RIZZI and TOWN OF VICTORIA PARK
[2021] WASAT 49
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: RIZZI and TOWN OF VICTORIA PARK [2021] WASAT 49
MEMBER: MS KY LOH, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 8 APRIL 2021
FILE NO/S: DR 115 of 2020
BETWEEN: RICCARDO RIZZI
Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords:
Review - Planning - Land zoned 'Special Use: Technology Park' - Whether sole use of land as education establishment is 'incidental to research and development uses'
Legislation:
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
Planning and Development Act 2005 (WA)
Town of Victoria Park Local Planning Scheme No. 1
Result:
Application dismissed.
Decision of Respondent affirmed.
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Rizzi and Town of Victoria Park [2021] WASAT 50
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In May 2020, the Town of Victoria Park refused an application by the owner of land in Bentley, Mr Rizzi, to use the land as an education and training college.
The owner accepts that the proposed use falls outside the scope of the permitted use of 'research and development' under the Special Use: Technology Park zone of the local planning scheme.
However, he says that an 'educational establishment' use, if assessed against the existing 'research and development' uses in the precinct, is 'incidental to' research and development if it adds service and amenity to the precinct, as well as opportunities for synergies with existing uses in the precinct.
For reasons set out below, I do not accept the owner's construction, and affirm the Town's decision.
Issue for determination
The only issue in contention is whether the proposed development is capable of approval, in particular, whether the proposed use is a permissible use which is 'incidental to research and development uses'.
Reasons for decision are to be read with reasons for DR 114 of 2020
The owner has lodged another application for approval of use of land located in the same precinct under the same zoning, which has been dismissed: Rizzi and Town of Victoria Park [2021] WASAT 50 (DR 114). For economy of time and resources, the reasons set out in the decision of DR 114 set out the full exposition of the background, the Tribunal's jurisdiction, legislative planning framework and case authorities, except where further expanded in these reasons, and as such, should be read in conjunction with these reasons.
Background
Development application
In addition to the background facts as set out in DR 114 at [7] - [27], the additional facts below are relevant to this application.
The original development application submitted on 14 April 2020 by the owner's agent, Ms Ann Doyle, was for use of the land as an education and training college. It stated that there was an existing '14 suite office building (two storeys)', and described the proposed work and/or land use as 'change of use from Class 5 to Class 9B' and 'brick and tile colonnade to match existing building'.
Ms Doyle's covering letter to the application stated that '[t]he College will be fitted out in the existing Building on the ground and first floors with no change to the existing external façade' and '[a] colonnade is proposed in the student courtyard that presents at Parker Place which will match the existing building'. The letter also provided the following particulars of the proposed education and training college:
The College will host approximately 300 Students and 20 Staff, it will operate from 8am - 6pm weekdays and 8am - 4pm on Weekends. The facilities will be aimed at providing education and training courses for mature aged students.
The parties' cases
The owner's submissions
As in DR 114, the owner declined to file any documents to support his case, and his position is taken as reflected in the written submissions filed by Planning Solutions with the Town in August 2020.
Planning Solutions accept that the relevant proposed use is 'educational establishment', which 'clearly' does not align with the definition of 'research and development' under Schedule B of the Town of Victoria Park Local Planning Scheme No. 1 (TPS 1).
Planning Solutions say however that Precinct Plan P13 permits other use 'if the use is considered to be incidental to research and development', under which the proposed 'educational establishment' use falls.
Firstly, Planning Solutions note that 'educational establishment' is nominated in the zoning table for the special use zone.
Secondly, Planning Solutions submit that the term 'incidental to' does not mean 'incidental to a specific land use on a specific site', and cite the case of the use of an office and warehouse being developed on a lot where the office is incidental to the operations of a warehouse.
Rather, they infer that 'incidental' refers to the use being incidental to the precinct as a whole, in which the predominant land use is research and development.
Adopting this construction of the term 'incidental', Planning Solutions submit that the development of an educational establishment in the precinct provides synergies between this incidental land use and existing land uses in the precinct through opportunities for internships and transitions from training to workplaces within the precinct.
Planning Solutions also contend that an educational establishment will attract tenants into the precinct with demand for skills in information technology, software development and cybersecurity, and enhance amenity to the predominant use of research and development within the Technology Park.
Planning Solutions also refer to a 'diverse range of education establishments already operating in the precinct' which are comparable to the proposed development. I note that they did not particularise the nature of these establishments nor how these establishments are said to be comparable to the proposed development.
Finally, Planning Solutions contend that the proposed use of education establishment complements the research and development use in the precinct as identified under the BC Activity Centre Plan.
The Town's submissions
The Town's submissions in relation to this matter is similar to that made in DR 114 as set out in DR 114 at [38] - [40].
The Town submits that the proposed use fails to demonstrate a direct association to a research and development use, and that the potential connection to research and development asserted by the owner is entirely in the abstract, rather than a real, direct connection to an identified research and development use.
Legislative planning framework
The relevant legislative planning framework under the Planning and Development Act 2005 (WA), Planning and Development (Local Planning Schemes) Regulations 2015 (WA) and TPS 1 are as set out in DR 114 at [49] - [79].
In relation to the BC Activity Centre Plan, the land is designated as 'research and development', which is defined as:
Research and development activities, enterprises that specialise in science, technology, education and research and the commercialisation of ideas. Additional uses and activities complimentary and compatible to these activities.
Issue – is the proposed use development capable of approval?
Is the proposed use 'incidental to research and development uses'?
For reasons set out below, I find that the permissible use in this special use zone which expands to a use 'incidental to research and development uses' does not include 'educational establishment'.
Firstly, I adopt the construction of the phrase 'incidental to research and development uses' as set out in DR 114 at [90] and [100] - [102].
Secondly, I rely on the analysis in DR 114 at [92] - [99] in rejecting the inference invited by Planning Solutions (and a construction which the Town appears to have also adopted) that 'educational establishment' is a permitted use class.
In my view, as is the case with 'consulting rooms', the bare submissions in support of the development application do not establish any element of research involved in the provision of education and training courses such as to consequently or naturally attach to research and development.
As such, I am not satisfied that the use of the land as an education and training college is 'incidental to research and development uses' within the ordinary meaning of that phrase.
For reasons similar to that set out in DR 114 at [105], I find that the opportunities for synergies between the proposed use of the land and other institutions, and the prospect that 'research and development'-style institutions will be attracted to the precinct through students of the education establishment, are simply too tenuous a proposition and have not been adequately established by the bare submissions.
Thirdly, as to the inference invited, by reference to the existence of other educational institutions, that a precedent has been set, for approval of such uses in the precinct, there is insufficient evidence of the precise nature of these institutions and the circumstances of their development approval for me to draw such an inference.
Are there any other factors supporting approval of the proposed development?
In relation to any added service and amenity provided by an educational establishment being approved in the Special Use: Technology Park zone, I note that the area reserved for public purposes under the Metropolitan Region Scheme and designated 'Technical School' , 'University' and 'Special Use' is relevant in considering any amenity need for educational establishments or like institutions in the precinct.
Finally, I have taken into account the wider definition of 'research and development' under the BC Activity Centre Plan, which has been prepared in recognition of Bentley-Curtin as specialised centre under SPP 4.2. However, in the face of the much more limited meaning of 'research and development' under TPS 1 and Precinct Plan P13, and the admittedly longer-term vision of the BC Activity Centre Plan, the scope of the permissible use under the current 'Special Use: Technology Park' zoning under TPS 1 must take precedence over the aspirational vision set out in the BC Activity Centre Plan.
Conclusion
For reasons set out above, I find that the proposed use as 'educational establishment' is not a permissible use which is 'incidental to research and development uses', and there are no other factors supporting approval of the proposed development.
The review application should therefore be dismissed, and the Town's decision to refuse the development application should be affirmed.
Orders
The Tribunal makes the following orders:
1.The application for review of the Respondent's decision dated 6 May 2020 to refuse the Applicant's development application, which decision was confirmed on reconsideration dated 8 October 2020, is dismissed.
2.The decision of the Respondent dated 6 May 2020 to refuse the Applicant's development application, which was confirmed on reconsideration dated 8 October 2020, is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
9 APRIL 2021