Steve's Nedlands Park Nominees Pty Ltd and City Of Nedlands
[2006] WASAT 16
•16 JANUARY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION: STEVE'S NEDLANDS PARK NOMINEES PTY LTD and CITY OF NEDLANDS [2006] WASAT 16
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 16 JANUARY 2006
DELIVERED : 16 JANUARY 2006
FILE NO/S: DR 635 of 2005
BETWEEN: STEVE'S NEDLANDS PARK NOMINEES PTY LTD
Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Practice and procedure Leave to intervene Town planning Conditions of development approval Car parking Condition under review required additional onsite car parking Applicants for intervention sought increase in additional onsite parking Whether intervention necessary for proper disposition of proceedings Consideration of Tribunal's statutory planning review functions
Legislation:
State Administrative Tribunal Act 2004 (WA), s 27(2), s 37(3)
Town Planning and Development Act 1928 (WA), s8A(1)
Result:
Leave to intervene refused
Category: B
Representation:
Counsel:
Applicant: Mr MJ Hardy
Respondent: Mr DW McLeod
Applicants for intervention : Ms E Samec
Solicitors:
Applicant: Hardy Bowen
Respondent: McLeods
Applicants for intervention : Kott Gunning
Case(s) referred to in decision(s):
Krasenstein and the Western Australian Planning Commission (2005) 40 SR (WA) 55
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mrs Woodhouse and Mr Muller sought to intervene in planning review proceedings concerning the decision of the City of Nedlands to grant development approval to a mixed commercial/residential development subject to conditions. One of the conditions imposed by the City required an increase in the number of on‑site car parking spaces.
Mrs Woodhouse and Mr Muller wished to intervene in order to give evidence and present evidence from a traffic engineer to the effect that the development would generate a need for a greater number of car parking spaces than calculated by the City. They wished to argue that the number of additional car spaces required by the condition under review should be increased beyond the number sought by the City. The City indicated that it would call Mrs Woodhouse, Mr Muller and their traffic engineer to give evidence in its case.
Following the hearing, the Tribunal gave an oral decision in which it dismissed the application for intervention. The Tribunal considered that intervention was not necessary for the proper disposition of the proceedings. The Tribunal would be able to consider Mrs Woodhouse's and Mr Muller's concerns without intervention. If the Tribunal ultimately considered that the traffic generation of the development would be greater than that calculated by the City, it would increase the number of spaces required.
The Tribunal's reasons taken from the transcript and edited in minor respects to aid clarity were as follows.
Introduction
This is an application by Caroline Claire Woodhouse and Colin Norman Muller for leave to intervene in development review proceedings pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA). That section provides that the Tribunal "may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit".
The application is opposed by Steve's Nedlands Park Nominees Pty Ltd (Steve's), represented by Mr Hardy, and is neither opposed nor consented to by the City of Nedlands, represented by Mr McLeod.
The substantive proceedings are an application for review, pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA), of the decision of the City of Nedlands to grant development approval, subject to conditions, to a mixed commercial residential development at no 171, lot 24 Broadway, and no 36, lot 10, The Avenue, Nedlands (the site). The development incorporates some 129 on‑site car parking spaces. The site currently comprises licensed premises. The development approval was granted subject to 40 conditions. In particular, condition 38 states that:
"A minimum number of 247 car-parking bays are to be provided on site."
Steve's seeks review of this condition. According to its application, it contends that this number exceeds the appropriate number for the development.
Mrs Woodhouse's home, which she owns, is located in the near vicinity of the site, five houses away. Mr Muller resides in a home unit across the road from the site. The home unit is owned by his wife. He and his wife also own an investment property in the building. Of particular concern to Mr Muller is that his building contains only 10 car parking spaces, whereas there are 18 units.
Both applicants for intervention objected to the development application. In fact, Mr and Mrs Woodhouse wrote a detailed, 16 page objection. They also commissioned a traffic engineer, Mr Mohammed Bordbar, to undertake a traffic and parking assessment of the application which was lodged with the City and was apparently before the City when it granted conditional development approval. Mr Bordbar also made a presentation to the council meeting at which development approval was granted.
Evidence
Mrs Woodhouse states in her affidavit that, as a nearby resident, she is opposed to any reduction in the number of car spaces stipulated by condition 38. Furthermore, she contends that 247 on‑site car spaces is inadequate, because the City's calculation of the minimum number of on‑site car parking spaces required in accordance with the City of Nedlands Town Planning Scheme No 2 (TPS 2) has erroneously excluded bar areas and a cellar area. She considers that the City's decision appears to assume that only restaurant patrons will use the bar, whereas its physical characteristics are such that that is unlikely to be the case. She has also been told that the cellar would be used for regular wine tastings.
Mrs Woodhouse is also concerned that under condition 38, as imposed by the City, the developer is free to allocate as many of the 247 on‑site spaces to the residential units as it wishes and thereby, to detrimentally affect residential amenity because of an excess allocation to residential uses as opposed to commercial uses. Mrs Woodhouse is concerned that the overspill from the development generally along The Esplanade, and in front of her house, will adversely affect her amenity, and place added pressure on an already strained public car parking provision in the vicinity. She believes that the City does not appreciate the impact that the development would have, in terms of car parking, on her home and on her amenity.
Mr Muller also considers that it is "improbable" that the bar area will only be used by the restaurant patrons and that the number of car parking spaces on‑site should be increased to take into account the bar area. On the basis of the traffic and parking survey and report prepared by Mr Bordbar, and on his own experience and photographs that he has helpfully provided as part of his affidavit, Mr Muller considers that the public car parking available in the vicinity is already often full. Indeed, often almost beyond capacity. There is no capacity, he considers, to absorb any further overflow parking generated by the development, not catered for on site.
Finally, he believes that the development would detrimentally affect his ability to find tenants for his investment unit, and potentially his and his wife's ability to sell their units if they should so wish.
Mr Bordbar also gave evidence in support of the application for intervention. Both he and Mrs Woodhouse depose that if leave to intervene were granted, Mr Bordbar would give evidence on behalf of the interveners. In his affidavit, Mr Bordbar expressed concern both about the dimensions of the proposed 129 on‑site car bays, the inadequacy of the 247 bays required by the City.
Mr Bordbar considers that the proposed bays do not accord with the minimum dimensions required by TPS 2 and the Australian Standard. If the bays were extended in depth so as to comply, it's likely that this would impact on the ability of drivers to safely circulate.
Mr Bordbar considers that the development gives rise to a need for the provision of 565 on‑site bays under TPS 2, which he considers should be reduced by 15% because of cross‑utilisation, thereby resulting in a need for 480 spaces.
It appears that the 233 space difference between Mr Bordbar's calculation and the City's requirement, in condition 38, is principally due to the inclusion by Mr Bordbar and the exclusion by the City of a verandah, a lounge area and a wine cellar.
Condition 39 of the approval appears to exclude use of the verandah as licensed premises. It provides that:
"The use of any development on the site is not to be commenced until the existing liquor licensing conditions have been reviewed, and the approved number of patrons applicable to the licensed area being reduced to a number proportionate to the area subject to, or proposed to be, subject to a liquor licence, and not to extend beyond the proposed bar and restaurant area."
If the verandah area is not included in the car parking calculation, Mr Bordbar's calculation is that the shortfall in car parking required by TPS 2, is 218 spaces, as opposed to the City's calculation of 118 spaces.
It appears that the lounge bar area Mr Bordbar refers to is the same area as that which Mrs Woodhouse and Mr Muller consider should be included in the car parking calculation, because of its size and physical configuration. The cellar area appears to also be the same referred to by Mrs Woodhouse.
Finally, like Mrs Woodhouse, Mr Bordbar is concerned that condition 38 would enable the developer to allocate an excessive number of spaces for residential uses, thereby exacerbating the parking problem in the locality.
Submissions
Mr Ernest Samec, counsel for the applicants for intervention, submits that the intervention is necessary to assist the Tribunal to properly dispose of the review and to produce the correct and preferable decision under s 27(2) of the State Administrative Tribunal Act 2004. He submits that his clients' methodology for car parking calculation differs markedly from the City's, and that the Tribunal would be denied evidence relevant to the review if his clients were not granted leave to intervene.
Mr Samec also submits that the evidence of Mr Bordbar and of his clients needs to be given to the Tribunal through an independent party, namely, the applicants for intervention, because even if called by the City, there would be, in his words, "a real risk that the Tribunal will not receive evidence it requires on the central issue of parking". In particular, Mr Samec submits that there is a real risk that the City would tailor or exclude in some way some of the evidence that his clients wish to give, and that which Mr Bordbar would give if called in the applicants' for intervention's case.
Mr Michael Hardy, counsel for Steve's, submits that there is no proper basis for intervention in this case. The issues of adequacy and sufficiency of the proposed car parking are already before the Tribunal. The City intends to actively contest the proceedings, thereby providing a proper contradictor. Further, the fact that there is a traffic engineer who has a different opinion as to how to calculate minimum car parking provision to that of the experts retained by the parties does not, in itself, mean that the Tribunal cannot proceed to dispose of the substantive application on an informed, insightful and critically‑analysed basis.
Mr Hardy contends that Mr Samec's submission that the evidence of his clients and of Mr Bordbar would be tailored, or in some way excluded, does not "hold water", particularly once a witness is before the Tribunal.
Mr Dennis McLeod, counsel for the City, indicated, as noted earlier, that his client neither consented to, nor opposed the application. He appeared, essentially, to assist the Tribunal to determine the applications for intervention. He did, however, indicate that his client is proposing to argue that the proposed car parking provision of 129 car bays is inadequate, and that the shortfall would have adverse amenity consequences in the locality of the site.
He did not accept Mr Samec's submission that the City would tailor or somehow exclude evidence from Mr Bordbar and his clients. He indicated at the outset of the hearing today, that the City would not only, if the application for intervention were unsuccessful, call Mr Samec's clients to give evidence, but would also call Mr Bordbar to give evidence in the City's case. Mr McLeod indicated that the initial calculation of car parking requirement, undertaken on behalf of the City in its assessment, came from a town planning officer, not from a traffic engineer.
Should leave to intervene be granted?
In Krasenstein and the Western Australian Planning Commission (2005) 40 SR (WA) 55, [2005] WASAT 201, the Tribunal held, at [24] and [25], as follows:
"The juxtaposition of the power to allow intervention in proceedings under s 37 of the SAT Act, with the power to allow joinder as a party under s 38 of that Act, and the terms of subsections (1) and (2) of s 37, suggest that intervention under the SAT Act is principally concerned with the advancement of the public interest, as opposed to private interests."
"The Tribunal accepts Mr Hotchkin's submission that leave to intervene under s 37(3) of the SAT Act should be granted where intervention is necessary for the proper disposition of the proceedings. Where is it necessary for that purpose, intervention is in the public interest. A circumstance in which the proper disposition of the proceedings would require the intervention of a person is where, in the absence of intervention, there would not be sufficient material before the Tribunal to enable it to dispose of the proceedings on an informed, insightful and critically‑analysed basis."
The present application for intervention makes essentially the same submission as that advanced in Krasenstein and the Western Australian Planning Commission, namely, that intervention is necessary for the proper disposition of the proceedings. In particular, intervention is necessary to ensure that the Tribunal has before it the issue of whether the minimum number of car parking spaces required by condition 38 should be increased beyond 247, rather than simply maintained at 247, and that it has evidence addressed to that issue presented by an independent party to the City.
The Tribunal notes, in passing, that the question of whether the shortfall in on‑site parking determined in accordance with TPS 2 is 351 spaces (as contended by Mr Bordbar if the verandah is included as licensed premises), 218 spaces (according to Mr Bordbar, if the verandah is excluded) or 118 spaces (according to the City), might well prove academic. Condition 38 as imposed, or as the applicants for intervention would like to have it imposed, that is, with a greater number, is tantamount to refusal of the application, unless the City has a policy of accepting cash‑in‑lieu of car parking, the circumstances of the case accord with that policy and the Tribunal considers that payment of cash‑ in‑lieu is likely to result in an appropriate, proximate and sufficient number of car parking spaces to make up the shortfall.
However, putting aside that observation, the Tribunal does not consider that intervention is necessary for the proper disposition of the proceedings, or to enable it to have sufficient information or evidence before it to dispose of the proceedings on an informed, insightful or critically‑analysed basis. The Tribunal would have come to this view even absent Mr McLeod's indication this morning that the City was prepared to call Mr Bordbar in its case. However, the Tribunal is fortified in its view by that indication.
The Tribunal accepts Mr Hardy's submission that a mere difference of opinion or approach between experts, whether it be significant or subtle, does not, in itself, mean that intervention is necessary in the public interest for that different expert opinion to be heard. Experience indicates that differences of professional opinion and approach are hardly uncommon. What matters is whether, absent hearing a different professional opinion and approach called by a potential intervener, and submissions drawn by the intervener from that evidence, the Tribunal is able to properly perform its statutory planning function.
The central issue in this review is, as both parties accept, what is the likely traffic generation of the development, determined in accordance with TPS 2? The Tribunal will be assisted in the resolution of that issue by lay and expert evidence called by Steve's and the City. As noted earlier, the City will not only call, if the application for intervention is unsuccessful, the applicants for intervention, but also Mr Bordbar.
Even absent Mr Bordbar, Mrs Woodhouse and Mr Muller would be able to raise their concerns for the attention of the Tribunal. In particular, it is likely, in light of the evidence given to the Tribunal on this application, that they would raise the very issues on account of which it is contended that the number of car parking spaces required on site should be extended by condition 38.
In order to properly perform its statutory function, the Tribunal would have to consider Mrs Woodhouse's and Mr Muller's concerns, in the context of the central issue. It would, if appropriate, even absent Mr Bordbar's evidence, have required the assistance of the traffic experts called by the parties, and the parties themselves, or their representatives, in considering these concerns quite apart from the case as sought to be advanced by the parties.
Ultimately, it is for the Tribunal to determine whether the application warrants approval. And it must be satisfied, in light of the concerns raised, that it is appropriate to grant approval subject to the conditions.
To take an example, if the Tribunal ultimately was satisfied, even without Mr Bordbar's evidence, that the characteristics of the bar area that concern the applicants for intervention are such that it is likely to be used as licensed premises, plainly that area needs to be taken into account, subject to the requirements and concessions and discretion within the Town Planning Scheme. The Tribunal would not require intervention in order to do so. The same would be the case for the other areas identified.
Similarly, within the context of the central issue, the Tribunal would look to see whether the conditions, as imposed, are likely to result in additional car parking on street, because the developer could, as the applicants for intervention fear, allocate an excessive number of spaces to residential uses, at the expense of commercial uses. It would be within the province of the Tribunal on review, for example, to impose another condition, if that's appropriate, to avoid that prospect.
Ultimately, the Tribunal, in undertaking the review, is not bound to determine that the traffic generation of the development is 247 spaces, or a lesser number, if the correct and preferable decision is to the contrary.
The Tribunal rejects Mr Samec's submission that there is a risk that if his clients were not granted leave to intervene, his clients' evidence and that of Mr Bordbar would be tailored or potentially partially excluded, because the witnesses were not being called by an intervener, but rather by the local government authority.
Quite apart from the fact that the Tribunal would not, without strong evidence, infer that a responsible authority would tailor evidence or preclude an objector or an expert from giving the evidence that they wish to give to the Tribunal, much less one represented by counsel, such as the City's solicitors, proceedings in this Tribunal are neither quite adversarial nor inquisitorial in nature. The reality is that they are a hybrid. As Mr Hardy and Mr McLeod pointed out, it is the usual practice in development and other review proceedings for experts to be required by the Tribunal to confer prior to a hearing, to indicate in a written form, matters agreed, matters not agreed and the reasons for any disagreement, and to give evidence concurrently at the hearing. It is the usual practice of the Tribunal to require experts to answer questions from the Tribunal and then to ask each other questions they consider to be relevant and of assistance to the Tribunal in undertaking its statutory task. Counsel for the parties of course perform an important role in asking questions after that process is complete. However, it is simply inconceivable in this Tribunal that an expert, such as Mr Bordbar, or objectors, such as the applicants for intervention, would not be able to express their evidence as they wish, and for the Tribunal to somehow not take it into account.
Finally, I note that the proceedings have been referred to mediation this morning. While that fact has not been referred to by the representatives of the parties, the Tribunal should note that if as a result of the mediation the parties to the proceedings, namely the applicant for development approval and the City, were to agree that the review should be determined by consent, and, therefore, there is no proper or effective contradictor, it might well be that the applicants for intervention could renew their application. I should also note that given that the application for intervention has been made, it would not be appropriate for the Tribunal to determine the proceedings by consent as a result of mediation without the interveners being given an opportunity to review the agreed position of the parties, should it come to that, and to consider their position.
However, the Tribunal is not satisfied that in this case, at this time, intervention is necessary in the public interest for the proper disposition of the proceedings.
Orders
For that reason, the Tribunal makes the following order:
The application for intervention made by Mrs Caroline Woodhouse and Mr Colin Muller is refused.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
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