Saruman Holdings Pty Ltd and Western Australian Planning Commission - [2007] WASAT 94

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SARUMAN HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 94

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 23 APRIL 2007

DELIVERED : 26 APRIL 2007

FILE NO/S: DR 211 of 2006

BETWEEN: SARUMAN HOLDINGS PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Leases and licences - Application for approval of licence over existing car park on foreshore land which is reserved for parks and recreation - Private use of public land - Review of conditions which require that car park be available to the public at all times and not for the exclusive use of patrons of adjoining restaurant and that existing unauthorised signs indicating that the car park is for restaurant patrons only be removed - Whether conditions are for a planning purpose, fairly and reasonably relate to licence application and are appropriate and reasonable - Conditions consistent with nature of licence, character of reservation and strategic coastal planning - Access to public foreshore areas on the coast - Meaning of "the coast" - Application for review dismissed

Legislation:

Metropolitan Region Scheme
Town of Cambridge Town Planning Scheme No 1
Planning and Development Act 2005 (WA), s 136(1), s 238(3), s 241(1), s 251(2)

Result:

Application for review dismissed
Conditions 1 and 3 affirmed

Category: B

Representation:

Counsel:

Applicant: Mr PD McGowan
Respondent: Ms CA Ide

Solicitors:

Applicant: Arthur Metaxas & Co
Respondent: State Solicitor's Office

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant, which operated a restaurant and a café on the foreshore at City Beach, sought review of conditions imposed by the respondent on approval of a licence for use of a car park by patrons of the restaurant and café. The conditions required that the car park be available to the public at all times and that unauthorised signage indicating that the car park is for patrons of the restaurant only be removed.
The Tribunal determined that the conditions are for a planning purpose, fairly and reasonably relate to the licence application and are appropriate and reasonable as they are consistent with:
•the nature of the licence;
•the character of the reservation for parks and recreation; and
•strategic coastal planning.
The application for review was dismissed and the conditions were affirmed.

Introduction

These proceedings involve an application brought by Saruman Holdings Pty Ltd (applicant), pursuant to s 251(2) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Western Australian Planning Commission (Commission or respondent) to affix conditions to the granting of an approval for a licence between the Town of Cambridge (Town or Council) and the applicant for entry upon and use of a constructed car park at Pt Lot 1911 Crown Reserve 16921 (No 195) Challenger Parade, City Beach (site or car park). Section 136(1) of the PD Act relevantly provides that a person is not to grant a licence to use or occupy land for any term exceeding 20 years, including any option to extend or renew the term or period, without the approval of the Commission. The term of the proposed licence is expressed in the licence document submitted by the Town's solicitors to the Commission on 24 March 2003 as "approximately nineteen (19) years commencing [ ] and expiring 31 March 2021". The proposed licence also includes a further term of 10 years commencing on 1 April 2021. Although there are now less than 14 years to the expiry date of the principal term, the licence would still be for a term exceeding 20 years including the further term.
The site comprises a constructed car park with 34 car bays. The site adjoins a building which was constructed by the applicant in 2000-2001 and which includes a restaurant operated by the applicant as Oceanus on the Beach, a café operated by the applicant as Mediterraneo Café, a kiosk operated by the applicant and public change rooms and toilets maintained by the Town. There are a number of signs on poles around the car park which state "OCEANUS ON THE BEACH MEDITERRANEO CAFÉ PATRONS PARKING ONLY". There is another sign on a pole, apparently located near the entrance to the car park, which contains these words and also at the top the word "PRIVATE". There are also two signs painted onto the ground, the first on a roadway leading from Challenger Parade to the restaurant building, the car park the subject of the proposed licence and another car park, stating "RESTAURANT ONLY", and the second on the roadway at the connection between another car park and the entrance to the restaurant building and the car park stating "RESTAURANT ENTRY ONLY". The restaurant building and the car park are located on Crown Reserve vested in the Town comprising and adjoining City Beach which is reserved for Parks and Recreation under both the Metropolitan Region Scheme (MRS) and the Town of Cambridge Town Planning Scheme No 1 (TPS 1).
On 30 May 2006, the Commission approved the proposed licence subject to the following four conditions:
"1.The licence including a provision that requires the car park to be available to the public at all times and not for the exclusive use of the patrons of the restaurant.
2.The licence including a provision to ensure free access to the public across the licence area to the vehicle ramp leading to the change rooms and to paths leading to the beach and surrounds.
3.The existing unauthorised signs indicating that the parking area is for patrons of the restaurant only being removed to the satisfaction of the Commission.
4.A development application for the existing car park being submitted to the Western Australian Planning Commission for determination."
The applicant subsequently commenced these proceedings for review of the Commission's decision to affix conditions 1 and 3 to the granting of its approval for the licence. In its application, the applicant also sought review of the decision of the Commission to grant conditional development approval to a development application submitted under the MRS. However, the disputed condition of development approval has been resolved between the parties and no longer forms part of these proceedings. Although the application for review stated that the proceedings are a class 1 planning application, which normally, under s 238(3) of the PD Act, would be determined by an ordinary member sitting alone, an application for review of a condition affixed to the granting of an application for a licence is not subject to s 238(3) and can be determined by a senior member.

Background

In September 1998, the Town received the final report of the Town of Cambridge Coastal Planning Study (Planning Study) which was undertaken by consultants on its behalf. The principal policy objectives identified in the Planning Study for City Beach included "to provide additional public facilities and amenities for the enjoyment of the community and visitors". The planning proposals for City Beach included that "a café/restaurant at the beach is supported in principle". The Planning Study stated that parking and access at City Beach was "excellent" and in particular that there were in excess of 735 parking bays between Challenger Parade and the beach.
The Council subsequently formulated design guidelines for the planning and design of a building at City Beach comprising café/restaurant, kiosk, change rooms and public toilets (design guidelines), and invited tenders for the construction and operation of the facility. In relation to access and parking, the design guidelines stated as follows:
"•Development is to take advantage of existing available public parking.
•On‑site parking is not required to be provided."
The applicant successfully tendered for the construction and operation of the facility. The Council, in its letter to the Chief Executive of the Ministry for Planning dated 14 February 2000 enclosing the applicant's development application for the facility, observed that the development application conformed closely to the design guidelines and recommended that the application be approved. The development application proposed a loading bay and two dedicated disabled car parking bays adjoining the building, but no other parking facilities.
The Commission's assessment report noted, in relation to orderly and proper planning, that the site is well located in terms of car parking facilities and in particular that the Planning Study stated that parking and access was excellent. The report recommended that development approval should be granted by the Commission as the development was consistent with the orderly and proper planning of the locality and would not adversely impact on the amenity of the locality. The Commission accepted this recommendation and granted conditional development approval.
Mr Anthanasios Galopoulos, the principal of the applicant, gave evidence that, from the commencement of the construction of the building, he was regularly informed by the builder that tradespeople could not find car parking in both summer and winter. As a result of the parking difficulties experienced by tradespeople during construction, Mr Galopoulos identified that the restaurant would require some form of dedicated parking once it commenced trading. On 31 October 2000, the applicant wrote to the Town indicating that it had become apparent, even during the winter months, that there were a number of occasions when the car parks were completely full, leaving no room for restaurant patrons to park and that this situation will occur on a regular basis during the summer. In order to resolve this problem, the applicant indicated that it was prepared to construct a 30 bay dedicated car park and requested the Council to make a $20 000 contribution to the construction cost. The letter stated that the applicant's quantity surveyors had estimated the construction cost of the car park, including paving, drainage and lighting, to be $40 000.
On 28 November 2000, the Council considered the applicant's request to construct a dedicated 30 bay car park for the restaurant and for the Council to contribute towards the construction. The assessing officer stated that "it is now obvious that even through the winter months, there are a number of occasions when the Council car parks adjacent to this development are completely filled, leaving no room for restaurant patrons to park". The officer recommended approval for the applicant's proposal and noted that "signage should be required at the entrance of the car park indicating that it is for the exclusive use of restaurant patrons only". The Council accepted its officer's recommendation and agreed to contribute $20 000 towards the construction of the car park subject to, among other things, the applicant entering into a license agreement with the Town to run concurrently with the lease agreement for the building and an agreement for the enforcement of the dedicated parking.
On 30 November 2000, the Chief Executive Officer of the Town wrote to Mr Galopoulos advising of Council's resolution and noting that "appropriate signage, to be supplied by [the applicant], will be required at the entrance to the car park indicating that it is for the exclusive use of restaurant patrons only".
The applicant commenced construction of the car park in about December 2000 and completed construction in about June 2001. The restaurant/café/kiosk development was completed on 24 May 2001. The signage indicating that the car park is for the use of restaurant/café patrons only was installed in about June 2001. Although Mr Galopoulos understood that the Council's approval for the signs was sought and obtained by the company that made the signs prior to their installation, the Acting Chief Executive Officer of the Town indicated to the Commission in a letter dated 31 March 2005 that the applicant "has at its initiative and not with Council approval erected [the] signage". The applicant did not obtain development approval under the MRS for the construction of the car park. An application for retrospective development approval was made to the Commission on 7 December 2006 and has not been determined.
Although the Council resolution of 28 November 2000 contemplated that the car park would be "dedicated parking" for the applicant's restaurant and café, and although the officer's report spoke of the need for parking "for the exclusive use of the café/restaurant", the proposed licence which was submitted by the Town's solicitors to the Commission for approval under s 136(1) of the PD Act would not confer exclusive possession of the car park to the applicant. Indeed, cl 3.2 of the proposed licence states as follows:
"The rights conferred by this Licence rest in contract only and do not create or confer upon the Licensee any estate or interest in the Licensed Area and the rights of the Licensee are those of a licensee only and do not confer upon the Licensee exclusive possession of the Licensed Area."
In his letter to the Commission dated 31 March 2005, the Town's Acting Chief Executive Officer stated as follows:
"It was never the Town's intention to provide exclusive parking on Council freehold land for the restaurant. Subsequently, that is the reason for entering into a licence and not a lease, which does not grant the tenant exclusive use of this car park."
Mr Ian Birch, the Town's Director, Development and Sustainability, gave evidence on behalf of the applicant. Mr Birch observed, correctly, that the quotation from the Acting Chief Executive Officer's letter is inconsistent with the Council's resolution of 28 November 2000. Mr Birch said that, to his knowledge, the Council has not passed any resolution contrary to its resolution of 28 November 2000. However, the quotation from the Acting Chief Executive Officer's letter is consistent with the terms of the licence which is the subject of these proceedings.

Review of conditions in dispute

The issue identified by the parties in their statements of issues, facts and contentions was whether conditions 1 and 3 affixed by the Commission to the granting of its approval for the licence "are for a planning purpose and fairly and reasonably relate to the licence application". However, the evidence and submissions presented at the hearing were directed not to whether the conditions could be lawfully imposed, but rather whether they are appropriate and reasonable in the circumstances of the case.
The Tribunal considers that the conditions in dispute have a planning purpose, fairly and reasonably relate to the proposed licence and are appropriate and reasonable in the circumstances of the case for three reasons.
First, the conditions are consistent with the nature of the licence. As noted earlier, cl 3.2 states that the licence does not confer exclusive possession of the car park. Condition 1 simply makes explicit that which is implicit in cl 3.2, namely that the car park is available to members of the public and is not for the exclusive use of patrons of the restaurant. Condition 3, which requires the removal of the unauthorised signage, is also consistent with cl 3.2, because the signage states that the car park is only available for patrons of the restaurant or café.
Second, the conditions are consistent with the character of the reservation of the site for parks and recreation. As Mr Wayne Zimmermann, a town planner who gave evidence on behalf of the Commission, said, given the variety of uses and activities that may occur on the reserve and its purpose, shared access and parking is necessary to maintain and enhance public access to the reserve. As Ms CA Ide, counsel for the Commission, pointed out, the building that includes the applicant's restaurant and café also includes a kiosk, public change rooms and public toilets. It is appropriate that members of the public who wish to access these facilities are permitted to park in the car park on public land which is most proximate to the facilities if a parking space is available. They should not be precluded or discouraged from doing so by signage.
Third, the conditions are consistent with strategic coastal planning embodied in State Planning Policy No 2.6 – State Coastal Planning Policy (SPP 2.6). Section 241(1) of the PD Act requires the Tribunal, in determining these proceedings, to have due regard to this Policy.
Clause 4 of SPP 2.6 states that the objectives of the Policy include to "provide for public foreshore areas and access to these on the coast". The policy measures in cl 5.1 state that "planning decisions ... relating to the coast should … maintain and enhance public enjoyment of the coast where this is consistent with the objectives of this Policy". The provision of a dedicated or exclusive car park for patrons of the applicant's restaurant and café would, as Mr Zimmermann observed, result "in the removal of access for members of the public to a portion of the foreshore reserve" and would therefore be contrary to the objective and specific policy measure in SPP 2.6. The Tribunal accepts Mr Zimmermann's evidence that "the access is and ought to be seen as for all members of the public, rather than being restricted to restaurant patrons only". As Mr Zimmermann observed, SPP 2.6 does not suggest that the patrons of a restaurant, which is an appropriate land use on the coast, ought to be treated differently or more preferably to other foreshore users in relation to access to car parking. It is against the general public interest articulated in SPP 2.6 to preclude, or to purport to preclude, members of the public from convenient car parking located on foreshore land.
Mr PD McGowan of counsel submits for the applicant that dedicated or exclusive use of the car park for the applicant's restaurant and café is not contrary to SPP 2.6, because there are 906 other car bays available in four other car parks along an approximately 645 metre stretch of City Beach which enable access to the coast, and the applicant is not "taking anything away" as the car park in question was constructed by the applicant as an addition to the car parking available for the general public.
However, cl 3 of SPP 2.6 states that the Policy "applies to the coast throughout Western Australia, including … land use and development abutting the coast". "Abutting" means "to be adjacent": The Macquarie Dictionary (4th ed, Macquarie, Sydney, 2005) at page 6. "Adjacent" means "lying near, close, or contiguous; adjoining; neighbouring": at page 16. The car park is near or close to the coast and is, therefore, relevantly "the coast" for the purposes of SPP 2.6. In particular, it is a public foreshore area on the coast to which public access should be available in accordance with the objectives of SPP 2.6. The fact that there are other car parks available on the coast and that these provide a means of gaining access to the beach and other parts of the foreshore is not in point. SPP 2.6 contemplates that public access should be available to the car park which is the subject of the proposed licence. Moreover, although the 34 bays are additional to the car parking that previously existed, the car park site previously comprised grassed foreshore area and pathway to which the general public had access.
The Tribunal does not consider that the fact that the applicant constructed the car park means that it should relevantly have dedicated or exclusive use of it in the circumstances of the case. If, contrary to the Planning Study and the design guidelines, there was inadequate public car parking available to cater for the applicant's development, it was appropriate for the applicant to construct additional, proximate car parking, to cater for the vehicles generated by its development. However, given that the site is on public land and, in particular, is the subject of reservation for parks and recreation at both region and local level, it would be inappropriate to confer a dedicated or exclusive right to the additional car parking bays for the applicant's private, commercial development. Furthermore, public funds accounted for approximately half the cost of construction.

Mr Ray Haeren, a town planner who gave evidence on behalf of the applicant, considers that dedicated or exclusive use of the car park by the applicant's restaurant and café patrons is appropriate and that the conditions in dispute are inappropriate. In oral evidence he explained that he holds this opinion for essentially three reasons.
First, the car park has been developed in addition to existing car parking and does not take away from car parking available to the general public. However, the site of the car park was previously available for the use and enjoyment of the general public as parkland and pathway, and the car park is on public land that is the subject of a reservation for parks and recreation.
Second, Mr Haeren considers that the nature of the applicant's development gives rise to a reasonable expectation of being able to park within reasonable proximity. However, the parking assessment undertaken by Mr Behnam Bordbar on behalf of the applicant indicates that there is adequate car parking available within reasonable proximity to the applicant's restaurant and café, even if the subject car park were not dedicated or reserved for the applicant's patrons. Mr Bordbar undertook a traffic survey of five car parks within a maximum distance of 315 metres from the applicant's restaurant and café during peak parking demand on Friday 16 March 2007, Saturday 17 March 2007 and Sunday 18 March 2007. The weather during all surveyed periods was fine and hot, particularly on Sunday 18 March 2007, which resulted in a higher number of beach visitors than on other days. Mr Bordbar's survey indicated that, on average, only 43% of the bays in the car park which is the subject of the proposed licence were occupied during the peak periods and that the average occupation in relation to the other four car parks was 8%, 19%, 25% and 63%. At no point during any of the peak parking periods was the subject car park or any of the other car parks in the vicinity full.
Mr Bordbar's survey showed that, despite the signage at the subject car park indicating that it is for the exclusive use of patrons of the applicant's restaurant and café, on average, approximately 50% of the users of the car park were not the applicant's patrons, but rather, were general foreshore/beach users. Mr Bordbar indicated that, if the signage were removed, the percentage of users of the subject car park who are not patrons of the applicant's restaurant or café is likely to increase beyond 50%, but he could not say to what extent.
Mr Bordbar's parking survey indicates that, even if the removal of the signage would result in patrons of the applicant's restaurant and café being entirely replaced by the general public in the subject car park – which the evidence does not establish – the applicant's patrons would have access to car parking within a maximum distance of 100 – 200 metres. The car park to the south, with 111 bays, is approximately 15 – 100 metres from the applicant's entry and the car park to the north, with 237 bays, is approximately 50 – 170 metres from the applicant's entry. Dedicated and lit pedestrian access is available along the coast from each of the other car parks to the applicant's development. The Tribunal accepts Mr Zimmermann's evidence that 100 – 200 metres is a reasonable and acceptable walking distance for the majority of the public. As noted earlier, the applicant's development includes two dedicated disabled parking bays on site.
The third reason advanced by Mr Haeren was that the applicant's restaurant operates outside daylight hours and that security concerns support the need for the car park to be available for the applicant's exclusive use. However, Mr Bordbar's traffic survey indicates that the car park has capacity to cater for all of the applicant's patrons. Furthermore, there is sufficient capacity to cater for the applicant's patrons within a walking distance of 100 – 200 metres, even if the subject car park were used entirely by the general public. Although the lighting in the subject car park is superior to the lighting in the other car parks in the vicinity, the evidence suggests that light spill from lighting adjacent to the coastal walkway would provide light in the parts of the adjacent car parks closest to the beach. Moreover, as Ms Ide submitted, security is a wider issue affecting all users of the reserve. Although Mr Birch indicated that he had heard anecdotal evidence of some security concerns, he described them as occasional. The Tribunal does not consider that, in the circumstances of this case, security concerns warrant a dedicated or exclusive car park for the applicant's patrons.
In his statement of evidence, Mr Haeren also expressed the opinion that, given that a restaurant/café facility at City Beach is considered to be an acceptable commercial use and that the car park should be seen as part of the overall commercial operation of the restaurant and café, "it would be an understandable expectation of the applicant that any reasonable proposal enhancing the operation of what is recognised as an appropriate land use for the foreshore (by improving its viability, bettering the security of patrons or bolstering patron convenience for example) would likely be supported by approval agencies". The Tribunal does not agree. Reasonable expectations in this context are informed by factual, including historic, circumstances and the applicable statutory and strategic planning context. Significantly, as noted earlier, the design guidelines for the applicant's development stated that it is to take advantage of existing available public parking and that on site parking is not required to be provided. The development application was approved by the Commission in the context of these design guidelines. Furthermore, for reasons discussed earlier, dedicated or exclusive use of the car park is inconsistent with the reservation for parks and recreation under the MRS and TPS 1 and with the strategic coastal planning embodied in SPP 2.6. A dedicated or exclusive car park for patrons of the restaurant and café is not a reasonable expectation in the circumstances of this case.
In his written evidence, Mr Haeren also referred to the availability of dedicated car parking on public land for patrons of the Matilda Bay Restaurant in Crawley and for the surf life saving club at City Beach. However, Mr Zimmermann pointed out that the Matilda Bay Restaurant and its car parking arrangements were approved 40 years ago. Such arrangements are unlikely to be regarded as acceptable if assessed today. As Mr Zimmermann also explained, the dedication of car parking bays on public land for a surf life saving club, the object of which is public safety and which confers a clear community benefit, is fundamentally different to dedication for a private, commercial use.
Finally, the Tribunal notes Mr Birch's evidence that the Council has not received any complaints from the general public about the signage at the site or any request that the signs be altered or removed. However, the general public would have a reasonable (although mistaken) expectation, given that the signs have been erected on public land, that they have been the subject of development approval. The Tribunal also notes Mr Birch's evidence that the Town considers that the signage is appropriate and contributes to the overall functionality of a busy part of the beach. However, Mr Bordbar's traffic survey suggests that, although the signs are ignored by approximately 50% of the users of the car park, there is, nevertheless, sufficient capacity in the car park to cater for the applicant's restaurant and café, given that the car park is not full. In any case, for reasons discussed earlier, the Tribunal considers that a dedicated or exclusive car park would be inappropriate in the circumstances of this case.

Alternative condition

During the hearing, the applicant indicated that it would accept condition 1 if condition 3 were amended to permit signage displaying the words "OCEANUS ON THE BEACH RESTAURANT PATRONS PARKING" or ''OCEANUS ON THE BEACH RESTAURANT PARKING". Mr McGowan submitted that, ultimately, the applicant wants a management tool to enable patrons to park close to the restaurant, but that this does not necessarily have to preclude public access.
However, the Tribunal accepts Mr Zimmermann's evidence that, even without express words of exclusivity, the alternative signage would imply the same. The alternative signage is likely, therefore, to lead to at least some members of the public believing that only the applicant's patrons can park at the site. For reasons discussed earlier, this would be inappropriate and inconsistent with the character of the reservation and SPP 2.6.

Conclusion

The Tribunal has determined that the disputed conditions are for a planning purpose, fairly and reasonably relate to the licence application and are appropriate and reasonable as they are consistent with:
•the nature of the licence;
•the character of the reservation for parks and recreation; and
•strategic coastal planning embodied in SPP 2.6.
It follows that the application for review should be dismissed and the conditions affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent to affix conditions 1 and 3 to the granting of approval to a licence between the Town of Cambridge and the applicant for entry upon and use of Pt Lot 1911 Crown Reserve 16921 (No 195) Challenger Parade, City Beach as a car park is affirmed.

I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER