Teo and City of Stirling
[2008] WASAT 270
•19 NOVEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: TEO and CITY OF STIRLING [2008] WASAT 270
MEMBER: MR J JORDAN (MEMBER)
HEARD: 19 AND 20 AUGUST 2008
DELIVERED : 19 NOVEMBER 2008
FILE NO/S: DR 133 of 2007
BETWEEN: TONG WOON TEO
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning - Application to amend structure plan - Proposed change from café/deli designation of site to low density residential designation - Original village centre proposal in structure plan - Amendments to the structure plan retained café/deli use - Creation of the site - Location of the site beside lake - Economic viability of designated use - Expectations of local residents - Public access across site - Public infrastructure on site - Consideration of 'generally in accordance with'
Legislation:
City of Stirling District Planning Scheme No 2, cl 1.6.2.3, Sch 12
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2005 (WA), s 32(2)(a)
Result:
The application for review is dismissed.
The refusal of the City of Stirling of 20 February 2007 to amend the Agreed Structure Plan is affirmed.
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr A Roberts
Solicitors:
Applicant: Self-represented
Respondent: McLeods
Case(s) referred to in decision(s):
Teo and City of Stirling [2008] WASAT 55
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal received from Mr Teo an application for review of the decision by the City of Stirling to refuse to amend the agreed structure plan for the Roselea Estate by deleting from Lot 9000 Roselea Boulevard, Stirling the designation 'café/deli' and replacing it with the designation low density residential.
The City of Stirling was concerned that the café/deli designation remain to achieve the objectives of the structure plan. The designation was required so that a local centre would be provided and the expectations of the local residents generated by the structure plan met. The City of Stirling was also concerned that the change of designation would make it difficult to achieve the integration of development on the site with the adjacent public open space and the creation of public access across the site as part of the public access around the adjoining lake.
Mr Teo considered that a café/deli would not be economically viable. He said he should therefore be allowed to put Lot 9000 Roselea Boulevard, Stirling to the best alternative use which in this location was residential. He would agree to cede sufficient land to include the boardwalk infrastructure across the land adjacent to the lake.
The Tribunal found that there was no substantiated evidence that a café/deli development on the site would be economically unviable. The structure planning for Roselea Estate has consistently identified that a café/deli be provided to cater for the immediate needs of the population of the precinct. That need appears to remain and the uses are an expectation of the residents who bought in to the precinct. The reports that led to these uses being included in the structure planning of the estate and located on the site had not been displaced. The Tribunal concluded that the removal of the designation of the site for use as a café/deli on the Agreed Structure Plan could not be supported. It followed that the proposed designation of the site for development as low density residential also could not be supported. The Tribunal refused the application for review.
Introduction
These proceedings involve an application by Tong Woon Teo (Mr Teo, applicant), pursuant to s 252(1) of the Planning and Development Act2005 (WA) for review of the refusal by the City of Stirling (respondent, Council, City) to amend the structure plan for the Jones Street Precinct, also known as Roselea Estate, as it affects Lot 9000 Roselea Boulevard, Stirling (Lot 9000, site).
An adopted and endorsed structure plan for the Jones Street Precinct designates Lot 9000 for use as a café/deli. The parties identified as a preliminary issue whether the low density residential use proposed by Mr Teo was permissible on the site under the existing planning framework so that no change to the structure plan would be required. This preliminary issue was the subject of proceedings in the Tribunal in February 2008. The Tribunal determined in a decision delivered 7 March 2008 that low density residential use was not permissible on the site under the existing planning framework: Teo and City of Stirling [2008] WASAT 55 (Teo).
As low density residential was not permissible under the existing planning framework, the need to amend the agreed structure plan remained and the matter came before the Tribunal for a final hearing on 19 and 20 August 2008. On 19 August 2008 the Tribunal conducted a view of the site and the immediate locality accompanied by the applicant and counsel for the respondent.
The site and locality
The Jones Street Precinct, within which the site is located, is bounded by Grindleford Drive on the east, Karrinyup Road on the south, Jones Street on the west. There is a margin of lots of about 3,000 square metres between the boundary of the Jones Street Precinct and Karrinyup Road and Jones Street. In the southeast corner is a permanent artificial lake which is part of the drainage system. The lake is about 400 metres from north to south and between 20 metres and 40 metres wide. At about the centre there is an extension of the lake westward for about 120 metres which is about 40 metres wide. At the western end of this extension, extending from the water edge to Roselea Boulevard, is the site. Around the lake is some 2.84 hectares of reticulated public open space in four separate parcels. Extending from the northern boundary of the site eastward across the northern league of the spur of the lake is 6,422 square metres of public open space, extending from the southern boundary of the site between Roselea Boulevard and the lake edge is 1.3813 hectares of open space. The other two areas of open space are at the southern end of the lake and the eastern margin respectively. Between the areas of open space are residential lots.
The site has an area of 1,597 square metres. The frontage to Roselea Boulevard at the western end is 48.25 metres with a slightly lesser boundary to the lake at the eastern end. The depth varies between 36 metres on the northern boundary and 47.09 metres on the southern boundary. This site previously contained a sales office for Roselea Estate with associated parking but the building has now been removed. The developer constructed a boardwalk around the water's edge mostly which crosses the site and constructed within the site a circular brickpaved area as a feature at the water's edge. Most lots in Roselea Estate, certainly within the vicinity of the site, have been developed with single residences, many of which are two stories.
Background
In Teo from [8] [39] the Tribunal provided a full history of the structure planning of the Jones Street Precinct. This commenced in December 1999 with the gazettal of Amendment 358 of the City of Stirling District Planning Scheme No 2 (DPS 2) which identified the Jones Street Precinct and rezoned it to 'low density residential' with a residential density coding of R20, with higher density to be identified on a structure plan. Amendment 358 also inserted Sch 12 into DPS 2 (Sch 12) and on the scheme maps annotated the area of the Precinct with the words 'Zoning subject to Schedule 12 of District Planning Scheme No 2'. Clause 3 of Sch 12 required that a comprehensive structure plan be approved by the respondent and endorsed by the Western Australian Planning Commission (Commission). This provided that 'subdivision, strata subdivision or development of any land within the Precinct shall be generally in accordance with the agreed structure plan … as appropriate'.
Clause 2 of Sch 12 states:
Agreed Structure Plan: means a Structure Plan adopted by the Council and endorsed by the Western Australian Planning Commission.
Building Design and Access Guidelines: means guidelines which provide for the detailed design requirements for development in the Agreed Structure Plan, including details for building setbacks, access locations, minimum areas and dimensions for private open space, fencing, landscaping, solar orientation, buildings orientation to public open space and building heights. When adopted by the Council, the Building, Design and Access Guidelines shall form part of the Agreed Structure Plan.
Precinct: means the Street Precinct as depicted on the Scheme Map.
Structure Plan: means a plan and text making provision for the subdivision, strata subdivision and development of a specific area and which provides a framework for such future subdivision, strata subdivision and development.
In March and April 1999, respectively, the City received from Koltasz Smith & Partners (Koltasz Smith) a document entitled 'Roselea Structure Plan Jones Street, Stirling' and a further document entitled 'Roselea Structure Plan Jones Street, Stirling Technical Appendix'. These documents are referred to collectively in Teo as the 'proposed structure plan'. Significantly, the proposed structure plan included at 27:
A small Village Centre is proposed adjoining the northern portion of the main lake and is proposed to be integrated within the abutting Townhouse developments while capitalising on its outlook over the lake.
The Village Centre is intended to provide only for the immediate retail needs of the resident population as there are significant retail facilities in the broader locality of the site and particularly at Stirling Village, Northlands and Karrinyup.
Specifically, it is envisaged that the Centre, which is proposed to be built around a small town square adjoining the lake edge, would comprise the following retail components:
•A 'super-deli/minimart' of 250 [square metres] to 350 [square metres];
•Limited smaller specialty/boutique stores; and
•Limited takeaway fast food facilities.
Gross retail area is envisaged in the order of 750 [square metres] based on an estimated resident population of 1500 persons and a guidance per capita floor space allocation of 0.53 [square metres] …
Additionally, it is proposed that the Centre incorporate café/bistro facilities overlooking the water together with opportunities for local office space, thereby creating more of a mixed use centre with a strong 'lifestyle' bias.
Figure 9 depicted the structure plan with a Village Centre on the peninsular projecting into the northern portion of the lake just to the north of the site. The area that subsequently became the site was proposed to comprise public open space with landscaping, paths and built works, together with the area adjoining to the north and the south.
Further discussions between Koltasz Smith and the City resulted in a plan with some amendments to the original version being forwarded to the Commission in late 1999. Documents show that on 21 March 2000 the Commission resolved to adopt the 'Jones Street Precinct Structure Plan' as a guide for its decisionmaking. That is, the proposed structure plan, as modified by a plan dated 16 October 1999, became the 'Agreed Structure Plan' for the Precinct under Sch 12 of DPS 2.
In February 2001 Koltasz Smith sought the City's support to modify the structure plan 'in respect of the Village Centre and townhouse proposals'. The letter included the following:
With respect to the Village Centre, expressions of interest for retail tenancies within the Village Centre have been disappointing, due largely to the limited catchment and alternative facilities available within the locality. Accordingly, our client is seeking Council's support to down sizing the facility to a combined café and delicatessen and for its relocation as discussed further in this submission. …
The Plan proposes a total of 76 lots structured as follows:
•café/deli site of 1805 [square metres];
With the scaling down of the Village Centre and the redesign of the northern townhouses, it is proposed to relocate the café/deli marginally westward of the previous café position so as to improve its relationship with the main Public Open Space and the pedestrian plaza area west of the main roundabout.
As previously, the café/deli has been integrated into the overall landscape design of the Public Open Space and provision made for a pedestrian easement through the lot to facilitate pedestrian movement between the areas of lakeside Public Open Space. …
The plan depicting and entitled 'Revised Structure Plan Roselea - Jones Street, Stirling' drawn by Koltasz Smith dated 5 February 2001 and later amended in May 2001 showed the 'café/deli site' referred to in the letter occupying 1,805 square metres in substantially the same area as the site that would become Lot 9000 with a pedestrian access easement running through the site. On 4 September 2001 the Commission adopted the structure plan subject to a 3 metre wide public access easement 'being provided over the village centre lot [that is, the site]'.
Further amendments to the agreed structure plan were endorsed by the Commission on 2 June 2004 following exchange of letters and negotiations conducted between the City, Koltasz Smith and the Commission. The structure plan revision of 2004 did not directly concern the site. On the plan that depicted the amendments, however, there was superimposed the words 'FUTURE CAFÉ' in red over the location of the site. The plan included a public open space schedule which included as exclusions the area of the lake and the 'café/deli site' of 1,597 square metres. The Tribunal in Teo said it was clear that the café/deli site referred to in the public open space schedule was the site the subject of these proceedings.
By letter dated 1 December 2005 the City informed the Commission:
•it had received a request for clearance of subdivision conditions relating to a number of lots identified on a draft deposited plan (the plan depicted Lot 9000);
•certain subdivision conditions had been fulfilled; and
•'Balance Lot 9000 does not form part of this clearance'.
On 15 December 2005, the Commission endorsed its approval on Deposited Plan 47801, which included Lot 9000. Upon the registration of Deposited Plan 47801 by the Department of Land Information, Certificate of Title Volume 2616 Folio 865 was issued for Lot 9000. Prima Developments Pty Ltd, which is understood to be the applicant's family company, purchased the site in 2006.
Planning Framework
The site is zoned 'urban' under the Metropolitan Region Scheme. Under DPS 2 the site is located within the Jones Street Precinct. All land within the Jones Street Precinct, which has been developed as 'Roselea Estate', is zoned 'low density residential' under DPS 2.
Schedule 12 of DPS 2 is concerned with the Jones Street Precinct. Clause 1.6.2.3 of DPS 2 makes it an offence for a person to use or develop land within the Jones Street Precinct except in accordance with Sch 12.
Clause 1 of Sch 12 states:
The purpose of the [Jones] Street Precinct is to facilitate and permit the progressive development of the land for a predominantly low density residential estate.
Clause 3 of Sch 12 states:
A comprehensive Structure Plan shall be approved by the Council and endorsed by the Western Australian Planning Commission for the Precinct prior to any subdivision, strata subdivision or development of the land. The subdivision, strata subdivision or development of any land within the Precinct shall be generally in accordance with the Agreed Structure Plan and Building Design and Access Guidelines adopted for the Precinct pursuant to Clause 8 of this Schedule, as appropriate.
…
Clause 4 of Sch 12 states:
The Structure Plan shall adequately address the following [relevantly]:
…
•The proposed development, distribution of land uses and their relationship to adjacent holdings;
•Existing and proposed road and pedestrian systems;
•The distribution and nature of open spaces and any public facilities proposed;
…
In addition, the Structure Plan will have regard for the following aspects:
•Residential Density Allocation
The spatial location of appropriate Residential Planning Code densities shall be shown on the Agreed Structure Plan. The overall residential density allocation shall promote a variety of dwelling types and shall be predominantly R20, with no land being coded in excess of R40.
…
•Public Open Space
Public Open Space shall be located and designed to facilitate access to the lake system by all residents and may include incidental pocket parks to residential precincts.
…
•Shopping Facility
The provision of any shopping facility catering for the daily convenience needs of the local residents will be required to be justified in terms of its size and location within the catchment area of surrounding retail outlets.
Clause 6 of Sch 12 states:
The Structure Plan may be amended and such amendments shall require the approval of the Council and the endorsement of the Western Australian Planning Commission. In considering an amendment to the Structure Plan, the Council may require that such amendment be advertised for comment in accordance with the provision of this Schedule.
Clause 7 of Sch 12 states:
For the purposes of Clause 1.3.2 and Table 1 - Zoning Table of the Scheme, the use and development of land within the Jones Street Precinct shall be subject to the provisions of the 'Low Density Residential' Zone except for:
…
•Use and development of any lot identified on the Agreed Structure Plan for 'Village Centre' shall be subject to the provisions of the 'Business' Zone.
Except as otherwise provided for under the Agreed Structure Plan and the adopted Building Design and Access Guidelines; the use, development or subdivision of land shall be in accordance with the provisions of the Scheme.
Issue
The issue before the Tribunal is whether it can support the proposal by the applicant to amend the agreed structure plan for the Jones Street Precinct by:
1.removing designation of the site for use as a café/deli;
2.removing the endorsement of the site on the map as 'FUTURE CAFÉ'; and
3.designating the site for development as low density residential use.
Discussion
Lot 9000
Both parties referred to Lot 9000 as being created in error. In March 2000 an application was made to the Commission for the subdivision of the Roselea Estate. Condition 13 of the conditions imposed required a dual use path be constructed, as shown on an attached plan dated 9 March 2000. The 9 March 2000 plan showed the dual use path throughout the Estate, including through the area where Lot 9000 would be created. A path which includes a boardwalk has been constructed across the site adjacent to the lake. The approval of the amendment to the structure plan in September 2001 was subject to a 3 metre wide easement for public access being provided across the café/deli site. This easement was not created.
Subdivision into approximately 500 lots within the Roselea Estate proceeded in about 10 stages, some of which had substages. As set out above, deposited plan 47801 was lodged with the Commission in December 2005 and it included Lot 9000. A letter sent by the City to the Commission on 1 December 2005 stated that Lot 9000 and Lot 9001 did not form part of the clearance issued by the City because conditions of approval had not been satisfied. The letter asked that these two lots be left as a balance of title for later subdivision. The Commission endorsed its approval of the survey on 15 December 2005 and forwarded the documents to Landgate for processing. Lot 9000 was created as a single lot and a Certificate of Title was issued. The original subdivider sold Lot 9000 to Prima Developments Pty Ltd, the applicant's company.
The respondent said that Lot 9000 had been created without a condition requiring an easement for public access across the site having first been cleared and without the obligations of the structure plan being addressed, including guidelines being prepared for the integration of any development of the site physically and visually with the open space. The City considered that although these opportunities were lost with the creation of Lot 9000, the planning objectives of the structure plan should be pursued as they affect the site. Lot 9000 should only be developed for the use shown on the agreed structure plan and any development approval should include blending of the use with the open space and the granting of an easement for public access.
The applicant said he should not be punished for the error made by the authorities of not first obtaining facilities promised by the developer under the structure plan before Lot 9000 was created. The lot was created and the developer sold it. The promises on what might be provided, made to residents by the previous owner, should not pass to him. As the current owner, he should be able to use the site for residential, its only useful purpose. Not allowing this use would be requiring the site to remain as open space for use by the public, as many of the neighbours would now prefer and this would unfairly penalise him.
There is no dispute between the parties that Lot 9000 exists as a private landholding and is not encumbered by any easements that would allow the public at large to cross the site. The Tribunal considers that the manner of the creation of Lot 9000 is significant, only that in the assessment of any development proposal it must be decided if it would be reasonable to require public access across the site, having regard to the planning framework and how the use would relate to the neighbouring open space. The respondent recommended that if the proposed amendment to the structure plan is allowed, there be a condition that the land containing the public infrastructure be created as a separate lot and ceded free of cost. The applicant said he would not object if residential use were allowed.
The Tribunal does not accept the applicant's submission that the circumstances of the creation of Lot 9000 should not result in the transfer of any planning obligations. Planning controls run with the land and are not affected by change of ownership. If there is to be any change in how land might be used, it is not the sale of the land but a change of the planning framework that is required. The applicant did, of course, raise further arguments for the changing of the planning controls, as discussed below.
Economic viability of a café/deli
Mr Teo reminded the Tribunal that the initial structure plan included the larger village centre just to the north of the future Lot 9000. In 2002 the structure plan was amended by the size and range of uses proposed for the village centre being reduced to just a café/deli and the location being shifted to the site. He pointed out that in agreeing to this amendment the City had accepted that within a radius of about 3 kilometres there were facilities similar to those in the proposed village centre sufficient to make the originally proposed centre economically unviable. He considered that the uses within this radius also made the remaining café/deli uses unviable. In addition, Mr Teo was also of the view that the Roselea Estate had insufficient lots for a population to support a café/deli. To support this view, he referred to Princeton Estate of about 700 lots to the south of Karrinyup Road which did not have a village centre.
In support of his assertions the applicant produced at the hearing a document titled 'Café/deli Project at Lot 9000 Roselea Boulevard, Stirling Cash Flow Projection'. The document included values for such items as construction and fitout costs, interest rates, landholding costs, staffing levels, wage levels, staff shifts, superannuation, insurance and utility costs. There was also an estimate of food costs as a proportion of outgoings and a level of required revenue. When asked, the applicant said the document had been compiled with the assistance of 'a café owner'. That person was not called as a witness.
Mr Roberts for the respondent objected to putting the document into evidence. He said it was by unknown authors, the authors were not available for crossexamination, there was no witness statement and the figures used were not sourced.
Mr Teo also included as appendices to his submission signed letters from two other persons purporting to give expert evidence on costs and viability of running a café on Lot 9000. The authors of these two documents also did not appear. Mr Roberts again objected to these two documents being given weight as evidence for the same reasons.
The applicant further referred to a report he commissioned by Masterplan Consultants (Masterplan) dated September 2006 to support an earlier application to use the site for residential purposes. Masterplan did not conduct a fresh analysis of the commercial use of the site but looked again at the Koltasz Smith submission prepared to support the structure plan amendment to reduce the area of the village centre in 2001. Masterplan interpreted the report as supporting the complete removal of the café/deli designation and replacing it with residential.
The applicant referred to a comment by a City officer in a report to the Council at the time that it had been established that commercial uses would be unviable. It appears that the officer accepted on face value the conclusions in the Masterplan report.
The respondent called two expert witnesses. One was Mr David Morris, the Chief Executive Officer of the Stirling Small Business Centre. Mr Morris has qualifications in business management and marketing and said that his nonprofit organisation provided advice and assistance to new and existing small business owners on how to conduct feasibility studies when considering a new business. Mr Morris did not do a feasibility study of the proposed development. He did, however, review the two letters provided by the business operators that were attached to Mr Teo's submission and the Masterplan report.
In the opinion of Mr Morris the letters did not contain an appropriate analysis of the potential of a business on the site. Such a report should include relevant information on catchment, demography of local population, geographical factors and the particular characteristics of potential competitors. The letters referred to the operation of businesses in locations of the authors' businesses, one being the City Centre and the other being a shopping centre, each of which would have catchments, potential customers and operating hours different from any business on the site. In his comments on the Masterplan report, Mr Morris said that no methodology was revealed, just a conclusion on the feasibility of the business.
The Tribunal did not admit into evidence the document titled 'Café/deli Project at Lot 9000 Roselea Boulevard, Stirling Cash Flow Projection'. The document was purporting to be expert evidence to prove nonviability. The absence of the author, and a source for the specific data used so that counsel for the respondent could test the assumptions made and conclusion asserted, led the Tribunal to conclude that the document could not be given any weight as evidence.
Under s 32(2)(a) of the State Administrative Tribunal Act 2005 (WA), the Tribunal is not bound by the rules of evidence. In respect of the letters provided by the applicant, the Tribunal accepts that there has been an exchange of correspondence between those persons and the applicant. The content of the letters, however, goes to the heart of the issues between the applicant and the respondent and purports to be expert evidence to support one particular point of view. The opinions of the authors of the letters on such matters as customers, the location and specific costs, for example, could not be examined by the respondent. The Tribunal found that these two documents were to be afforded little weight.
The Tribunal found that the Masterplan report had essentially viewed the information in the 2001 Koltasz Smith report and had simply come to a different conclusion. That is, that no commercial use on the site could be supported. As pointed out by Mr Morris, it is not apparent from the report why this conclusion should be preferred to the one drawn by Koltasz Smith.
The second expert witness called by the respondent was Mr Simon Bain, a consultant town planner. Mr Bain referred to the background to the amendments to the structure plan that have resulted in the current designation of about 182 square metres of deli and café floor space in the location of Lot 9000. In assessing the proposed use, Mr Bain referred to the site being in a location that was a focus for the community because of the lake, the arrangements of the road system that provided access to and distributed traffic around the Roselea Estate and the footpath network. He made reference to the provision of daily convenience needs of the local residents and the per capita floor space allocation of 0.53 square metres per person from Appendix 3 of the Commission's Metropolitan Centres Policy used as a guide to support a village centre concept. He said that with about 440 lots in Roselea Estate, an average occupancy of 2.7 persons per dwelling, the requirement was 629 square metres net lettable area. In his opinion the local population in Roselea Estate would support a deli of 50 square metres and a café of 132 square metres, totalling 182 square metres as envisaged in the amended structure plan.
Clause 4 of Sch 12 states under the heading 'Shopping Facility':
The provision of any shopping facility catering for the daily convenience needs of the local residents will be required to be justified in terms of its size and location within the catchment area of surrounding retail outlets.
The 2001 Koltasz Smith report examined surrounding uses and catchments and concluded that the café/deli could be supported. Masterplan came to a different conclusion but did not reveal why. In the absence of expert witnesses to support the assertions made by the applicant and having regard to the evidence of the two experts called by the respondent that there was at least either more work required or in theory a planning case for a café/deli on Lot 9000, the Tribunal has concluded that it cannot be unequivocally found that a café/deli on Lot 9000 would be economically unviable.
Expectations of local residents
The respondent raised as an issue the reasonable expectations of local residents. Eight local residents were called as witnesses. Each resident said it was their expectation that Lot 9000 should only be developed as a café which would blend in with the surrounding public open space and allow for continued public access to the boardwalk around and adjacent to the lake. This expectation had been instilled by information on a sign erected near the site, on plans of Roselea Estate and in information provided by the sales representatives at purchase. Two witnesses said they would prefer open space to a café but each said that they would make some use of a café if it were provided. Two of the witnesses expressly stated that the car park, signage, delivery vehicles and any outside traffic associated with a café would be acceptable to them.
Most of the residents who appeared as witnesses indicated they would oppose a delicatessen being included, that they would not want a 'large' café and would object to two storey development or a development that included a residence associated with the commercial activity.
The applicant said that the mistake made by the Commission in creating the site had enabled the developers to sell the site. It was the applicant's submission that the developers had promised the café and this obligation should not transfer to him with the sale of the Lot. He considered that residents who wanted a café should approach the developers and not hold the new owner liable.
The applicant was concerned that the local residents had shown that they were in reality opposed to commercial development, and in fact any development, on the site. He referred to the opposition, particularly to the commercial facility, of local residents to the submission by Koltasz Smith on behalf of the previous owner to the Council in January 2006 for the development of the site for a shop/café tenancy and three grouped dwellings. Counsel for the respondent said that it was not clear what the local opposition to that application was based on but could be seen to be in sharp contrast to the submissions by local residents on this application.
As stated above, the applicant cannot be supported in his assertion that the planning controls on land use should not have passed to him on his purchase of the site. The strategic plan remains in place to guide development. Of concern to the Tribunal are the expectations of many local residents, as expressed in their submissions, that they would accept only a small café and no other commercial development. Clause 7 of Sch 12 provides that use and development of village centre lots, now Lot 9000, be subject to the provisions of the business zone of DPS 2 and a deli is a permitted use. The Tribunal is also of the view that the owner could also have a reasonable expectation that a two storey building would be possible. The use of Lot 9000 is discussed below.
Use of the site
The applicant pointed out, and it was not disputed, that the area of public open space required under the Agreed Structure Plan has been created. Since the 2001 amendments to the agreed structure plan, the site has not been identified as open space and is private property. As indicated above, Mr Teo was concerned that the real objective of the opponents of his proposed residential use was to have the site remain open space with unrestricted use by the general public. He referred to his erecting a temporary fence around the site because of concerns about liability and trespassers. Mr John Reidy-Crofts, a neighbour, is quoted in the Stirling Times of 3 June 2008, as saying he pulled down the fence to provide access to the boardwalk across the site and would pull it down again if it is reerected because stopping access was 'unacceptable'. Mr Teo also referred to the local opposition to the application to the City in 2006 by Koltasz Smith on behalf of the then owners to make Lot 9000 a mixed use development site comprising a shop of 40 square metres, a café of 90 square metres with a 30 square metre terrace, three residential apartments and associated parking, access and landscaping. He considered this to be a rejection by the local community of commercial development on the site. He considered it would be unjust if he was forced to retain the site as open space and maintain it at his cost for use by the public.
Mr Bain considered that, consistent with the structure plan objectives, commercial development of the site could be physically and visually integrated with the adjoining open space. The building would occupy up to about a third of the site and it would be good practice to invite custom and provide outlook rather than discourage it by fencing the perimeter. Housing could occupy up to 50% of the site and private open space would be fenced from the surrounding public open space. In his opinion this would be in conflict with the structure plan objectives of integration of the use of the site with the public open space and would have an adverse impact on the local amenity.
Mr Bain raised the prospect that if the site was designated residential under the structure plan, up to five dwellings could be developed under the R30 coding that applies generally around the lake. Mr Teo said that he now would consider building only a family home on the site, although he would need to reconsider if he would want to live there in the circumstances.
While noting the submissions of the residents, the Tribunal considers that an owner of Lot 9000 could rightly have an expectation that a deli would be approved because the use is both provided for in the agreed structure plan and corner store and shop, which would include a deli, are permitted uses in the business zone in the zoning Table of DPS 2. The Tribunal is also of the view that a café consistent with maintaining a viable level of service would be considered.
Clause 3 of Sch 12 provides in part that:
… The subdivision, strata subdivision and development of any land within the Precinct shall be generally in accordance with the Agreed Structure Plan …
In Teo the Tribunal found that development of the site solely for residential use would not be generally in accordance with the structure plan because low density residential is essentially different from café/deli use. It was also stated at [50] that:
The determination of whether the proposed development of land within the Precinct is 'generally in accordance with' the Agreed Structure Plan is a matter of fact and degree in a town planning context.
The Tribunal notes that the 2006 application which included a mix of café, deli and residential was withdrawn and never considered by the Council. It would comment that a development that included a café and deli to meet the immediate retail needs of resident population and also a house, perhaps in a two storey building, and including access across the site adjacent to the lake, might be generally in accordance with the agreed structure plan. How this would visually and physically integrate with the surrounding open space would be a consideration. It must be added that the parties did not make submissions on this form of development and of course it would have to be the subject of an application to the Council for consideration.
Conclusion
The structure planning for the Jones Street Precinct, subsequently developed as Roselea Estate, initially identified the location of the site as public open space. Since the 2001 amendments to the structure plan the site has been designated for a café/deli, has not been required for public open space but has been shown as having an easement for public access across the site to join open space areas adjoining to the north and the south.
The site became Lot 9000 in 2006 without any easement being created or design guidelines being in place. It was acquired by the applicant's company. The applicant is wrong in his argument that the planning controls of Sch 12 of DPS 2 and the associated Agreed Structure Plan should not now apply because of the manner of the creation of Lot 9000 and its subsequent sale. The planning controls run with the land on change of ownership.
The applicant has argued that a café/deli would be economically unviable on the site and therefore the designation should be changed to low density residential to allow for an economic use consistent with the remainder of Roselea Estate. He said that as part of a development approval, consideration would be given to ceding land containing the existing boardwalk infrastructure for public open space.
At the hearing substantiated evidence was not presented to the Tribunal that a café/deli development on the site would be economically unviable. The evidence was that the reports that led to these uses being included in the structure planning of the estate and located on the site had not yet been displaced by any other tested document of an appropriate standard.
The Tribunal agrees with the applicant that it would be inequitable if the expectation of at least some of the neighbours was to be satisfied and the applicant was obliged to maintain the site as open space and allow access to the general public. It appears that the applicant would be able to take steps to exclude trespassers until such time as there is an appropriate agreement with the City to allow access.
The Tribunal has found that the structure planning has consistently identified that a café/deli be provided to cater for the immediate needs of the population of the precinct. That need appears to remain and the uses are an expectation of the residents who bought in to the precinct. The Tribunal has concluded that the removal of the designation of the site for use as a café/deli and the removal of the endorsement on the map of the Agreed Structure Plan cannot be supported. It follows that the designation of the site for development as low density residential also cannot be supported.
The Tribunal has therefore decided to refuse the application for review.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The refusal of the City of Stirling of 20 February 2007 to amend the Agreed Structure Plan is affirmed.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER