STEWART and CITY OF ALBANY - [2009] WASAT 45

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: STEWART and CITY OF ALBANY [2009] WASAT 45

MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 17 MARCH 2009

FILE NO/S: DR 367 of 2008

BETWEEN: ROSS STEWART
RITA STEWART
Applicants
AND
CITY OF ALBANY
Respondent

Catchwords:

Town planning - Application for planning consent - Residential long-stay accommodation - Short-stay holiday accommodation - Sustainable tourism industry - Strategic (prime) site

Legislation:

Caravan Parks and Camping Grounds Regulations 1997 (WA)
City of Albany Town Planning Scheme No 1A, cl 1.6, cl 1.7, cl 1.7(d), cl 3.4, cl 4.10, cl 7.8A, cl 7.21, cl 7.21.4, Appendix 1
Planning and Development Act 2005 (WA), s 252(1), s 253(1)(c)
State Administrative Tribunal Act 2004 (WA), s 29(3)(c), s 87(4)

Result:

The application for review is dismissed

Category: B

Representation:

Counsel:

Applicants: No appearance
Respondent: No appearance

Solicitors:

Applicants: No appearance
Respondent: No appearance

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The application for review was lodged against a condition of consent imposed by the City of Albany in relation to 16 park home units at 3 21 (Lot 1461) Birss Street, Emu Point, Albany. The condition required that six of the units proposed for residential longstay accommodation revert to shortterm holiday accommodation.
In undertaking this review, the State Administrative Tribunal examined the respective position of the parties, the background to the proposal, the relevant legislative and policy provisions and matters relating to the statistical breakdown of the existing and proposed accommodation units for shortstay and longstay purposes. The matter of the awarding of costs was also examined and dismissed.
The State Administrative Tribunal determined that to approve further residential longstay accommodation on a strategic (prime) site would be contrary to the intent of both the government endorsed Tourism Planning Taskforce Report and the City of Albany's Tourism Philosophy Policy.
The State Administrative Tribunal also determined that there was no planning reason to justify an increase in the number of longstay accommodation sites on public land that is leased to the operator, and that to do so would not be in the best interests of the future of tourism in the City of Albany.
The application for review was dismissed.

Introduction

The application for review was lodged on 26 September 2008 by Mr Roy Winslow of the Harley Survey Group Pty Ltd, on behalf of Mr Ross Stewart and Mrs Rita Stewart (applicants) against the failure of the City of Albany (City, Council or respondent) to determine an application for planning consent within the 60day time limit prescribed in s 253(1)(c) of the Planning and Development Act 2005 (WA) (PD Act).
In the application heard before Member James Jordan on 23 October 2008 it was ordered, amongst other things, that:
1.The applicants have leave pursuant to r 15 of the State Administrative Tribunal Rules 2004 (WA) to amend the grounds of the application for review when the advice of the conditions imposed on the proposed development are received from the City of Albany.
Following a decision by the City on 30 October 2008 to grant planning consent for extensions to the existing caravan park at 3 21 (Lot 1461) Birss Street, Emu Point, Albany (subject land), a new application for review, dated 4 November 2008, was lodged against Condition C1 of the consent. Condition C1 states:
CThe park home units are to be made available for holiday accommodation purposes and shall not be occupied by any one person for a period exceeding 3 months within any 12 month period.
It is this second application for review, lodged under the provisions of s 252(1) of the PD Act, to which the Tribunal will have regard in determining this matter.

Subject land

The subject land is known as the Emu Beach Holiday Park and is situated on Crown land (Reserve 22698) which has been vested in the City. The City has in turn leased the land to the applicants as operators of the Park.
At the present time there are 176 sites comprising 156 holiday shortstay sites (camp sites, caravans and units) and 20 residential longstay sites (caravans and units).

Legislative and policy framework

The subject land is zoned 'tourist/residential' in the City of Albany Town Planning Scheme No 1A (Scheme or TPS 1A).
Of relevance are the following documents:
(a)the 'draft' City of Albany Tourist Accommodation Planning Strategy (Accommodation Strategy);
(b)the Tourism Planning Taskforce Report (Taskforce Report);
(c)the City of Albany Tourism Philosophy Policy (Tourism Philosophy); and
(d)the City of Albany Local Planning Strategy (ALPS).

Respondent's position

The position of the respondent is outlined in a statement of issues, facts and contentions dated 18 November 2008. It contends:
(a)the Taskforce Report and the Tourism Philosophy clearly express the need to protect 'tourism' sites from residential (longterm) use. The Taskforce Report recommends a total restriction of residential use in 'strategic' tourism areas;
(b)the City adopted the Tourism Philosophy as a Scheme policy on 19 March 2002 and the 'draft' Accommodation Strategy on 16 September 2008. As the two documents do not contradict each other, they were both taken into account in reaching a decision on the matter;
(c)the decisionmaking documents recommend that a 'prime' site, such as the subject land, be protected from residential uses with the Taskforce Report suggesting no residential use and the Tourism Philosophy and the 'draft' Accommodation Strategy recommending a maximum 10% residential use; and
(d)the application proposed a residential component in excess of the maximum 10% allowed for residential use on a 'prime' site.

Applicants' position

The position of the applicants is outlined in a 'submission in support of application' dated 26 November 2008 as prepared by the Harley Survey Group. It suggests that the Tribunal:
(a)set aside consideration of the 'draft' Accommodation Strategy on the grounds that the document as advertised is likely to be substantially modified prior to adoption;
(b)determine the weighting that should be given to the Tourism Philosophy in deciding the application;
(c)remove Condition C1 of the planning consent of 30 October 2008 on the grounds that the proposed six (6) park homes to be used for permanent occupancy will not adversely affect the provision of holiday accommodation on the property; and
(d)determine whether costs should be awarded to the applicants as it appears that the respondent was able to approve the development under prevailing policy in January 2008, as well as permit the six permanent sites in October 2008.

Planning issues

The principal planning issue in this case is:
(a)Are the planning circumstances in this case sufficient to justify the proposed increase in the number of residential longstay sites on the subject land?

Assessment of the proposal

Background

The following background is relevant:
(a)an 'application for planning consent' was lodged with Council by Concept Building Design on behalf of the applicants on 11 October 2007. This application was for six park homes for longstay (permanent) accommodation and 10 park homes for holiday shortstay accommodation at an estimated cost of $2.5m;
(b)on 15 January 2008 the following resolution was passed at an Ordinary Meeting of Council:
That Council lay this matter on the table to provide adequate time for the lessee of the Emu Beach Holiday Park to provide suitable explanatory documentation, together with a full briefing to Councillors, on the long term planning for the development of the Emu Beach Holiday Park site.
(c)as a result of (b) a briefing session was provided to Councillors on 5 February 2008;
(d)at an Ordinary Meeting of Council on 19 February 2008 the following resolution was passed:
That consideration of the application for Planning Scheme Consent to vary the activities carried out on 16 bays (converting from powered bays to Park Homes) within the Emu Beach Holiday Park be deferred until such time as Council has adopted a Policy on the 'Management of Commercial Leases on Council Land' which incorporates specific provisions on the regulation of residential activity in caravan parks that is congruent with the recommendations of the Ministerial Taskforce Report on Tourism Planning and the Proposed Tourism Accommodation Strategy.
(e)an application for review was lodged with the Tribunal on 26 September 2008 against the failure of the City to determine the matter within the 60day time limit prescribed by s 253(1)(c) of the PD Act;
(f)at a directions hearing at the Tribunal on 23 October 2008 the applicants were granted leave to amend their application for review following advice from Council on the conditions imposed on the proposed development;
(g)at an earlier Ordinary Meeting of Council on 21 October 2008 it was resolved to issue a Notice of Planning Scheme Consent. The consent was subject to a number of conditions, including that all 16 park home units 'are to be made available for holiday accommodation purposes and shall not be occupied by any one person for a period exceeding three months within any 12month period' (Condition C1). The approval was relayed to the Harley Survey Group on 30 October 2008; and
(h)a new application for review, dated 4 November 2008, was lodged with the Tribunal on 5 November 2008.

Legislative and policy provisions

Town Planning Scheme No 1A (District Scheme)

The 'objects' of the Scheme are outlined in cl 1.6 and include:
1.6The general objects of the Scheme are:
(a)to control, regulate and coordinate public and private development …;
(b)to reinforce the existing pattern of land uses within the District having regard to the present and future circumstances and to define by zoning the future land use and development types permitted and to guide investment decisions of intending developers, public authorities, residents and business people;
…
(e)to provide for and promote increased population growth within the District and indicate a framework to accommodate the development thereof by providing a reference for and mechanisms to initiate and enable growth and change;
…
The 'particular objects' are outlined in cl 1.7:
1.7The particular objects of the Scheme are:
…
(d)to establish guidelines for coordinated planning and development for residential growth in Emu Point …;
…
(f)to establish guidelines for future residential development and redevelopment;
…
The subject land is zoned 'tourist/residential' and 'holiday accommodation' is classified as an 'AA' use in Appendix 1 (Zoning Table). An 'AA' use is defined in cl 3.4 as:
[A] use that is not permitted unless planning consent to it is granted by the Council.
Under cl 4.10 the Council can grant variations to site and development standards and requirements:
4.10… if a development is the subject of an application for planning consent and does not comply with a standard or requirement prescribed under the Scheme, the Council may, despite that noncompliance, approve the application unconditionally or subject to such conditions as the Council thinks fit.
The matters to be considered by Council in considering an application for planning consent include:
7.8A…
(e)any relevant policy or strategy of the Commission or any relevant planning policy adopted by the Government of the State;
…
(zb)any other planning consideration the Council considers relevant.
The power for the Council to make policies is provided for in cl 7.21:
7.21.1In order to achieve the objectives of the Scheme, the Council may make Town Planning Scheme policies relating to parts or all of the Scheme area and relating to one or more of the aspects of the control of development.

City of Albany Tourism Philosophy

At the Ordinary Meeting of Council on 19 March 2002 it was resolved to adopt the following philosophy when dealing with applications for tourism projects:
•Council not support requests for the conversion to freehold of those Crown reserves throughout the City of Albany over which Council maintains the management order and the reserve is leased to private individuals for the purpose of developing and operating tourism activities.
•The terms 'short stay' and 'tourism accommodation' shall mean any residential activity where an individual person/family does not occupy the premises for more than 3 months in any 12 month period, whether that period is consecutive or intermittent.
•Prime tourism sites are those freehold, zoned land parcels which front, or are only separated by a coastal and/or road reserve, the coast or Albany's harbours.
•The percentage of residential units in a tourism development should be inversely proportionate to the tourism value and prime nature of the site with maximum percentages of 10% for prime sites and 50% for less attractive locations. The residential units should be evenly distributed throughout the site (with no accommodation of residential units along particular frontages, or the development of residential enclaves).
•Where residential units are being mooted within a tourism site, the subject land must be connected to a reticulated sewer system approved by the Minister for Water Resources and that notices to that effect be published in the local newspaper.
•Where units within tourist sites are to be sold to investors, the transfer of ownership should only be by way of a built strata and no strata clearances should be supported by Council until the resort infrastructure (restaurant, landscaping, recreational facilities, etc) has been completed in accordance with approved plans.
•Council advise the Western Australian Planning Commission that it will not generally support any request from developers to subdivide tourism sites to create freehold or vacant survey allotments.
•When considering requests from landowners to rezone sites for tourism projects, the sites be zoned 'Tourism Development' and appropriate clauses be inserted into the Scheme(s) requiring the preparation of an outline development plan for the site prior to any development being approved by Council.
AND
That Council adopt the above guideline as a Town Planning Scheme policy pursuant to clauses 7.21 of the City of Albany Town Planning Scheme 1A and 6.9 of the City of Albany Town Planning Scheme 3.
Of relevance to the Tribunal is that the Tourism Philosophy was adopted as a formal policy under the Scheme provisions.

Albany Local Planning Strategy

Under this Strategy (ALPS) the following statements are relevant:
5.2Tourism
Planning Principle: Albany will remain the premier tourism destination on the south coast and will provide the complete tourism experience.
…
5.4.1Destination
Planning Objective: To retain existing and facilitate new tourism developments that are sympathetic to community and environmental considerations.
5.4.2Accommodation
Planning Objective: Promote the development of sustainable tourist accommodation.
Under the actions proposed by the ALPS, it includes:
Ensure that new tourism and other developments and/or land uses do not threaten the natural and cultural heritage values that make the City so unique and desirable as a tourist destination. This includes ensuring that tourism and residential developments on the coast do not place adverse pressure on foreshore areas.

Tourism Planning Taskforce Report

This report, which was endorsed by Cabinet in January 2006, has four 'terms of reference'. The second of these is the most relevant to this matter:
Term of Reference 2:
Assess the implications of allowing a mix of permanent and tourist accommodation on land zoned for tourism purposes in terms of:
•reducing the growth of tourist accommodation in relation to future demand;
•potential loss of highvalue tourism land (in close proximity to and with accessibility to areas of high environmental, cultural and scenic value or other locations of strong tourist interest);
•potential land use conflicts between shortstay and permanent occupants compared to any benefits that a more mixed community may bring; and
•other planning issues in relation to allowing a mix, such as distance from residential services and the provision of infrastructure.
The conclusions of the Report included:
•The introduction of a residential component to a tourist development site has the potential to result in a loss of tourist zoned land, a reduced level of tourism service and tourist experience, introduction of urban infrastructure, and/or the lack of access to residential services. These are all implications of potential significance on strategic tourism sites.
•There is potential for conflict between shortstay tourists and residents in a tourism facility due to the different objectives of the two groups. This conflict can manifest itself in many ways but has two primary outcomes:
-devaluation of the tourism experience at the development through a nontourism character or ambience; and
impact on the amenity of the resident due to different lifestyle priorities to shortstay tourists, who in many cases have a higher recreation priority.
•The rezoning of a tourism site of strategic value to facilitate residential use will result in a reduction in the ability to accommodate future tourism demand and have a detrimental impact on tourism growth
…
•Where a residential use component is supported on a nonstrategic tourism site, the taskforce concluded that a maximum of 25 per cent residential use only should be considered …
On page 42 of the Report it states:
The taskforce acknowledges that its conclusions in respect to sites deemed to be of strategic value may be viewed in some sectors as not addressing the financial issues associated with tourism development, and as such, not facilitating the early development of these sites. However, it is considered that the development of such sites for tourismonly purposes is in the best interest of achieving a sustainable tourism industry in the long term.
…
The taskforce noted that, on balance, there are detrimental implications associated with allowing a mix of tourist and permanent accommodation on tourist zoned land where that land has an inherent tourism value and/or is one of a limited number of development opportunities in a locality, ie a strategic site.
On page 72, in relation to 'strategic' tourism sites, it advises:
Where a site is identified as a strategic site:
No residential use is permitted and all development to be subject to lengthofoccupancy restrictions, except where the development is an integrated touristresort, and management and design to promote operation as a tourism facility.

Tourism Accommodation Planning Strategy (Draft)

This document has been prepared by the City in order to address tourism demands to 2020. It advises:
This study is borne out of the recognition by the City of Albany of the need to preserve and plan tourism infrastructure into the future to promote Albany as a viable tourism investment and visitor destination, with the capability to attract and cater for a broad range of tourism market segments. The strategy acknowledges the need to plan for a range of accommodation styles and star ratings throughout the City to accommodate growth, whilst recognising that the development of these sites for tourism purposes is complicated by potential competing land uses and the investment limitations placed on tourism developers.

Under Figure 14 (Preferred Development Options - Prime Sites), the recommended development option for the subject land is for a caravan park with 10% residential and 20% chalets and with a 'caravan/camping' zoning.

The matter of the staged development and statistics

In the original 'application for grant of planning consent', dated 11 October 2007, the enclosed material included a fourstage development program (Master Plan) amounting to some $8.96m. The 'application for review' before the Tribunal relates to Stage 1 only, at an estimated cost of $2.5m.
The existing situation on the ground, and what is proposed at full development of the Master Plan, is contained in a table included in the respondent's response, dated 2 December 2008, to the applicants' response of 26 November 2008.

TABLE 1

Accommodation Category	Existing	Proposed (at full development of Master Plan)
Number Units/bays	Number Units/bays
Short term Accommodation
Villas	2	2
Chalets	14	14
Cottages	1	1
Park Cabins	8	-
Powered Grass Sites	47	37
Powered Slab Site	66	54
Un-powered site	17	39
Drive Through Bays	-	(16)
On-suite Sites	-	(16)
Duplex Units	-	28
Wellness Centre	-	1
Exclusive Accommodation
Annuals (permanent booking)	9	9
Park Homes / onsite vans	11	17
Police Union	1	1
Park Homes (permanent book)	-	10
TOTAL BAYS PER LICENCE	176	213

As the same table has been included in the applicants' submission of 4 December 2008, it is assumed that both parties agree on the statistical data included in Table 1. It is the 'interpretation' of that data where the parties differ.
In the respondent's submission of 2 December 2008, with the addition of 16 new units (six residential longstay (permanent) and 10 holiday shortstay), it is argued:
The proposed development (with the 6 permanent accommodation units) will bring the total percentage of permanent accommodation from 11% (21 out of 176 sites) to 14% (27 out of 192 sites).
It was also argued in the report to the Ordinary Meeting of Council on 21 October 2008 that if the number of longstay units remained at 27 at full development of the Master Plan (27 units out of a total 213 units), that the percentage of longstay units would still be above 10% at 12.67%. This calculation was on the basis that the 10 timeshare units shown as 'exclusive accommodation' in Table 1 were assessed as holiday accommodation.
In the applicants' submission of 4 December 2008 the following points are made:
8.The confusion seems to have arisen from what is identified as 'Exclusive Accommodation' in the above table. The Respondent seems to have assumed that 'Exclusive Accommodation' represents the permanent residential component of the Holiday Park. However, we have recently discussed what each of the figures in this table actually mean with the applicant. Only the row labelled 'Park Homes/onsite vans' represents permanent residents.
9.The rows labelled 'Annuals (permanent booking)' and 'Police Union' are actually sites that are for the exclusive use of individual people or organisations, however they are only occupied in accordance with the requirements to use the site for 'short stay' purposes …
Therefore, provided the sites are not occupied by one person or party for longer than three months in twelve, these sites are considered short stay and not permanently occupied.
10.For example, the occupants are generally farmers who pay for exclusive use of the park home and visit on their holidays. The Police Union Bay is used by visiting members of the police union on their holidays. The sites may remain vacant when not occupied by these parties but they are not occupied consecutively by the one person or one group of persons, for no longer than 3 consecutive months. They should therefore be considered short stay sites and not permanent residential sites.
The applicants summarise their position in this way:

TABLE 2

OCCUPANCY OF EMU BEACH HOLIDAY PARK
Existing	Proposed
Total number of bays	176	192
Number of sites used as permanent residential sites	11	17
Number of sites used as short stay sites	165	175
Percentage of permanent residential sites	6.25%	8.8%

The applicants concluded:
Therefore when the actual use of the sites is taken into account in accordance with the appropriate definitions there is actually room for expansion of the permanent residential component of the property.

The matter of costs

In their submissions, the applicants seek costs on the basis that the respondent was able to approve the development as early as January 2008, and the delay in deciding the matter has led to an increase in building and other costs.
The matter of costs is addressed in s 87(4) of the State Administrative Tribunal Act 2004 (WA):
(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to
…
(b)whether the party (being the decisionmaker) genuinely attempted to make a decision on its merits.
The question before the Tribunal is whether the internal processes of the Council were properly and genuinely pursued in order to decide the matter.

Conclusions

The application for review was lodged against a decision of the respondent to approve the proposed development of 16 park home units but on the condition that they are all to be made available for holiday accommodation (shortstay) and not to be occupied for a period exceeding three months within any 12month period. The application for planning consent had proposed that six twobedroom park home units be for longstay (permanent) accommodation and that only the remaining 10 threebedroom park home units be for shortstay holiday accommodation.
In undertaking this review the Tribunal examined the respective position of the parties, the background to the proposal, the relevant legislative and policy provisions and the matter of the proposed four stage development (Master Plan) and the statistics (in terms of the breakdown of shortstay and longstay accommodation units) relating to the existing development, the current proposals and the proposed full development at finalisation of the Master Plan. The matter of the awarding of costs was also examined.
The position of the respondent is that two important documents, the Taskforce Report and the Tourism Philosophy, clearly express the need to protect 'tourism' from residential uses, with the former recommending a total restriction of longstay residential use in 'strategic' (prime) locations and the latter recommending a maximum 10% of longstay residential use. It was also argued that the proposal would exceed the 10% maximum limit for 'strategic' (prime) locations.
The position of the applicants was that consideration of another document, the 'draft' Accommodation Strategy should be set aside, and that the Tribunal should determine the 'weight' to be given to the City's Tourism Philosophy which is notated as a 'guideline' only. It was also argued that Condition C1, requiring that the six park home units for longstay accommodation be used for shortstay holiday accommodation, be removed and that the matter of awarding costs to the applicants be considered.
In examining this matter, the first point that needs to be recognised is that the subject land (Reserve 22698) is in fact public land which has been vested in the City of Albany and subsequently leased to the Holiday Park operators. Although the details of the vesting and lease conditions have not been provided to the Tribunal, suffice it to say that ideally the use of the subject land should be open to the public at large, and not restricted to specific individuals.
It could of course be argued that by having some 90% of accommodation units available for shortstay holiday use, that the 'public use' criterion has largely been met.
What is of interest to the Tribunal is that the units categorised as 'Annuals (permanent booking)' and 'Police Union' are argued by the applicants as being shortterm accommodation in line with the Caravan Parks and Camping Grounds Regulations 1997 (WA) (CPCGR) definition:
[S]hort stay site means a site at a caravan park which is to be occupied consecutively by the one person or one group of persons, for no longer than 3 consecutive months.
However, as acknowledged in the applicants' submission of 4 December 2008 from the Harley Survey Group, although the sites meet the CPCGR definition for shortstay accommodation they:
… are actually sites that are for the exclusive use of individual people …
In the view of the Tribunal, although these sites may well meet the CPCGR definition, they do not meet the spirit or intent of shortstay accommodation where, once an individual or group conclude their stay, the accommodation is then automatically open to others for rental and/or use.
Again, from an examination of Table 1, the 10 Park Homes (permanent book) units proposed at full development of the Master Plan (213 units) would not be open for wider public use. These appear to be the 10 threebedroom time share units that are classified as shortstay accommodation in the current proposal before the Tribunal, and would be limited in their use to those individuals or groups purchasing time share weeks.
A further point in this matter is that although the Tourism Philosophy suggests a maximum 10% for residential (longstay) accommodation, there is no obligation on either the City (or this Tribunal) to agree to such an upper limit, and each case should be determined on the relevant circumstances of the case.
On the matter of the importance and relevance of the various policy documents, the Tribunal firstly accepts that, for the purposes of definition, the subject land is a 'strategic' (prime) site because of its proximity to the ocean, oyster harbour and the hinterland.
The Tribunal also accepts that the 2002 Tourism Philosophy has been adopted as a policy under the Scheme, and although the Council is not bound by its provisions, it is required to take those provisions into account before making its decision (cl 7.21.4 of TPS 1A). As such, whether the document is referred to as a 'policy' or 'guideline' is inconsequential.
However, since 2002, the 2006 Ministerial Taskforce Report, which was endorsed by Cabinet, emphasises the importance and value of tourism to such areas as Albany. The Report acknowledges that, in respect to 'strategic' sites, development for tourism only purposes (shortstay accommodation) is in the best interests of achieving a sustainable tourism industry. Accordingly, the Report advises that no residential use (longstay accommodation) is to be permitted, and all development is to be subject to lengthofoccupancy restrictions.
The Tribunal is certainly sympathetic to that view.
On the 'draft' Accommodation Strategy, the Tribunal accepts the argument of the applicants that little weight should be placed on its recommendations at this time although, for the purposes of analysis, it suggests a 10% residential (longstay accommodation) component which is in line with the Tourism Philosophy.
On the question of awarding costs, the Tribunal believes that the respondent, when faced with the prospect of a four stage $8.9m development at its Ordinary Meeting of 15 January 2008, correctly requested the applicants to provide further documentation and advice on the longterm planning for the Holiday Park.
Again, at the Ordinary Meeting of Council on 19 February 2008, the Tribunal accepts the logic of deferring the application in order to take into account the recommendations of the Taskforce Report and the 'draft' Accommodation Strategy on a policy on the 'Management of Commercial Leases on Council Land'. This would be particularly relevant having regard to the existing lease over the subject, land and whether such actions as time share sales are contemplated and acceptable under the terms of the lease.
What is not so clear are the reasons for the eightmonth time gap between February 2008 and October 2008 when the consent was granted, or what actions were undertaken by the applicants to expedite the process during that time period.
There is certainly no information before the Tribunal that the respondent deliberately avoided the relevant investigations (in fact it is required to do so under cl 1.7(d) of the Scheme), or did not genuinely attempt to make a decision.
The Tribunal is therefore not prepared to make an order for the payment of costs.
In determining the matter, the Tribunal is conscious that the subject land is 'public' land, is a strategic (prime) site for tourism purposes and that the Ministerial Taskforce Report sees no benefit in residential (longstay) units being developed on land such as this. To do so would represent a gradual erosion of its full tourism potential.
It is the case, however, that the Tourism Philosophy and the 'draft' Accommodation Strategy anticipate up to a maximum 10% of units being for longstay accommodation. In the view of the Tribunal, this limit already exists with 21 units out of 176 units (11.93%) being for the exclusive use of individuals or groups. The current proposal to lift the 21 units to 27 units would lift this 'exclusive' category to 14.06% (27 units out of a total 192 units) and eventually to 17.37% (37 units out of a total 213 units).
In the circumstances of this case the Tribunal can find no reason to justify an increase in the number of residential longstay accommodation sites on the subject land.

Orders

For the foregoing reasons, the orders of the Tribunal are as follows:
1.The application for review is dismissed.
2.The decision under review is affirmed with the exception that Condition C1 is amended in accordance with s 29(3)(c) of the State Administrative Tribunal Act 2004 (WA) to read:
The park home units are to be made available for holiday accommodation purposes and shall not be occupied by any one person or family or group of persons (two persons or more) for a period exceeding 3 months (consecutively or intermittently) within any 12 month period.

I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER