on amenity grounds where the development has received recent planning approval.
In this case, the respondent asserts that it is the failure of the building to comply with the parking conditions which is a significant circumstance which calls into question broad issues of the existing or likely future amenity of the neighbourhood in relation to the development as a whole. It relies in that contention on the opinion of Ms Round that users of the building would be dissuaded from parking in the car park because of its inadequacies. I have already concluded that I do not accept that that concern is justified. As I have already observed, although the Tribunal was shown a video of parking problems in the vicinity not long after the tavern commenced operation, the evidence is that those problems have not continued after the initial opening of the tavern.
In my view, there is no basis upon which it could be said that the development of the parcel as a whole, or its proposed subdivision into lots for separate occupation will interfere with the existing or likely future amenity of the neighbourhood. That issue was substantially resolved by the respondent when it gave planning approval for the development (which in fact proposed an additional three residential apartments), and to the extent it was then resolved, should not be revisited.

Correspondence between the strata plan and the proposed parking layout

There remains one difficulty in relation to the certificate and the parking layout proposed by Ms Smith. The certificate requires certification that the building and parcel shown on the strata plan are consistent with the building plans. Sheet 8 of the strata plan 47048 shows the ten parking bays which each form part of the strata lot. The layout of those bays is not consistent with Ms Smith's proposed layout, and nor is it consistent with the 2004 building plan layout. Ms Smith's layout is based upon the proposition that bays of 2.4 metres in width are acceptable in respect of residential use. Those bays must, however, be contiguous, rather than alternating with bays of different dimension. There will obviously need to be consistency between the marking of the parking bays, and the depiction of those bays on the strata plan, since the strata bays will eventually be the subject of separate titles. That is a matter which will require further consideration by the applicant.

Conclusion

It is apparent, in the light of my findings, the issues between the parties are capable of resolution. That resolution will involve the re‑marking of bays in accordance with Ms Smith's proposed layout. In turn, attention will need to be given to the way in which parking bays are allocated to the individual strata titles.
The respondent submitted that the Tribunal should merely determine the proceedings before it on the basis of the building as it now stands, with the parking bays as they are presently marked. To do so would leave resolution of the issues to be undertaken by ongoing negotiation between the applicant and the respondent. This matter has had a long history of such negotiations. The parties have not been able to resolve their differences. One of the main objectives of this Tribunal is to achieve the resolution of questions according to the substantial merits of the case and in a way which minimises the costs to the parties. I was told from the bar table, and I accept, that there are prospective purchases of these strata units who cannot settle their purchase because titles cannot be obtained. It is obviously highly desirable that the matter be resolved as quickly as possible. Accordingly, having provided the parties with the guidance of these reasons, it is appropriate using the Tribunal's power under s 29(1) of the State Administrative Tribunal Act 2004 (WA) to defer final orders until the applicant is given the opportunity to re‑mark the parking bays in accordance with Ms Smith's plans, and to resolve the question of correspondence between the proposed strata plan and the parking arrangements on the second level as they will ultimately appear. I will hear the parties as to the appropriate directions that should be made to enable those steps to occur.

I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT