RIZZI and TOWN OF VICTORIA PARK
[2021] WASAT 50
•8 APRIL 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: RIZZI and TOWN OF VICTORIA PARK [2021] WASAT 50
MEMBER: MS KY LOH, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 8 APRIL 2021
FILE NO/S: DR 114 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 consulting rooms is 'incidental to research and development uses'
Legislation:
City of South Perth Town Planning Scheme No. 6
Industry and Technology Development Act 1998 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Pt 5, Pt 8, Sch 2, cl 30, cl 43(1), cl 44, cl 60, cl 67(2), cl 76
Planning and Development Act 2005 (WA), Pt 14, s 4(1), s 68, s 241(1)(a), s162, s 252(1), s 252(2), s 257B, s 257B(2), s 257B(3)
State Administrative Act 2004 (WA), s 17, s 18, s 27(2), s 31
State Planning Policy 4.2 - Activity Centres for Perth and Peel
Technology and Industry Development Act 1983 (WA) (repealed)
Town of Victoria Park Local Planning Scheme No 1, cl 3(1), cl 6(2), cl 6(3)(c), cl 11, cl 12, cl 13, cl 15, Sch B
Result:
Application dismissed.
Decision of Respondent affirmed.
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
City of Swan v Taylor [2005] WASCA 88
G & G Corp Asset Management Pty Ltd and Presiding Member, Metropolitan East Joint Development Assessment Panel (2018) 94 SR(WA) 36; [2018] WASAT 9
Gnarabup Beach Pty Ltd v Shire of Augusta-Margaret River (2004) 137LGERA 129; [2004] WASCA 8
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd (2018) 54 WAR 89; [2018] WASCA 213
Rando and City of Gosnells [2019] WASAT 6
Rizzi and Town of Victoria Park [2021] WASAT 49
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In May 2020, the Town of Victoria Park refused an application by one of the owners of land in Bentley, Mr Rizzi, to use the land as a medical centre.
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 a 'medical centre' use, if assessed against the other 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 partnership and synergies with the 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 115 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 49 (DR 115). For economy of time and resources, these reasons provide the full exposition of the background, the Tribunal's jurisdiction, legislative planning framework and case authorities that apply to both applications, and as such, the reasons for DR 115 are to be read in conjunction with these reasons.
Background
Development application
The facts are uncontroversial between the parties.
On 14 April 2020, the owner's agent, Ms Ann Doyle, applied for development approval to construct and use the land as a medical centre.
At the same time, Ms Doyle also applied for development approval to construct and use a nearby lot (education land) owned by the owner as an education and training college, which is the subject of DR 115.
The development application for the land stated that there were existing 'office buildings and electrical transformer', and described the proposed work and/or land use as 'medical centre fit-out, new entrance canopy class 9A to treatment room area'.
Ms Doyle's covering letter to the application stated that '[t]he medical centre will be fitted out in the existing Building A and Building B on ground and first floors with minimal changes to the existing external façade'. The letter also provided the following particulars of the proposed medical centre:
The Medical Centre will operate from 7am - 10pm weekdays and 8am - 10pm Weekend and Public Holidays. The facilities will be aimed at providing primary health care that will bring together general practitioners, practice nurses, allied health professionals, medical specialists and other healthcare providers.
On 6 May 2020, the Town refused both development applications, stated as a change of use to 'medical centre' and 'additions (commercial) and change of use to educational establishment' respectively, for the same following reason:
1.The proposed development does not align with the permitted use of 'Research and Development' for the 'Special Use' zone within Precinct 13 - Curtin Precinct - Technology Park under the Town of Victoria Park Local Planning Scheme No. 1, and therefore is not in accordance with orderly and proper planning.
On 2 June 2020, the owner lodged two applications with the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (Planning Act) seeking a review of the Town's decisions to refuse both development applications.
Following a mediation of both matters, the Town was invited to reconsider its decisions pursuant to s 31 of the State Administrative Act 2004 (WA) (SAT Act).
In August 2020, Planning Solutions, as representative for the owner in both Tribunal proceedings, filed applications for development approval under the Metropolitan Region Scheme (MRS) (as recommended by the Town).
Planning Solutions also filed submissions and amended development plans in support of both development applications.
In respect of the proposed medical centre, they described the proposed medical centre as follows:
The proposed Trident Medical Centre […] is intended to accommodate a range of medical and allied health specialists and provide the full range of medical services within one building. Establishment of the proposed medical centre requires a change of use to 'Consulting Rooms'.
On 8 October 2020, upon reconsideration, the Town refused both development applications, citing the same reason for refusal of its original decisions of 6 May 2020 and added the following additional reason for refusal:
2.The proposed use is not considered to be incidental to research and development in the precinct.
Following the Town's refusal of the development applications upon reconsideration, Planning Solutions ceased acting as the owner's representative in both Tribunal proceedings.
Description of Land
The land is located on Lot 74 (No. 3) Sarich Way, Bentley, and the education land is located on Lot 24 (No. 16) Brodie Hall Drive, Bentley.
Both the land and the education land are zoned 'Urban' under the MRS and zoned 'Special Use: Technology Park' in the precinct plan for 'Precinct 13 Curtin' (Precinct Plan P13) under the Town of Victoria Park Local Planning Scheme No.1 (TPS 1).
The land and education land are located within the Bentley-Curtin specialised centre under State Planning Policy 4.2 – Activity Centres for Perth and Peel (Government Gazette, 31 August 2010) (SPP 4.2).
The Bentley-Curtin specialised centre spans the city of South Perth and town of Victoria Park, and is 'characterised by education, scientific research and technology, with major institutions anchoring more than 100 knowledge and education focused organisations': Bentley-Curtin Specialised Activity Centre Plan (August 2018) (BC Activity Centre Plan) (p14).
The land is designated as 'Mixed Use' under the BC Activity Centre Plan.
Both the land and the education land are located within an area declared to be a 'technology park' under the Technology and Industry Development Act 1983 (WA) (repealed), which continues in effect under the Industry and Technology Development Act 1998 (WA) (IndustryAct): see pp 12, 18, 118 and 121 of the BC Activity Centre Plan.
The BC Activity Centre Plan depicts eastern and western sections of the 'technology park' declared under the Industry Act (Figure 51), with Kent Street running through the eastern and western sections. The land and the education land sit within the eastern section of the declared 'technology park'.
In these reasons, references to 'Technology Park' are to that area identified as such in Precinct Plan P13 rather than that declared under the Industry Act.
The parties' cases
The owner's submissions
While the owner declined to file any documents to support his case, his position is taken as reflected in the written submissions filed by Planning Solutions with the Town referred to in [16] - [17].
Planning Solutions accept that the relevant proposed use is 'consulting rooms', which 'clearly' does not align with the definition of 'research and development' under Schedule B of 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 'consulting rooms' use falls.
Firstly, Planning Solutions note that 'consulting rooms' 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', such as in the case of an office and warehouse being developed on a lot where use of 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 inclusion of incidental land uses, such as consulting rooms, serve to make the precinct more attractive to prospective international technology-focussed companies which may locate in the park by offering a higher level of service and amenity. They refer to the fact that the Technology Park precinct and surrounds currently do not contain any medical centres within a 1 km radius, with most services greater than 2 km away from the land.
Planning Solutions also contend that development of consulting rooms in the precinct provide the opportunity for partnerships and indirect synergies between this land use and existing land uses in the precinct. I note that they did not particularise how synergies can be effected between a medical centre and the existing medical research or training facilities referred to in their submissions.
Planning Solutions also state that there are a number of facilities in the precinct which do not have a direct research and development function. I note that they did not provide particulars as to the functions of these facilities.
Finally, Planning Solutions contend that the proposed use of 'consulting rooms' is consistent with the future land uses of the Technology Park precinct under the BC Activity Centre Plan, in particular, on the land which has been designated for 'Mixed Use'.
The Town's submissions
The Town agrees that the proposed use falls within the use class 'consulting rooms', and in particular, the identification of use classes in the zoning table suggests that Precinct Plan P13 contemplates that the use of land for a purpose incidental to research and development may be an independent land use.
The Town recognises, however, that there is ambiguity in the provisions of Precinct Plan P13. Indeed, certain parts of Precinct Plan P13 suggest that the concept of being incidental to research and development requires the incidental activity to be carried out on the same lot as the predominant research and development, for example, in relation to the 'production, manufacture and assembly of products'.
On balance, the Town accepts that the term 'incidental to' cannot be construed as incidental to research and development on the same lot, but must be 'consequent on, or naturally attaching, appertaining or relating to, research and development in the precinct'. It adopts the meaning of the term as articulated in City of Swan v Taylor [2005] WASCA 88 (Taylor), which requires some relationship or connection between the two uses for one to be incidental to the other.
The Town submits that the proposed use fails to demonstrate a direct association to a research and development use, and the uncertain and peripheral connections fall a long way short of demonstrating the necessary direct association to a 'research and development' use that would allow the consulting rooms to be considered a permissible use incidental to research and development in the precinct.
Tribunal's jurisdiction
The owner has applied under s 252(1) of the Planning Act for a review of the Town's decisions to refuse both of his development applications. He seeks orders for the refusals to be set aside and for both development applications to be approved.
Each application falls within the Tribunal's review jurisdiction as a matter that expressly involves a review of a decision: s 17 of the SAT Act.
As such, the Tribunal is to deal with both applications in accordance with the SAT Act (with any modifications by the enabling Act) and the enabling Act: s 18 of the SAT Act.
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: s 27(2) of the SAT Act.
As discussed later at [56] - [60], the relevant decisions under review are the Town's refusal to grant approval to development of the land and the education land.
As an aside, whilst s 252(2) of the Planning Act appears more directly applicable, being the review of a decision as to the classification of a use under a local planning scheme, the Town's consideration of the classification of a use (that is, research and development) is made in the course of making a discretionary decision about whether to grant a development application.
Such a decision falls squarely within the scope of s 252(1) of the Planning Act. In such circumstances, s 252(2) (which is expressed to be subject to s 252(1)) is not engaged, and each application falls to be reviewed under s 252(1): see Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd (2018) 54 WAR 89; [2018] WASCA 213 at [58].
Legislative planning framework
Planning Act 2005
A person cannot, without having first obtained the requisite approval of a development application under a planning scheme, commence or carry out development on land: see s 162 Planning and Development Act 2005 (WA) (Planning Act).
The definition of 'planning scheme' under s 4(1) of the Planning Act includes a local planning scheme that has effect under the Planning Act and includes:
(a)the provisions of the scheme (being relevantly the provisions set out in the scheme and any provisions that have effect under s 257B(2) as part of the scheme); and
(b)all maps, plans, specifications and other particulars contained in the scheme and colourings, markings or legends on the scheme.
The provisions that have effect under s 257B(2) of the Planning Act are those referred to as 'deemed provisions' (Deemed Provisions), which have effect and may be enforced as part of each local planning scheme to which they apply, whether they were prescribed before or after the scheme comes into force.
Further, a Deemed Provision prevails over another provision of the scheme to the extent of any inconsistency, and the other provision is, to the extent of the inconsistency, of no effect: s 257B(3) of the Planning Act.
In determining a review application under Pt 14 of the Planning Act, the Tribunal is to have due regard to relevant planning considerations including, relevantly, any State planning policy which may affect the subject matter of the application: s 241(1)(a) of the Planning Act.
LPS Regulations
The Deemed Provisions are prescribed in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations).
The relevant local planning scheme in this case is TPS 1, which was in force under the Town Planning and Development Act 1928 (WA) (repealed), and continues in force as a local planning scheme under, and has effect as if it were enacted by, the Planning Act, pursuant to s 68 of the Planning Act.
Development control
Under TPS 1 and pursuant to s 257B of the Planning Act, the requirements for development approval are contained in cl 60 of the Deemed Provisions.
Clause 60 of the Deemed Provisions contains the prohibition against commencing or carrying out any works on, or using, land in the scheme area unless, relevantly, the person has obtained the development approval of local government under Part 8 of the Deemed Provisions.
Under cl 67(2) of the Deemed Provisions, a local government is to have due regard to certain matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application.
Such matters include:
•the aims and provisions of TPS 1 (cl 67(2)(a));
•the requirements of orderly and proper planning ((cl 67(2)(b));
•any approved State planning policy (cl 67(2)(c));
•any structure plan or activity centre plan (cl 67(2)(h));
•the amenity of the locality including, relevantly, the social impacts of the development (cl 67(2)(n));
•any other planning consideration the local government considers appropriate (cl 67(2)(zb)).
By virtue of cl 76 of the Deemed Provisions, an applicant for development approval may relevantly apply to the Tribunal for a review of a determination by a local government to refuse an application for development approval in accordance with Pt 14 of the Planning Act.
Activity centre plan
Under cl 30 of the Deemed Provisions, an 'activity centre plan' or 'activity centre structure plan' (hereafter referred to as activity centre plan) is defined to mean a plan for the coordination of the future subdivision, zoning and development of an activity centre.
Once prepared and approved by the Western Australian Planning Commission in accordance with Part 5 of the Deemed Provisions, a decision maker may have due regard to, but is not bound by, the activity centre plan when deciding an application for development approval in an area covered by an approved activity centre plan: cl 43(1) of the Deemed Provisions.
TPS 1
Scheme Text
Clause 3(1) of TPS 1 provides that the scheme is comprised of the Deemed Provisions, the scheme text, each of the precinct plans and each Council register.
Under cl 6(2) of TPS 1, the overall goal of TPS 1 is 'to ensure that the Town of Victoria Park and its environs will be widely recognised as providing a high level of services and amenities in a friendly and accountable manner'.
The general objectives of TPS 1 includes 'to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which (i) recognises the individual character and needs of localities within the [s]cheme area; and (ii) can respond readily to change': cl 6(3)(c) of TPS 1.
Under cl 11 of TPS 1, the scheme area is divided into precincts. The land and the education land fall under the 'Curtin' precinct.
Under cl 12 of TPS 1, land within the scheme area is classified into either reserves (under the MRS or TPS 1) or zones, which classification is shown on the precinct plan in which the land is located.
The land and the education land are classified as 'Special Use: Technology Park' in Precinct Plan P13.
Under cl 13 of TPS 1, uses are classified as permitted uses, discretionary uses and prohibited uses.
The scheme zoning table is contained in cl 15 of TPS 1, which provides that permissibility of any listed use classes against the various zones is determined by reference to use of symbols 'P' (permitted use), 'AA' (use not permitted unless Council grants development approval) and X' (use not permitted).
Schedule B to TPS 1 defines 'research and development' as 'scientific and industrial research and the development, production and assembly of products associated with that research'.
Precinct Plan P13
The preamble to Precinct Plan P13 states that:
HOW IT WORKS
This Precinct Plan describes the Council's town planning intentions for this precinct. It contains a Statement of Intent which applies to the whole Precinct and several other statements which apply to specific areas within the Precinct. These statements summarise the kind of future that is seen to be appropriate for the precinct.
The 'Statement of Intent' in Precinct Plan P13 states as follows:
The Curtin Precinct will be consolidated as a major education precinct, comprising Curtin University of Technology, Bentley Campus of Technical and Further Education, Canning College, the Baptist Theological College, and technological research uses, together with major housing facilities for the aged at Swan Cottages and Rowethorpe, and a range of ancillary uses required to serve these major regional facilities. The area will also provide for specialised facilities and residential accommodation.
The 'Special Use' zone under Precinct Plan P13, with the designation 'Technology Park', is described in terms that it 'will accommodate research and development activities set in spacious landscaped surrounds' and where '[p]otential conflict with adjacent uses will be minimised'.
Precinct Plan P13 provides the following specific statements in relation to the Special Use zone 'Technology Park':
This area shall be further promoted and consolidated as a specialized location for technological research and development activities. The main use will be scientific and technological research and development; production, manufacture and assembly of products will be permitted provided it relates and is ancillary to the technological research and development activities on each site. Other uses may be permitted if the use is considered to be incidental to research and development uses and conforms with a number of other specified requirements. (Emphasis added)
There is a zoning table setting out various use classes, which appear as a subset of that which appears in cl 15 of TPS 1.
However, the symbols indicating the permissibility (or otherwise) of the use classes are absent, only the statement '[r]efer to provisions outlined below' in its place.
Whilst the zoning table includes 'consulting rooms', intriguingly, it also includes uses such as 'nightclub', 'massage rooms', and 'fast food outlet'.
The provisions which immediately follow the zoning table state as follows:
The use permitted is research and development. Land in this area may also be used for a purpose that is incidental to research and development if the Council is satisfied that the use would:
(a)Be compatible with the Statement of Intent;
(b)Neither generate excessive traffic movements to, from or within the area nor require servicing by heavy vehicles;
(c)Have no adverse impact in, or on the precinct, or adjacent residential areas caused by noxious emissions or any other disturbance;
(d)Not result in more than 50% of the gross floor space of the building being taken up by any one or more of storage, production, manufacture or assembly activities; and
(e)Comply with a requirement that any production, manufacture or assembly activities must be carried out without causing a nuisance or detrimentally affecting the amenity of the adjoining residential area.
Note:All uses other than that which is nominated above, and those which have a direct association with the nominated use are prohibited uses (Emphasis added).
BC Activity Centre Plan
The BC Activity Centre Plan is recognised as a 'structure plan' prepared under the provisions of the City of South Perth Town Planning Scheme No. 6 and TPS 1, and approved as an 'activity centre plan' by the WA Planning Commission until 6 June 2028, pursuant to cl 44 of the Deemed Provisions.
For the avoidance of doubt, the BC Activity Centre Plan is expressed as a vision for Bentley-Curtin as an activity centre under SPP 4.2 (in particular, a specialised centre), and as such, the BC Activity Plan properly falls within the classification of 'activity centre plan' under Part 5 of the Deemed Provisions.
The land is designated as 'Mixed Use' under the strategic plan of the BC Activity Centre Plan, with 'Mixed Use' being defined as:
a concentration of diverse non-retail activities and uses complimentary or contributing to the amenity of Bentley-Curtin's residents, workers and visitors. Commercial, service and knowledge based uses at street level for activation, extending to similar and/or residential uses on upper levels.
Relevantly, the BC Activity Centre Plan is expressed as a plan 'intended to guide change to 2031, recognising further capacity in the longer term'. While it encourages local government to implement this strategic plan through local scheme amendments or reviews, the BC Activity Centre Plan recognises that ultimately local planning schemes will retain control and planning provisions that guide and assess development within Bentley-Curtin (p 3).
Case Authorities
'Incidental to'
Contention over the meaning of the phrase 'incidental to' have arisen in cases where there are two or more uses proposed on a single development site: see Taylor, G & G Corp Asset Management Pty Ltd and Presiding Member, Metropolitan East Joint Development Assessment Panel (2018) 94 SR(WA) 36; [2018] WASAT 9 (G & G Corp), Rando and City of Gosnells [2019] WASAT 6 (Rando).
In particular, judgment on whether a use is 'incidental to' another use is necessary where provisions of the local planning scheme obviate a need to seek development approval for an incidental use that does not change the predominant use of the land (in the case of G & G Corp and Rando) or where a use is to be treated as a permitted use if it is incidental to a predominant use (in the case of Taylor).
In all of the above cases, the predominant use of land was permissible under the local planning scheme.
The owner’s case in this matter and in DR115 is not concerned with multiple uses on land, nor are the provisions of TPS 1 engaged that require incidental uses to be assessed against predominant uses.
Instead, I have to assess whether the provisions of TPS 1 and Precinct Plan P13 permit approval of a sole use of the land which falls outside the definition of a permitted use, on the basis that that sole use is 'incidental to' the permitted use applicable to that land and surrounding lands.
Structure Plans
It is a proposition just as true before the introduction of the Deemed Provisions as it is after that, while an approving authority must generally have regard to an approved structure plan in considering a development application, the application must be dealt with on its merits, and noncompliance with the structure plan may not always be fatal to the success of the application: Gnarabup Beach Pty Ltd v Shire of Augusta-Margaret River (2004) 137LGERA 129; [2004] WASCA 8 at [12] and [15].
Issue - is the proposed development capable of approval?
Is the proposed use 'incidental to research and development uses'?
As a matter of construction, I agree with the parties that the language of Precinct Plan P13 is wide enough to permit approval of a sole use of land which is 'incidental to research and development uses' in the precinct. The constraint however, is for such use to have a 'direct association' with 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 the proposed 'consulting rooms'.
Firstly, a potential inconsistency in Precinct Plan P13 that needs to be reconciled is the list of the use classes in the zoning table in Precinct Plan P13. It stands in curious contrast to the significantly more detailed list in the zoning table under cl 15 of TPS 1, and may lead to the conclusion that it represents a deliberate election of use classes that may be suitable under the special use zone.
However, by Amendment 80 of TPS 1, which was gazetted on 18 April 2019, the zoning table was updated in the scheme text on 18 April 2019 to include the current, and more comprehensive, list of use classes.
Whilst Amendment 80 also required the extracts of the zoning table in all precinct plans to be updated, my review of all current precinct plans reveals that the extracts of the zoning tables for the special use zone have not been updated, including in Precinct Plan P13.
The extracts of the zoning table for other zones in other precinct plans, however, have been hatched out, with the notation 'Replaced by AMDT 80 GG 18/04/19'.
The selective list of use classes in Precinct Plan P13 is thus easily explicable as simply a penultimate representation of the zoning table prior to its replacement by Amendment 80 of TPS 1. It is not to be treated, however, as an indication of permissible use classes for the special use zone 'Technology Park'.
Further, the statement that the use of land is 'as indicated in the Zoning Table in the Scheme Text and outlined below for a Special Use Zone' is a generic statement used in all precinct plans as an introduction to the zoning tables. The statement is expressed to be subject to the provisions of the particular precinct plan. In the absence of the symbols which indicate the permissibility (or otherwise) of the use classes, the zoning table does not have any real application to the special use zone.
Finally, the statement 'all uses other than that which is nominated above' which appears in Precinct Plan P13 must be interpreted against the statements which immediately precede it, not the zoning table itself (which, as already established above, replicates the whole of the table at some time prior to its replacement by Amendment 80 of TPS 1, and is not a representation of permitted use classes).
As such, I reject the inference invited by Planning Solutions (and a construction which the Town appears to have also adopted) that 'consulting rooms' is a permitted use class.
Secondly, as to the meaning of the phrase 'incidental to', I accept the Town's submission that it should carry its ordinary meaning, as articulated in Taylor (at [67]), that being a use which is consequent on, or naturally attaching, appertaining or relating to, research and development. This is consistent with the constraint expressed in Precinct Plan P13 that the use 'incidental to research and development uses' must bear a direct association with research and development uses.
'Research and development' is defined in the Macquarie Dictionary online (as at 9 April 2021) as 'that branch of industry concerned with scientific research and the technological development of the results'.
'Research' is in turn relevantly defined in the Macquarie Dictionary online (as at 9 April 2021) as '1. Diligent and systematic inquiry or investigation into a subject in order to discover facts or principles: research in nuclear physics'.
On the ordinary understanding of 'research and development', I am not satisfied that the use of the land to provide for 'primary health care' or 'the full range of medical services' is incidental to research and development, in the sense that it is consequent on or naturally attaching to research and technological development of the research results.
There is simply no element of research involved in the provision of health care or medical services, as ordinarily understood, which can consequently or naturally attach to research and development, and no evidence has been submitted before me which is sufficient to draw that conclusion.
As to whether the opportunity for partnership or synergies between the proposed use of the land and other institutions amounts to the proposed use being 'incidental to research and development uses', I find:
(a)firstly, that the existence of partnership or synergistic opportunities have not been adequately established by bare submissions; and
(b)secondly, it is too tenuous a proposition that partnership or synergistic opportunities could exist between other research and development organisations and a medical centre.
I also agree with the Town that the approval of a development with tenuous links to research and development will only frustrate the intention for the area to be developed as a technology park on an incremental basis, as it relies on the existence of other developments being used for 'research and development' so as to take advantage of the expanded permissible use for its own development.
Thirdly, as to the inference invited, by reference to the existence of other institutions without a direct ‘research and development’ function, that a precedent has been set for approval of such uses in the precinct, there is insufficient evidence as to the precise nature and function 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 proposed development?
In relation to any added service and amenity provided by a medical centre being approved in the special use Technology Park zone, I note that the special use Residential and Special Facilities zone permits consulting rooms as an ancillary use. As such, any requirement for consulting rooms to meet the amenity of the precinct can be met through the Residential and Special Facilities special use zone.
Further, I have taken into account that the land is designated 'Mixed Use' under the BC Activity Centre Plan, which has been prepared in recognition of Bentley-Curtin as a specialised centre under SPP 4.2. However, such designation is not consistent with the special use Technology Park zoning under Precinct Plan P13, and would require rezoning of the land under TPS 1 to a more appropriate zone such as residential/commercial or commercial zones to give effect to that designation.
Indeed, that amendments to TPS 1 would be necessary to give effect more generally to the BC Activity Centre Plan is recognised explicitly in the BC Activity Centre Plan itself.
Further, the scope of the BC Activity Centre Plan is expressed as 'recognising further capacity in the longer term' and to 'guide change to 2031', which, in my view, cannot take precedence over the intent for the land for 'research and development' use under its current special use zoning in Precinct Plan P13.
Conclusion
For reasons set out above, I find that the proposed use as 'consulting rooms' 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:
(a)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.
(b)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
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