St Patrick's Community Support Centre and City Of Fremantle - [2007] WASAT 318

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: ST PATRICK'S COMMUNITY SUPPORT CENTRE and CITY OF FREMANTLE [2007] WASAT 318

MEMBER: MS M CONNOR (MEMBER)

HEARD: 25 AND 26 JUNE 2007 (FURTHER SUBMISSIONS RECEIVED 29 JUNE 2007; 6 JULY 2007; 18 JULY 2007; 30 NOVEMBER 2007, 12 DECEMBER 2007 AND 14 DECEMBER 2007)

DELIVERED : 20 DECEMBER 2007

FILE NO/S: DR 58 of 2007

BETWEEN: ST PATRICK'S COMMUNITY SUPPORT CENTRE
Applicant
AND
CITY OF FREMANTLE
Respondent

Catchwords:

Town planning - Development - Alterations and additions to existing building - Relocation of existing services provided by St Patrick's Community Support Centre to the Stella Maris building - Meals facility catering to an average of 40 non-residents per sitting - Associated services - Concept of locality - Amenity; preservation of present and likely future amenity of the locality - Whether, and if so to what extent, the provision of the meals facility will prejudicially affect the amenity of the surrounding locality - Congregation of patrons - Interruptions to the residential peace and quiet - Competition for street parking - Pedestrian safety - Whether car parking is adequately provided to meet the demand generated - Conditions - Imposition of advice notes

Legislation:

City of Fremantle Local Planning Scheme No 4, cl 1.6.1, cl 4.1.2(e), cl 4.2.2, cl .5.1, cl 5.5, cl 5.7, cl 6.1, cl 6.4.3.2, cl 9.4, cl 10.2, Table 2, Table 3, Sch 1, Sch 12, Sch 13
City of Fremantle Town Planning Scheme No 3
Health Act 1911 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Town Planning and Development Act 1928 (WA)

Result:

The application is allowed
The decision of the respondent is set aside and conditional approval is granted

Category: B

Representation:

Counsel:

Applicant: Mr MJ Hardy
Respondent: Mr D McLeod

Solicitors:

Applicant: Hardy Bowen
Respondent: McLeods Barristers & Solicitors

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

BP Australia Pty Ltd v City of Perth (Appeal No 16 of 1993)
Canning Mews Pty Ltd v City of South Perth (2005) 41 SR (WA) 79
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Gosatti Holding Pty Ltd v City of Fremantle (Appeal No 48 of 1999 delivered 17 March 2000)
Miller and City of Stirling [2007] WASAT 247
Ridgecity Holding Pty Ltd and City of Albany [2006] WASAT 187
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994)10 SR (WA) 296

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

St Patrick's Community Support Centre Ltd applied to the State Administrative Tribunal for review of the City of Fremantle's decision to refuse alterations and additions to the existing building and a change of use for a "use not listed" on Lot 31 (Nos 12 - 16) Queen Victoria Street, Fremantle.
The respondent submitted that there was no live dispute in regard to the additions and alterations to the Stella Maris building and that the only issue in contention was the transfer of the facility to provide meals for non-residents from the St Patrick's Community Support Centre at No 9 Parry Street, Fremantle to the Stella Maris Centre at Nos 12 ‑ 16 Queen Victoria Street, Fremantle.
The following three principal issues emerge for consideration in the review:
1.What is the amenity of the surrounding locality?
2.Whether, and if so to what extent, the provision of the meals facility will prejudicially affect the amenity of the surrounding locality.
3.Whether the parking available on-site is adequate for the proposed use, including in particular, the office use in conjunction with the proposed meals facility use.
The Tribunal in considering the issue of amenity defined the locality and considered the impacts of the development on the present and likely future amenity of the locality. The Tribunal did not consider the degree of impact of the proposed development on the amenity of the locality to be such that would warrant refusal of the application at this time. However, in considering the likely future character of the locality, the Tribunal was mindful of the respondent's desire for a more dominant residential mix in the locality and the likelihood of future plans/strategies that would guide development and possibly change the character of the locality. The Tribunal was of the view that, given the nature of the proposed use and the likely change to the character of the locality in the future, a time limited consent for a period of five years was reasonable as it would allow for a further assessment of the impacts of the use on the amenity of locality at that time.
The application for review was allowed and planning consent was granted subject to conditions.

Introduction

St Patrick's Community Support Centre Ltd (applicant or St Patrick's Centre) lodged an application for planning approval with the City of Fremantle (respondent or City) for additions and alterations to the existing building on Lot 31 (Nos 12 - 16) Queen Victoria Street, Fremantle and for a change of use to use portion of the building as a meals facility, providing casual meals for approximately 40 non-residents, twice a day.
The planning application was refused by the Planning Services Committee meeting, acting under authority delegated, at its meeting of 24 January 2007 for the following reasons:
"1.The use is considered to be inappropriate in this locality and inconsistent with the residential character of the area.
2.The impacts of anti-social behaviour on the amenity of residents of the area.
3.Insufficient car parking being provided on site.
4.Insufficient analysis of the impacts of the development on the internal elements of the heritage level 1A building."
The applicant, on 15 February 2007, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.

The subject land

The subject land is located within the street block bounded by Queen Victoria Street, James Street, Beach Street and Parry Street and is referred to as Lot 31 (Nos 12 - 16) Queen Victoria Street, Fremantle.
The existing building on the subject land is commonly known as the "Stella Maris" building. According to a heritage assessment prepared by Philip Griffiths Architects, the building was constructed circa 1905 and is listed on the City of Fremantle [Municipal] Heritage Inventory as a "Management Category 1B" building.
The City's records indicate that the premises have been used by the Stella Maris Seafarers Club to provide short term accommodation, meals, pastoral care, entertainment and recreational facilities to seafarers since 1965. In recent years, the Stella Maris Seafarers Centre has been issued with a certificate of registration as a lodging house under the Health Act 1911 (WA). Under the lodging house registration, the Stella Maris Seafarers Centre was classified as a short term hostel subject to certain conditions. These conditions included specifying the maximum number of rooms to be used as sleeping apartments for lodgers as 24 rooms and limiting the maximum number of lodgers accommodated on the premises not to exceed 36 persons.
Due to major changes in the merchant seafaring industry, the use of the building for the provision of short term accommodation for seafarers diminished. Subsequently, the accommodation was secured by the St Patrick's Centre for short term accommodation for single men wanting to access low cost accommodation. Currently, there are 22 accommodation units located on the first and second floors of the building.

The proposal

The proposed development involves the following alterations and additions to the existing building (see Attachment A):
•creation of new offices within the existing cartilage of the ground floor;
•alterations to ground floor kitchen;
•reception desk to replace canteen on ground floor;
•dining area to replace ground floor lounge and bar;
•new lift;
•new offices and training room within first floor chapel;
•new storage area in basement;
•three additional accommodation rooms.
The applicant intends to relocate the services of the existing St Patrick's Centre, which is located at No 9 Parry Street, Fremantle, to the Stella Maris building. St Patrick's Centre presently provides morning and lunch meals, seven days a week, to an average of 40 persons (non‑residents) per sitting, as well as 6000 meals (annually) to 116 accommodation units. There is also a range of services offered to the users, which include:
•a "Hands on Health" clinic - provides the services of a chiropractor, a podiatrist, a reflexologist, a hairdresser and a general medical practitioner;
•a drug and alcohol social worker and a welfare worker;
•accommodation support services;
•a painting class; and
•a musical and choir group.
The Stella Maris Seafarers services are also proposed to continue on‑site, albeit on a reduced basis compared to their historical levels. According to the evidence of Mr Steve McDermott, the Executive Director of St Patrick's Centre, a small area of the building (Office 5 on Attachment A) will be used to provide limited services, such as internet, library, and perhaps tea and coffee facilities.
The car parking requirements for the development are intended to be satisfied by the provision of seven/eight car parking bays at the rear of the premises, four/five car parking bays at the front of the building and an additional six car parking bays procured at the Beach Street carpark for use by the St Patrick's Centre.

Planning framework

Although this review commenced under the operation of the City of Fremantle Town Planning Scheme No 3 (TPS 3), it was common ground between the parties that the applicable town planning scheme in the determination of this matter was the City of Fremantle Local Planning Scheme No 4 (LPS 4 or Scheme), which was gazetted on 8 March 2007. This position is consistent with observations made by Senior Member Parry in Miller and City of Stirling [2007] WASAT 247 at [43 - 47]. Consideration of the matter under LPS 4 does not make a material difference in terms of either the ability to grant approval or the considerations which need to be taken into account in deciding to give approval.
The Tribunal has determined this matter under LPS 4 and the relevant provisions are set out below. However, I have also considered the relevant provisions of TPS 3 and the same conclusions would be reached if that was the applicable town planning scheme.
The subject land is zoned "Central City" in the Metropolitan Region Scheme (MRS) and "Mixed Use" with a permitted density of "R60" under LPS 4.
Clause 1.6.1 sets out "The Aims of the Scheme" of LPS 4. The general aims of the scheme that are of particular relevance to this matter are:
"…
(d)[to] ensure development promotes a sense of community and encourages participation in community life,
(e)[to] promote a safe and healthy environment,
…
(k)[to] ensure urban form and development contribute to sustainability (environmental, social/cultural and economic),
…
(q)[to] reduce the demand for, and balance the provision of parking, to ensure convenient access while promoting economic, environmental and social sustainability,
..."
The objectives for the "Mixed Use" zone are set out in subclause 4.2.1(e) of the Scheme which states:
"Development within the mixed use zone shall:
i)provide for a limited range of light, service and cottage industry, wholesaling, trade and professional services, small scale retailing of goods and services (ie showrooms, cafes, restaurants, consulting rooms), small scale offices and administration, entertainment, residential at upper levels and recreation,
ii)ensure future development within each of the mixed used zones is sympathetic with the desired future character of the area,
iii)ensure that development is not detrimental to the amenity of adjoining owners or residential properties in the locality, and
iv)conserve places of heritage significance the subject of or affected by the development."
Clause 4.2.2 of the Scheme requires that the zoning objectives of each zone be read in association with the relevant local planning area objectives cited in Sch 12 of the Scheme. The subject land is located within Local Planning Area 2 Sub-area 1. The provisions pertaining to this area relate to height controls and are of no relevance to this review.
The proposed use is a use that cannot reasonably be determined as falling within the type, class or genus of activity of any other use category as set out in "Table 2 - Zoning" of the Scheme. In such cases, cl 4.4.2 provides that the Council may:
"(a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted,
(b)determine that the use may be consistent with the objectives of the zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval, or
(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted."
The Tribunal is of the view that the use may be consistent with the objectives of the "Mixed Use" zone. The respondent informed the Tribunal that advertising has been undertaken that would satisfy the requirements of cl 9.4 of LPS 4.
Clause 5.5.1 of the Scheme requires that where mixed use development is proposed, the non-residential component shall comply with the provisions of the Scheme, except where varied by the provisions for the relevant local planning area.
Clause 5.7 specifies the vehicle parking requirements for all uses and provides, under subclause (c), where vehicle parking provisions are not prescribed for a particular use, the requirement will be determined by the Council. If approval is granted to the proposed use, the Tribunal will be required to determine the appropriate parking requirements, as the proposed use is a use "not specifically mentioned", and as such, parking requirements are not specified in the Scheme.
Clause 6.1 of the Scheme identifies a number of "Special Control" areas. The subject land is located within two Special Control areas:
•Local Planning Area 2 - Fremantle ‑ Sub-area 1 (Sch 12): the provisions pertaining to this area relate to height controls and are of no relevance to this review; and
•Fremantle Port Buffer (Sch 13): the subject land is located within "Area 2" of the "Development Referral Areas". Clause 6.4.3.2 of LPS 4 requires that within Area 2, "any application for development of a sensitive use or any other application that will result in a concentration of people or residential development incorporating 5 units or more within area 2" shall be referred to Fremantle Ports for comment prior to determination of the application.
It is clear that the proposed use would result in a concentration of people, and as such, the matter was required to be referred to Fremantle Ports for comment. In determining this application, the Tribunal is required to have due regard to any advice or comment provided by Fremantle Ports.
A submission was received suggesting the following:
"… that if windows and air-conditioning are to be upgraded then the standards outlined in the Council's policy DBM 10 'Fremantle Port Buffer Area Development Guidelines' be applied. It is also suggested that based on the requirements for Area 2 of the policy that the roof of the building be insulated to minimise noise impacts."
Clause 10.2 of LPS 4 sets out the matters to which consideration is to be given in the determination of an application. The relevant matters relating to these proceedings are as follows:
•the aims, zoning objectives and provision of this Scheme and the MRS (subclause a);
•the compatibility of the use or development within its setting (subclause i);
•the intensity and nature of the proposed use (subclause p);
•any social issues that have an effect on the amenity of the locality (subclause j);
•the preservation of the amenity of the locality (subclause o);
•whether adequate provision has been made for loading, unloading, manoeuvring and parking of vehicles;
•any relevant submissions received on the application (subclause zg); and
•any other planning consideration (subclause zj).

Issues

The respondent submitted that there was no live dispute in regard to the additions and alterations to the Stella Maris building and that the only issue in contention was the transfer of the facility to provide meals for non-residents from No 9 Parry Street, Fremantle to the Stella Maris Centre in Queen Victoria Street.
The following three principal issues emerged for consideration in the review:
1.What is the amenity of the surrounding locality?
2.Whether, and if so to what extent, the provision of the meals facility will prejudicially affect the amenity of the surrounding locality.
3.Whether the parking available on-site is adequate for the proposed use, including in particular the office use in conjunction with the proposed meals facility use.
The Tribunal will consider each issue in turn. The Tribunal was assisted by a view of the subject land during the course of the hearing.

What is the amenity of the surrounding locality?

Clause 10.2.1 of LPS 4 requires the City (and the Tribunal on review) to have "due regard" to, among other things, "the compatibility of a use or development within its setting", "any social issues that have an effect on the amenity of the locality" and "the preservation of the amenity of the locality". "Amenity" as defined in Sch 1 of LPS 4 "means all those factors which combine to form the character of an area and include the present and likely future amenity."
It follows from this definition that the Tribunal is required to consider the proposed development having regard to the preservation of both the present and likely future amenity of the locality.
The respondent identified the "locality" as the "Queen Victoria Street Precinct", being the land bounded by Queen Victoria Street, James Street, Beach Street and Parry Street. There was, however, recognition by the respondent that perhaps the precinct "may be regarded as extending from Parry Street along Queen Victoria Street up to the Fremantle Traffic Bridge", which is reflective of the area identified as "Sub area 1" in "Local Planning Area 2 - Fremantle" in LPS 4.
The Tribunal in Ridgecity Holding Pty Ltd and City of Albany [2006] WASAT 187 considered the concept of locality and observed at [42] as follows:
"The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case."
The Tribunal is not convinced that "locality", in this instance, should be limited to the area as defined by the respondent. Although this area can be considered to be the immediate locality, the Tribunal is of the view that the characterisation of the locality will be influenced by zoning and the local planning area as identified in LPS 4, and as such, a broader area than that defined by the respondent should be identified. Therefore, for the purposes of this review, "locality" should encompass all land as shown in Sub area 1 of Local Planning Area 2 - Fremantle of LPS 4 (refer Attachment B).

In order to assess the impacts of the proposed development on the amenity of the locality, it is necessary in this instance, given the definition of "amenity" in the Scheme, for the Tribunal to undertake an objective inquiry as to the character of the area that represents that state of amenity (see Tempora Pty Ltd v Shire of Kalamunda (1994)10 SR (WA) 296) and an assessment of the likely future character of the area (Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] 150 LGERA 116).
The respondent called a number of witnesses to give evidence as to the character of the existing amenity of the locality. Several of the witnesses were residents of the locality. The Tribunal recognised in Canning Mews Pty Ltd v City of South Perth (2005) 41 SR (WA) 79 at [48], "in undertaking [the] objective inquiry [as to the character of the area that represents the state of amenity] a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity". This approach is contrary to that suggested by the former Town Planning Appeal Tribunal in Tempora v Shire of Kalamunda which suggested that an objective inquiry as to the character of an area can only be informed by expert witnesses (see 304, but cf 305) and not by lay residents. The discordance between approaches was further considered by Barker J in Sunbay Developments Pty Ltd and Shire of Kalamunda where it was determined that "the decision in Tempora v Shire of Kalamunda plainly is not correct, and should not be followed", in respect to this point.
Mr Allerding, an experienced town planning consultant called on behalf of the respondent, characterised the existing locality as one which is "largely non-residential but has been subject to change", as a result of a number of residential developments. Mr Lauder, a councillor of the City, considered the locality to be in a state of transition. He acknowledged that there is a prevalence of commercial and non-residential uses in the locality but considered there to be a strong residential focus, particularly in the street block bounded by Queen Victoria Street, James Street, Beach Street and Parry Street, which was likely to increase over time. Evidence from a number of the residents suggested that, although Queen Victoria Street was a busy street and that there were commercial uses operating in the locality, it was a quiet locality that had a strong residential presence. The evidence also showed that the level of activity at the Stella Maris Centre had increased in recent times and that the current activities were a cause of concern for the residents of the terrace houses at Nos 18 ‑ 24 Queen Victoria Street. It was also submitted that the development potential of the locality had not been realised and that there was considerable potential for further residential development in this locality.
Within the street block bounded by Queen Victoria Street, James Street, Beach Street and Parry Street, the evidence shows that to the south/south-west of the subject land, the current land uses are of a non‑residential nature, including a foundry (No 8 Queen Victoria Street - incorporating lots that front onto Beach Street); Eagle Woolstores and a retail outlet (corner Queen Victoria Street and Parry Street). The Stella Maris Centre in the past provided short term residential accommodation for seafarers visiting Fremantle, and still provides short term residential accommodation for disadvantaged men. Adjoining the Stella Maris Centre, and immediately to the north, there are four terrace houses all used for residential purposes (Nos 18 - 24 Queen Victoria Street). To the west of the terrace houses (rear), and fronting onto Beach Street, 11 short-stay accommodation units are currently under construction. These units enjoy right of way access to Queen Victoria Street via the right of way adjacent to the lot containing the four terrace houses. Immediately to the north, fronting both Queen Victoria Street and Beach Street, is the Homewest "Cold Stores" development (No 26 Queen Victoria Street), which accommodates approximately 150 residents. To the north of the "Cold Stores" is the building commonly referred to as the "Fort Knox" building, which was a wool store converted for use as self-storage units. It was unclear from the evidence as to the use of the remaining lots within the street block (north of the "Fort Knox" building), but given that it was not proffered as residential by the respondent, suggests that it is used for some form of non-residential use.
It was generally accepted that the land on the eastern side of Queen Victoria Street, between Parry Street to James Street and the land north of James Street was predominantly used for commercial purposes, with a particular focus on the automotive industry.
It is also relevant to note that the land within the locality is uniformly zoned "Mixed Use" with a permitted density of "R60" under LPS 4 and was previously zoned "Inner Urban" under TPS 3.
From the evidence and from observations made on the view, the Tribunal considers the existing character of the locality to be predominantly commercial in nature with an identifiable residential component within the street block bounded by Queen Victoria Street, James Street, Beach Street and Parry Street.
As to the likely future amenity of the locality, the respondent argued that there is likely to be a substantial increase in residential development in the locality and that this intensification of residential development will significantly affect the character of the locality.
Mr Lauder and Mr Strachan, who is also a councillor with the City, considered the rezoning of the land to "Mixed Use" in LPS 4 as a reflection of Council's intention to support a change in the desired future character of the locality to a "more residential flavour". Mr Lauder contended that the previous "Inner Urban" zone of TPS 3 promoted commercial development and did not encourage residential use. He further asserted that "the Council would accept wholly residential without commercial development at street level". The respondent claimed that there was considerable interest from owners of land in the locality to the possibility of residential use. The common view of the respondent's witnesses was that the character of the locality was likely to become predominantly residential and that there would be a significant increase in pedestrian traffic in the area, particularly along Queen Victoria Street.
The Tribunal is not convinced that, in the short to medium term, the future character of the locality will be of the nature envisaged by the respondent's witnesses. At present, there is no detailed policy or strategic plan providing direction or guidance as to the desired future character of the locality. The only indicator can be gleaned from the objectives of the "Mixed Use" zone, which are not area specific, and provide for commercial activities at ground floor level with residential above. Given the wording of the objective 4.2.1(e)(i) of the Scheme, it could possibly be argued that approval of residential at ground floor level is not consistent with the objectives of the "Mixed Use" zone. Furthermore, the zoning table (Table 2) of the Scheme does not include any "Residential" use class categories, with the exception of home office, as "P" (permitted) uses within the "Mixed Use" zone, whereas there are a number of "Commercial", "Entertainment" and "Service and Public" use class categories designated as "P" (permitted) uses within this zone. Such uses include home office; bank; office; vet consulting room; consulting room; medical centre; club premises; private recreation; reception centre; warehouse; civic use; community purposes; educational establishment; and place of worship.
The Tribunal is also not persuaded that there is such a significant difference between the provisions of the "Inner Urban" zone of TPS 3 and the "Mixed Use" of LPS 4 that would support the respondent's assertion that the "Mixed Use" zone of LPS 4 would support the desired future character of the locality as a "more residential flavour". Without the existence of specific policy statements guiding development of the locality, one could interpret the previous zoning as being ambivalent in its support of a particular character, as all uses, with the exception of "Retailing - comparison" and "Advertising", were designated as "AA" uses (not permitted unless consent is granted by the Council), whereas under LPS 4, a number of commercial type uses are designated as permitted uses within the locality. Therefore, it could be argued that LPS 4 is more proactive in supporting commercial uses within this locality.
Whilst the Tribunal recognises the likelihood of further residential development within this locality, LPS 4 advocates, as the title of the zone suggests, a mixture of uses with a requirement for commercial activities at ground floor level. The locality is likely to develop into a vibrant mix of land uses where the character of the area includes both commercial and residential activities integrating, particularly at ground floor level, to create a diverse urban form.

Whether, and if so to what extent, the provision of the meals facility will prejudicially affect the amenity of the surrounding locality

The respondent considered the services that the St Patrick's Centre provide to homeless people in Fremantle as worthy and acknowledged that there is a need for the continuation of such services. However, the respondent does not support the relocation of the meals facility to the Stella Maris building as the problems associated with its operation will have a detrimental impact on the amenity of the locality. The respondent submitted that it should be located away from residences and in a position which will cause either no interference, or minimal interference, with nearby residents, and minimal detriment to the amenity of their locality. Support was given to the continuation of the operation at its present location and the respondent explored whether the use could remain in Parry Street. The issue before the Tribunal is not whether the Parry Street site is preferable, but rather, whether the proposed development in its proposed location is acceptable having regard to the planning framework.
The respondent called the residents of the terrace houses at Nos 18 ‑ 24 Queen Victoria Street and several residents who reside in the "Cold Stores" development to give evidence about their concerns relating to the operation of a meals facility from the Stella Maris building.
The residents recited their experiences of the existing meals facility at No 9 Parry Street, and based on these experiences, expressed concerns they considered would be encountered if the meals facility was allowed to relocate to the Stella Maris building.
All the residents had observed gatherings of people outside the existing facility and had experienced intimidating behaviour or physical harassment passing the centre. As a matter of safety, the witnesses felt the need to walk on the opposite side of Parry Street if their journey required them to pass the existing facility.
The residents identified a number of sources of conflict that would result in the disruption to the amenity of the locality. These included:
•The gathering of people outside the premises in the street, on the footpath and on the street area outside the Stella Maris building
It was considered that this characteristic of the existing operation was likely to occur at the new premises. The prospect of encountering patrons of the meal facility on a daily basis caused considerable anxiety with all the residents who gave evidence. There was a feeling of unavoidability of contact with patrons of the meals facility, as pedestrian access to the town centre, train station and local facilities required residents to walk pass the Stella Maris building. The residents feared that their ability to walk down Queen Victoria Street unimpeded would be lost, and held concerns for their safety, as they would be subject to unacceptable behaviour from patrons using the facility.
•Interruptions to the residential peace and quiet
Concern was raised about persons arriving at the centre intoxicated or affected by drugs and being turned away from the meals facility and left to loiter close to the residents' homes. It was considered that such persons had the potential to significantly affect neighbours and passers-by. Concern was expressed about the potential for patrons gaining access to the rear courtyards of the terrace houses from the adjacent laneway and the common open space areas situated in the "Cold Stores" development. The respondent submitted police reports of call-outs to the St Patrick's Centre in Parry Street, dating from 22 June 2005 to 21 May 2007, in an attempt to show the kind of conduct that could be encountered by residents in the locality if the facility was relocated to the Stella Maris building. The reports showed that there was somewhere in the vicinity of 90 calls to the police during this time period, of which a significant number were generated by the centre as a result of persons refusing to leave the premises, for one reason or another. The respondent asserted that the reports confirmed the witnesses' evidence relating to incidents seen at the existing facility and gave support to their apprehensions.
•Parking
It was considered that the number of car parking bays provided to service the meals facility and its associated services were insufficient and that the demand generated by service providers and volunteer workers would not be satisfied on-site and would result in increasing parking pressures in the locality. The Tribunal's attention was also drawn to extent of the present parking problems at the front of the building where delivery vehicles and other vehicles associated with the premises obstructed pedestrian access along Queen Victoria Street. The respondent asserted that the car parking demand generated by the proposed uses will not be satisfied by the amount of car parking bays to be provided, and as such, there will be a significant shortfall in car parking which will have an adverse impact on the amenity of the locality.
•Inappropriate location because of traffic and traffic safety
Queen Victoria Street is the main northern access road into the City, and the Stella Maris building is located close to the junction of Parry Street and Queen Victoria Street. Concern was expressed that pedestrians may seek to cross Queen Victoria Street as a move to avoid contact with patrons congregating outside the meals facility, thus increasing pedestrian conflict with vehicular movements along Queen Victoria Street.
The applicant was at pains to explain to the Tribunal that there were operational differences between the existing and proposed meals facility that would reduce the need for patrons to congregate outside the premises. The applicant explained that the Parry Street Centre opens at 8 am Monday to Saturday, and 9 am on Sunday, and as such, patrons are required to wait outside on the footpath area until the doors are opened. The Tribunal was told that the Stella Maris Centre has been designed so that as soon as a staff member commences work at 6.30 am, the front door will be opened and patrons will be able to access the atrium area. Mr McDermott informed the Tribunal that the atrium area is to be covered and waterproofed, and is intended to provide an area in the building where patrons can gather before and after meals and where smoking is permitted. He considered that the provision of this area will reduce the likelihood of patrons congregating at the front of the building. However, the applicant conceded that there may still be problems and suggested that this perhaps could be dealt with as a condition of an approval requiring the active management of patrons.
The concerns raised by the residents are valid; however, the range and extent of non-residential activities within this locality unequivocally affects the level of amenity that residents within this locality could reasonably expect. The former Town Planning Appeal Tribunal in BP Australia Pty Ltd v City of Perth (Appeal No 16 of 1993) held the view that "the residents adjoining a commercial site are to expect a diminished level of comfort", and in Gosatti Holding Pty Ltd v City of Fremantle (Appeal No 48 of 1999 delivered 17 March 2000), the former Tribunal further stated that "it barely needs to be said that residential uses in close proximity to non-residential uses cannot expect the same degree of amenity as would be found in a homogeneous residential suburb". The Tribunal concurs with these findings and considers this to be the case in this instance. The proposed use is considered to be compatible with the existing use of the Stella Maris building; however, there are likely to be some impacts on the adjoining residential properties. The degree of impact will determine whether the proposed use is acceptable or not.
The Tribunal agrees that the congregation of patrons outside the Stella Maris building is not desirable and would have a detrimental impact on the locality. However, the Tribunal does not agree with the extent of the concern raised by the respondent. The congregation of patrons outside the existing meals facility is sanctioned by the current modus operandi of the existing facility; this would not be so for the Stella Maris building. The Tribunal considers that this problem will be minimised by the proposed changes to the operations of the meals facility, being the opening of the front door at 6.30 am and the inclusion of the atrium area. Although these strategies will not completely eliminate the problem, it is considered that this type of behaviour can be further managed by way of a management plan incorporating measures for dealing with such occurrences. This being the case, there should not be the need for pedestrians to cross Queen Victoria Street before reaching the signalised intersection.
The evidence also indicates that there have been a significant number of calls to the police to attend the existing St Patrick's Centre. The respondent claims that this evidence supports the residents' concerns that the proposed meals facility will adversely affect the amenity of the locality. The records show that a significant number of the calls are generated from the centre as a result of persons refusing to leave the premises. It is the management practice of the centre that patrons perceived to be affected by alcohol or drugs be asked to leave the centre. This approach demonstrates that there are management mechanisms in place, which includes calling the police, to ensure that patrons who could potentially give rise to adverse amenity impacts leave the vicinity within a relatively short period of time, namely, the time for the police to respond. The resultant attendance by the police should not be taken to be an adverse finding against the practice, but rather, a positive management control. It is acknowledged that not all of the call-outs can be attributed to the centre's policy and that there may be some incidents of disturbance that may impact on the amenity of the immediate area. However, in the context of the character of the locality, the historical use of the subject land for the provision of short term accommodation and services for seafarers, and past and present interactions between different use classes within the immediate locality, the Tribunal does not consider that the proposed use will further reduce the amenity of the existing locality.
The issue of car parking was raised as an amenity issue by the residents, and the Tribunal agrees that a shortfall in car parking can have a significant impact on the amenity of an area. However, in this instance, the Tribunal does not consider the issue of car parking to be insurmountable, for the reasons set out below at [63 - 73], and therefore it is not an issue that would contribute significantly to the loss of amenity in this locality.

The Tribunal does not consider the degree of impact on the amenity of the locality to be such that would warrant refusal of the application at this time. However, in considering the likely future character of the locality, the Tribunal is mindful of the respondent's desire for a more dominant residential mix in the locality and the likelihood of future plans/strategies that will guide development and possibly change the character of the locality. The Tribunal is of the view that, given the nature of the proposed use, a time limited consent, in this instance, is reasonable, as it will allow for a further assessment of the impacts of the use on the amenity of locality at that time.
The respondent, in its "without prejudice" draft conditions of approval, proposed that, if the Tribunal were minded to approve the proposed development, a 12-month trial period was recommended. The applicant argued against a trial period as limited as the one suggested, as it would be unable to give effect to an appropriate level of investment in the premises if uncertainty prevailed in relation to the continuity of one of the central purposes of the entire facility. The Tribunal does not consider the suggested 12-month timeframe to be an adequate time period, and is of the view that a five-year time limited consent is appropriate in this instance.

Whether the parking available on site is adequate for the proposed use, including in particular the office use in conjunction with the proposed meals facility use

The respondent submitted that although the car parking provided for the existing use at the Stella Maris Centre was generally adequate in practice, it was not adequate under the terms of the City's local planning scheme. The respondent raised concerns about the adequacy of car parking, given that the proposal involved the establishment of offices for the St Patrick's Centre administration.
Mr Allerding, in his assessment of car parking, concluded that the shortfall for car parking arising from the office redevelopment was minor. Based on the requirement of one parking bay for each 30 square metres of office space as per LPS 4, he calculated that eight car parking bays were required to be provided, whereas seven car parking bays were proposed. He was unable to calculate the car parking bays required for the meals facility as he was unable to ascertain, from the information provided to him, the demand for car parking bays associated with staff required for the proposed meals facility. He submitted that as the provision of meals occurs at the same time as the administration opening hours, there may be an impact on parking.
During the hearing, counsel for the respondent explored, in depth, the staffing and service provider arrangements of the centre. Mr McDermott indicated that staffing levels at the centre was the equivalent to 12 permanent staff. He also indicated that five or six volunteers were required on a daily basis and various other people visited the centre to provide services on a regular basis. These included a local artist, several persons involved in the music group, the "Hands on Health" services (a chiropractor, a podiatrist, a reflexologist, a hairdresser, a beauty therapist, a reiki practitioner, a medical practitioner, and the street doctors). It was also established that the St Patrick's Centre had a bus and a delivery van and that the Stella Maris seafarers' service also had a bus.
The respondent argued that the level of demand far exceeded the available car parking and that the deficiency would have an adverse impact on the amenity of the locality. The residents of the terrace houses at Nos 18 - 24 Queen Victoria Street outlined their experiences with the difficulties of parking in the area and expressed concern about an increase in competition for street parking if the proposal was to proceed. Concern was also expressed about vehicles parking in front of the Stella Maris building on the street verge, obstructing pedestrian movement along Queen Victoria Street.
The planning officers' report to the Planning Services Committee of 24 January 2007 considered the issue of parking and provided the following assessment based on the parking requirements of TPS 3:
"The floor area of the premises is not being extended however there are proposed changes to the use of the floor areas of the building which affect the number of parking bays required. The existing floor plan includes 448 [square metres] of public areas and 25 accommodation rooms, which under Table 3 requires the provision of 92 parking bays equating to a current shortfall of 85 parking bays. The proposed plan includes an administrative area of 257 [square metres], 287 [square metres] of public/dining areas and 22 accommodation rooms, which would require a total of 70 parking bays on site and therefore a project shortfall of 63 parking bays.
While these figures highlight the significant shortfall in parking bays, they do not give a clear indication of the demand for on‑site parking when taking into account the nature of the existing and proposed use of the premises. The current facility does not generate a significant need for parking given that the services provided are offered to single men and seafarers that often do not own or have access to private transport. In this regard the current parking facilities have been sufficient given that the parking requirements are generally limited to staff only.
Although Table 3 indicates the contrary, the proposed use is more likely to generate demand for a greater number of parking bays given the significant expansion of the administrative component which is likely to result in an increase in the number of staff. The applicant has advised that 12 parking bays are proposed of which 10, are in tandem. The tandem bays have not been included in the parking calculation as they are not acceptable for commercial developments and do not comply with the relevant Australian Standards.
The significant shortfall of parking bays proposed is not considered suitable grounds for refusal given that the shortfall is less under the proposed development. It is also noted that no other opportunities exist on the premises to provide additional parking however, the facility is well serviced by public transport."
The respondent argued the assessment should only have considered the present requirements and not made a comparison with the previous use.
The applicant asserted that the car parking requirements for the centre were to be met by the provision of car parking bays on-site, supplemented by the provision of six dedicated car parking bays at the Beach Street carpark. Mr McDermott further indicated that, if necessary, the applicant would acquire additional car parking bays.
From the evidence, it is not clear exactly how many car parking bays can be achieved on-site as the car parking bays referred to in the front setback area appear to be within the verge area and not within the boundaries of the subject land. The planning officer's report considers that seven car parking bays are capable of being provided on-site, a figure which is reproduced by Mr Allerding in his calculations.
Clause 5.7 of LPS 4 establishes the car parking requirements for all "Use Classes", and where parking provisions are not prescribed for a particular use class in Table 3, the requirements are to be determined by the Council. As this proposal does not fall within any specific use class category, the requirements are to be determined by the Tribunal.
The Tribunal does not consider that the provision of 63 car parking bays as required by the previous town planning scheme to be reasonable or reflective of the demand to be generated by the St Patrick's Centre. The Tribunal is of the view that a total of 17 car parking bays should be provided for the centre's purposes. The Tribunal is satisfied with the arrangements that not all car parking bays will be provided on-site and that the shortfall will be met by the provision of dedicated car parking bays at the Beach Street carpark. However, suitable measures need to be in place specifying parking arrangements relating to the use of bays by the staff, volunteers and service providers, and that any use of the area in front of the Stella Maris building does not obstruct pedestrian access along Queen Victoria Street.
In determining the appropriate amount of parking, the Tribunal firstly considered the prescribed requirements for the identifiable use components of the centre, being "Residential Building" and "Office". Under Table 3 of LPS 4, a "Residential Building" comprised of 22 accommodation units would be required to provide 22 car parking bays, and an "Office" accommodating approximately 250 square metres of floor space would be required to provide eight car parking bays. The Tribunal then considered the use and the demand generated by the use. Although by definition the hostel could be classified as a "Residential Building", the short term accommodation provided by the St Patrick's Centre is available only to disadvantaged/homeless men. It is highly unlikely that any of the occupants will have a vehicle, but the possibility should not be excluded, and therefore, the Tribunal considers that two car parking bays be provided to cover for such events. In relation to the "Office" car parking, the Tribunal considered the provision of eight car parking bays to be an appropriate amount. The evidence also reveals that there would be other activities occurring that would generate car parking demands; these include the service providers, the buses and the volunteers. The Tribunal considers that it is reasonable that a further seven bays (two for the service providers, two bus bays and three for the volunteers) be provided to satisfy such demand.

Conclusion

For the above reasons, the Tribunal is satisfied that the meals facility is consistent with the intent of the "Mixed Use" zone and the existing character of the locality and will not further reduce the amenity of the owners of the adjoining residential properties or prejudice the orderly and proper planning of the locality. However, given the nature of the proposed use and the anticipated likely change to the character of the locality, the Tribunal considers that the approval should be time limited for a period of five years.

Conditions

As required by direction of the Tribunal, the respondent prepared "without prejudice" draft conditions to be imposed if the Tribunal considers that approval of the application subject to conditions is appropriate. Nine conditions and five advice notes were submitted and are as follows:
"1.Any damage that occurs during construction to the kerb/footpath shall be rectified at the cost of the applicant to the satisfaction of the City of Fremantle prior to occupancy.
2.All car parking loading areas, and vehicle access and circulation areas shall be maintained and available for car parking/loading, and vehicle access and circulation (deleted as appropriate) on an ongoing basis to the satisfaction of the City of Fremantle.
3.The Applicant take responsibility to ensure that administrative staff, other employees, consultants and volunteers do not park their vehicles in Queen Victoria Street.
4.Prior to occupation of the development, the on-site car parking and loading area(s), and vehicle access and circulation area shown on the approved site plan, including the provision of disabled car parking (or visitor parking), shall be constructed, drained and line marked (if appropriate) to the satisfaction of the City of Fremantle.
5.The Applicant shall ensure that the behaviour of persons attending Stella Maris in connection with the meals facility does not detrimentally affect the amenity of the neighbourhood. In this regard the management shall be responsible for the control of noise, litter and unruly behaviour generated by person[s] attending the premises and shall ensure that attendees leave the vicinity of the premises in an orderly manner to the satisfaction of Council. If so directed by Council, the management is to employ private security staff to ensure that this condition is complied with.
6.All the persons attending the meals facility must enter and exit the building from the Queen Victoria Street entry only.
7.The Applicant install at its own cost a remote control security gate on the entrance of the right-of-way adjacent to the Stella Maris building only allowing access to the residents of 18-24 Queen Victoria Street and Stella Maris vehicles.
8.The Applicant install at its own cost motion sensor security lights in the right-of-way adjacent to the Stella Maris building.
9.Trial period. The use of Stella Maris premises for a meals facility for non-occupiers shall be subject to a trial period of 1 year. The trial period shall only commence in accordance with the terms of the consent and the applicant shall:
(a)Prior to the commencement of the trial period, give written notification to the CEO of the City of Fremantle intention to commence the trial.
(b)Prior to the completion of the 1 year trial period the applicant is to submit an application to Council to continue the use. In determining such an application, regard is to be given to the nature of the trial period, any objections received, the views expressed by Fremantle Police and compliance with conditions of approval.
Advice Notes(s)
(i)The proposed development is to comply with the provisions of the Building Code of Australia.
(ii)Access and facilities for people with disabilities need to comply with the Building Code of Australia and AS1428.1.
(iii)Any works within the road reserve, such as crossovers or pathways, require a separate application to the City of Fremantle.
(iv)Any existing easement or Right of Carriageway or easement should be protected and remain fully accessible at all times.
(v)The approval does not authorise the commencement of any building/demolition works. A building/demolition licence must be obtained prior to the commencement of construction works."
The applicant agreed to proposed conditions 1, 2, 4, 6 and 8 and put forward the following revised wording for proposed conditions 3 and 5:
"3.The applicant is to maintain a standing instruction to administrative staff and other employees, consultants and volunteers to park vehicles either in parking bays provided by the Applicant on site or at the Beach Street Car Park.
5.The Applicant shall take all steps reasonably open and available to it to ensure that the behaviour of persons attending Stella Maris in connection with the provision of meals does not detrimentally affect the amenity of the neighbourhood including the control of noise, litter, and unruly behaviour which may be generated by persons attending the premises. The Applicant shall also take all reasonable steps open and available to it to encourage or direct attendees to leave the vicinity of the premises in an orderly manner."
In regard to proposed conditions 7 and 9, the applicant provided the following responses:
"[7]The applicant cannot accept this condition in the form proposed. It would be prepared to consider the installation of remote control security gate on the entrance to the right-of-way adjacent to the building so as to allow access for necessary parking, management and safety requirements for the operation of the premises and for the residents of [Nos] 18-24 Queen Victoria Street, Fremantle.
[9]The provision of the meals is central to the provision of the range of other services at the Centre. The Applicant does not accept a trial period as limited as this. The Applicant is unable to give effect to an appropriate level of investment in the premises if uncertainty prevails in relation to the continuity of one of the central purposes of the entire facility."
The respondent provided the following response to the applicant's submissions relating to proposed conditions 3, 5, 7 and 9:
3.The applicant's preferred wording would not be capable of practical enforcement by the respondent.
5.A condition as suggested would not be capable of enforcement by the respondent and cannot be agreed to. The condition proposed by the respondent has been applied in relation to similar uses in other jurisdictions and has a reasonable prospect of practical enforcement.
7.It is understood that the applicant's objection is related to a concern that a remote control security gate would not allow escape from the building in an emergency. This concern can be overcome by the installation of an emergency control button on the inside of the security gate.
9. The respondent maintains that a one-year trial period would be reasonable in all the circumstances, and would achieve a reasonable balance between the concerns for detriment to the amenity and accommodating the applicant's desire for relocation of its facilities.

Tribunal's findings relating to conditions and advice notes

Proposed conditions 1, 2, 4, 6 and 8

The Tribunal is prepared to impose proposed conditions 1, 2, 4, and 6 as conditions of approval to the proposed development.
Although the parties have agreed to condition 8, which requires the installation of motion sensor security lights in the right of way adjacent to the Stella Maris building, the Tribunal does not consider this condition to reasonably relate to the development the subject of this application, as the activities proposed operate during the daytime and will not necessitate such a requirement. The Tribunal will not, therefore, impose this requirement as a condition of approval; however, the applicant may, if it wishes, accede to the respondent's request as a sign of amity.

Proposed condition 3

The Tribunal considers that the intent of the condition put forward by the respondent is to ensure that there is some regulatory control over the use of the on-street car parking bays in Queen Victoria Street. The wording as proposed by the respondent is absolute and not reasonable, whereas the wording proposed by the applicant is limited in that it only considers one method of achieving the desired outcome. The Tribunal considers that a more appropriate mechanism would be the development of a parking strategy that addresses all aspects of management relating to the use of car parking bays, including on-site car parking bays, the dedicated car parking bays at the Beach Street carpark, the use of the area in front of the Stella Maris building and the existing on-street car parking bays in Queen Victoria Street.

Proposed condition 5

The Tribunal is of the view that the intended objective of the proposed condition can be better achieve through the development of a management strategy which addresses matters relating to the control of noise, litter and unruly behaviour generated by persons attending the premises, measures to be implemented to ensure that attendees leave the vicinity of the premises in an orderly manner and do not congregate outside the premises, and complaint and report procedures.

Proposed condition 7

There is no dispute between the parties about the installation of a remote control security gate on the entrance of the right of way adjacent to the Stella Maris building, only on the issue of access. The Tribunal considers that it is unreasonable to limit access to the on-site car parking area to Stella Maris' vehicles only, and further, the applicant should be allowed access for management and safety requirements of the operation of the premises. The management of access to the car parking area could also be considered as part of the parking strategy.

Proposed condition 9

The Tribunal has previously discussed this issue at par [61 - 62]. Given the above, the Tribunal will impose a condition time limiting the approval to a period of five years.

Other conditions

In relation to the comments provided by the Fremantle Ports, the Tribunal is guided by Policy D.B.M10 Fremantle Port Buffer Area Development Guidelines (Policy D.B.M10), particularly as neither the respondent nor the applicant made any submissions on the matters raised by Fremantle Ports. Although the proposed development involves alterations and additions to the existing building, it also includes a change of use that will result in a concentration of people. The intent of Policy D.B.M10 is to minimise potential impacts that may arise from the Port. The suggestions made by Fremantle Ports are consistent with Policy D.B.M10 and will assist in achieving the stated objective of the policy, and as such, should be imposed as conditions of approval.

Advice notes

The issue of appending advice notes to subdivision and development approvals was considered by the Tribunal in Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [78 - 79]. The Tribunal found that:
"Such advice notes, … have no statutory status under the [Town Planning and Development Act (1928)(WA)] or any other legislation. A decision to give such 'advice' is not a 'reviewable decision' for the purposes of the Tribunal Act. Moreover, any function or discretion which the respondent had to give 'advice' was arguably not 'exercisable by [it] in making the reviewable decision' and is, therefore, not available to the Tribunal under s 29(1) of the Tribunal Act. In consequence, the Tribunal does not have power, in its determination of review proceedings concerning a subdivision or development application, to review, endorse or give 'advice'.
Moreover, in my opinion, even if the Tribunal had power to give or endorse 'advice', it would be inappropriate to do so, for each of the following reasons. First, if an 'advice note' sets out requirements which are material to a subdivision or development, the requirement should be contained in a condition of approval, which is enforceable as such. Second, if advice is given about one aspect, but not about another aspect of a subdivision or development, the whole process of giving 'advice' is likely to mislead those it is intended to assist. Third, the 'advice' is that of the respondent, or in the present case, of the respondent and of the Council, not that of the Tribunal."
Although the Town Planning and Development Act (1928) (WA) has been repealed and replaced by the PD Act, there has been no change to provisions of the PD Act that would give advice notes any statutory status. For the same reasons as stated in Empire Securities Pty Ltd & Ors and Western Australian Planning Commission, the Tribunal will not append any of the suggested advice notes to this approval.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 24 January 2007 to refuse planning consent for alterations and additions and a change of use for a "use not listed" on Lot 31 (Nos 12 - 16) Queen Victoria Street, Fremantle is set aside and a decision is substituted that planning consent be granted for alterations and additions to the existing building as shown on plans prepared by Creative Design Concept dated April 2006 and for a change of use for portion of the building as a meals facility (as applied for) and associated services on Lot 31 (Nos 12 - 16) Queen Victoria Street, Fremantle subject to the following conditions:
(i)The approval for the meals facility is limited to a five-year period only. The time period shall commence upon the applicant giving written notification of "Intention to Commence Operation" to the Chief Executive Officer of the City of Fremantle.
(ii)So as to ensure that the behaviour of persons attending the Stella Maris Centre in connection with the provision of meals does not detrimentally affect the amenity of the neighbourhood, a management strategy, to be agreed by the parties (or in default of agreement, determined by the Tribunal), is to be implemented to the City's satisfaction prior to the operation of the meals facility and thereafter maintained to the City's satisfaction. The management strategy is to contain, but is not limited to, such matters as the control of noise, litter and unruly behaviour generated by persons attending the premises, measures to be implemented to ensure that attendees leave the vicinity of the premises in an orderly manner and do not congregate outside the premises, and complaint and report procedures.
(iii)A total of 17 car parking bays shall be provided to satisfy the car parking demand generated by this development. Any shortfall of car parking bays not provided on-site shall be met by the provision of dedicated car parking bays at the Beach Street carpark.
(iv)So as to ensure orderly management of the car parking areas both on-site and in the immediate locality, a parking strategy, to be agreed by the parties (or in default of agreement, determined by the Tribunal), is to be implemented to the City's satisfaction prior to the operation of the meals facility and thereafter maintained to the City's satisfaction. The parking strategy is to contain, but is not limited to, such matters relating to the use and management of car parking bays, including on-site car parking bays, the dedicated car parking bays at the Beach Street carpark, the use of the area in front of the Stella Maris building and the existing on-street car parking bays in Queen Victoria Street.
(v)Any damage that occurs during construction to the kerb/footpath shall be rectified at the cost of the applicant to the satisfaction of the City of Fremantle prior to occupancy.
(vi)All car parking loading areas and vehicle access and circulation areas shall be maintained and available for car parking/loading and vehicle access and circulation (deleted as appropriate) on an ongoing basis to the satisfaction of the City of Fremantle.
(vii)Prior to occupation of the development, the on‑site car parking and loading area(s), and vehicle access and circulation area shown on the approved site plan, including the provision of disabled car parking (or visitor parking), shall be constructed, drained and line marked (if appropriate) to the satisfaction of the City of Fremantle.
(viii)All persons attending the meals facility must enter and exit the building from the Queen Victoria Street entry only.
(ix)The applicant install, at its own cost, a remote control security gate on the entrance of the right of way adjacent to the Stella Maris building so as to allow access for necessary parking, management and safety requirements for the operation of the premises (Stella Maris Centre) and residents of Nos 18 - 24 Queen Victoria Street.
(x)Any upgrading of windows and air-conditioning systems should be consistent with the requirements set out in Policy D.B.M10 Fremantle Port Buffer Area Development Guidelines.
(xi)The roof of the building is to be insulated to the satisfaction of the City of Fremantle.
3.The parties have liberty to apply to the Tribunal if agreement cannot be reached in respect to conditions (ii) and (iv) of this approval.

I certify that this and the preceding [88] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER

Attachment A

Attachment B