| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : UNIVERSAL ENTERPRISES PTY LTD and TOWN OF VICTORIA PARK [2013] WASAT 99 MEMBER : JUSTICE J A CHANEY (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 27 JUNE 2013 FILE NO/S : DR 193 of 2012 BETWEEN : UNIVERSAL ENTERPRISES PTY LTD Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords: Town planning - Review of determination by nonlegally qualified member - Construction of expressions 'use' and 'Use Class' - Whether potential planning consequence of optimal use of land for existing approved purpose should be considered Legislation: Planning and Development Act 2005 (WA), s 244
Town of Victoria Park Town Planning Scheme No 1, cl 15(2), cl 30, cl 31, cl 31(1)(g)
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Result: Application for review dismissed
Summary of Tribunal's decision: The applicant sought a review under s 244 of the Planning and Development Act 2005 (WA) of a decision by a nonlegally qualified member who had affirmed a decision of the respondent to refuse development approval for a proposed liquor store.
The applicant contended that the Tribunal had misconstrued the provisions of the relevant town planning scheme, that it had taken into account an irrelevant consideration as a result of misconstruing the town planning scheme, that it failed to take into account a relevant consideration, and that it applied an incorrect test in the exercise of its discretion.
The President of the Tribunal, on review, reviewed each ground and concluded that the original Tribunal had not erred in any of the respects contended for by the applicant. Accordingly, the application for review was dismissed.
Category: B
Representation: Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : Flint Moharich
Respondent : McLeods
Case(s) referred to in decision(s):
Goyder and Walsh [2009] WASAT 108
Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132
Universal Enterprises Pty Ltd and Town of Victoria Park [2013] WASAT 62
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(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 On 3 May 2013, the Tribunal constituted by Member Ms M Connor (primary Tribunal), who is not a legally qualified member, delivered reasons for decision on an application by Universal Enterprises Pty Ltd for a review of a decision of the Town of Victoria Park refusing approval for a development proposed at 232 (Lot 310) Orrong Road, Carlisle. That decision is reported as Universal Enterprises Pty Ltd and Town of Victoria Park [2013] WASAT 62 (the primary decision). 2 Section 244 of the Planning and Development Act 2005 (WA) provides that the State Administrative Tribunal constituted by a judicial member may, upon an application by a party, review a determination upon a matter involving a question of law made by the Tribunal when constituted without a legally qualified member. The applicant seeks a review pursuant to that section. It does so on four grounds. The first concerns the Tribunal's determination as to whether planning approval was required in respect of an aspect of the proposed development, a question which involves the proper construction of a provision of the relevant town planning scheme, the Town of Victoria Park Town Planning Scheme No 1 (TPS 1). 3 The second ground asserts that, if the applicant's contention in relation to ground 1 is correct, it follows that the Tribunal took into account irrelevant considerations. 4 The third ground asserts an error by the Tribunal in failing to take into account traffic generated by the existing site in assessing the impact of the proposed development. 5 The fourth ground asserts that the Tribunal applied an incorrect test in determining the application.
Background 6 The site, the subject of the application, was described in the primary decision at [6] as follows: The subject land is 3,686m2 in area situated on the northern corner of Orrong Road and Archer Street, and is bounded by Satellite Place to the west. Improvements on the land include an existing building (circa 1970) with a gross floor area (GFA) of 975m2, primarily used as a supermarket (IGA). This building also contains a vacant tenancy approved and previously used as a restaurant and fast food outlet. In addition, there is a (Page 5)
large carpark and a Muzz Buzz outlet (approved in 2004) with a GFA of approximately 25m2 constructed on the land. 7 The application for planning approval described the development as being 'site and building alterations and extensions for a Dan Murphy's liquor store'. The accompanying plans depicted the entire proposal, comprising the existing building and proposed extensions and additions, being used for the purpose of a liquor store. 8 The Tribunal in the primary decision summarised the proposal as follows (at [2]): The proposal, in summary, entails: • converting the use of the existing building to a Dan Murphy's liquor store, including adding a mezzanine section, approximately 60m2 in area, within the existing building for the purpose of providing an office, a meeting room, a secure room plus lunchroom and toilet facilities. The area of the building designated for the display of retails is approximately 792.5m2; • creating a new service yard (98m2) and storage area (70.8m2) to the south-west of the existing building; • removing the Muzz Buzz outlet and modifying the carpark to provide 81 car parking bays; and • rationalisation of existing access arrangements - one single full movement crossover on Archer Street and a partial movement (left in/left out movements only) on Orrong Road. 9 In the applicant's submissions in support of the present application, it is said that the development application the subject of the review sought approval for: i. the change of use of the restaurant to a shop; ii. the removal of the Muzz Buzz coffee outlet use; iii. works to the building and the carpark, including the inclusion of a mezzanine area, the external storage area and service yard; iv. works to the building to create a single tenancy from the existing shop tenancy and the restaurant tenancy. 10 That submission adopts the opinion of Mr David Caddy, a planner who gave evidence at the hearing, as to the true nature of the application. (Page 6)
That construction of the application is based upon Mr Caddy's opinion, which was obviously not shared by the primary Tribunal, that no approval was necessary in relation to the change of use, from supermarket to liquor store, on the portion of the site occupied by the existing supermarket. Whether the primary Tribunal was correct in its description of the proposal turns on the question raised in ground 1 in this application. As will be seen, from what follows, I consider that the description of the proposed development used by the primary Tribunal is to be preferred.
Ground 1 11 The first ground of review is that the Tribunal erred in finding that planning approval was required for the use of the existing shop tenancy for a liquor store. 12 The Tribunal's starting point in relation to this issue was cl 30 of TPS 1 which provides: 13 The Tribunal then had regard to cl 31 of TPS 1 which sets out developments that are exempt from obtaining planning approval, and in particular cl 31(1)(g) which provides: (1) Planning approval is not required for the following development - 14 The Tribunal concluded that the use as a liquor store involved a change of 'in the use of land' from the last approved use as a supermarket, and that both uses were within the same Use Class, namely 'Shop', which (Page 7)
appears in the Zoning Table in TPS 1. Because the proposal involved both internal and external works, the exemption which might otherwise have been available under cl 31(1)(g) from development approval was not applicable. 15 It is that reasoning which the applicant contends was in error. It contends that the reference in cl 31(1)(g) to a change of uses within the same Use Class is applicable only to those use classes which are grouped together in the Zoning Table. For example, Use Class 'Consulting Rooms, Day Care Centre' and 'Hospital, Nursing Home, Residential Building' are all dealt with together in the Zoning Table. The applicant argues that cl 31(1)(g) provides exemption for, for example, a change from a hospital use to a nursing home use, because they are different uses within the same Use Class. Where, however, a Use Class consists of only a single use, as for example 'Shop', cl 31(1)(g) has no application. Although not put precisely in these terms by the applicant, it contends a change from one type of shop to a different type of shop does not amount to a change of use, and therefore does not amount to a development requiring approval. 16 The primary Tribunal considered, and expressly rejected, the applicant's construction of TPS 1. In my view, it was correct to do so. 17 It was common ground between the parties, and I accept, that the expressions 'use' and 'Use Class' are not employed consistently in TPS 1. In some provisions of TPS 1, the expressions are used interchangeably. In other provisions, 'use' appears to be a subset of 'Use Class'. 18 There is no reason to conclude that a Use Class as set out in the Zoning Table may not encompass a variety of uses which fall within the general description used to identify the Use Class. The point is illustrated by cl 15(2) of TPS 1 which provides: Where in the Zoning Table a particular use is mentioned it is deemed to be excluded from any other Use Class which by its more general term might otherwise include such particular use. 19 Clause 15(2) is an example where 'use' is used as a subset of 'Use Class'. 20 In relation to the Use Class 'Shop', a 'Convenience Store' would be excluded by cl 15(2) because it is separately described in the Zoning Table as a Use Class, notwithstanding that a convenience store is undoubtedly a type of shop. The primary Tribunal proceeded on the basis that the existing use (supermarket) and the proposed use (liquor store) fell (Page 8)
within the same Use Class 'Shop' but did not enjoy the exemption under cl 31(1)(g) because the development involved both internal works and external works. 21 In evidence given at the hearing, the planner called by the applicant, Mr Caddy, gave the following evidence: 7.2 In TPS1, 'shop' is defined as: 'means any building wherein goods are kept, exposed or offered for sale by retail, or within which [services] of a personal nature are provided (including a hairdresser, beauty therapist or manicurist) but does not include a showroom, fast food outlet or any other premises specifically defined elsewhere in this part.' 7.3 Of note is the fact that 'showroom' specifically excludes the sale of liquor, and therefore premises selling liquor for sale by retail could not be characterised as a 'showroom'. 7.4 There is no land use category of 'liquor store' as is found in some schemes. 7.5 As there are no other specific uses in TPS 1 which would more closely fit the use of land as premises to sell liquor, the proposed use is properly, in my opinion, to be characterised as a 'shop'. 22 As Mr Caddy's evidence illustrates, a liquor store is a distinct land use which, in the case of TPS 1, most appropriately falls within the land use class 'Shop'. Supermarket use is a different use which falls within the same Use Class. The primary Tribunal made no error in its consideration of this issue. 23 The applicant argues that the primary Tribunal's construction of cl 31(1)(g) leads to absurd consequences. I do not agree. Clause 31(1)(g) grants an exemption from the need to obtain planning approval in relation to changes of use which fall within the same Use Class. The exemption does not apply, however, where the provisos of subclauses (i) and (ii) apply. Those provisos deal with physical changes which are plainly capable of having planning consequences. It follows that, where all that a user of land seeks to do is to change the type of goods sold from a shop, no planning approval is necessary. Where, however, that change is accompanied by external changes to the building or internal changes to the approved use areas, approval is required. There is a rational planning basis for that approach, even if, in some circumstances, it may impose a burden on the proponent. (Page 9)
24 For those reasons, ground 1 is not made out. The respondent contended that ground 1 should be rejected because it is wrong in principle and law to isolate out that part of the development which involves the future use of the existing supermarket from the application as a whole. Whilst there is merit in that contention, it is not necessary for me to deal with it given my conclusion as to the effect of cl 31(1)(g), and my agreement with the approach taken by the primary Tribunal on that question.
Ground 2 25 Ground 2 is that, if the applicant is correct in relation to ground 1, it follows that it was not open to the Tribunal to consider the impact of traffic generated by a shop use as it related to the supermarket tenancy. Given my conclusion in relation to ground 1, ground 2 falls away.
Ground 3 26 Ground 3 asserts that the primary Tribunal erred in not taking into consideration the traffic that could be generated by the existing site, in circumstances where the evidence of both parties' traffic experts was that the difference in traffic generated between the existing approved uses if 'operating at typical levels' and the proposed development would be significantly less, or even zero. 27 The applicant submits that there was evidence before the primary Tribunal that the restaurant was currently untenanted and that the existing supermarket tenancy was operating at below typical operational levels. It refers to my observations in Goyder and Walsh [2009] WASAT 108 (Goyder and Walsh) at [64] where I said that the Tribunal was justified in considering the relative impact of the proposal in that case having regard to any other development which might reasonably be expected to occur on the site. The applicant contends that, in this case, it would have been reasonable to expect that the existing shop use could be refreshed to operate at a similar level to other comparatively sized supermarket premises in comparable locations, and had that been done the inevitable conclusion would have been that there would be significantly less or zero difference between the proposed use of the land and the potential use of the land for its present uses. 28 I agree with the respondent that this ground does not raise a question of law. The respondent referred to the decision of the Court of Appeal in Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132 at [41], where the Court said: (Page 10)
A relevant consideration is one which the decision-maker is expressly or impliedly obliged to take into account in the course of reaching the decision under review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. The relevant legislation may specify the particular matters which are to be considered or the obligation may arise by implication from the subject matter, scope and purpose of the legislation. … . 29 Nothing said in Goyder and Walsh suggests an obligation to take into account other potential uses of land. The observations in Goyder and Walsh were made in the context of an attack on the Tribunal having taken such considerations into account. The decision on review was simply that the Tribunal was entitled to have regard to the matters which it did, not that it was obliged to do so. 30 In this case, the primary Tribunal had regard to the proposed development as a whole, and its consequences, particularly in relation to traffic. It was entitled to have regard to the extent to which the existing traffic difficulties would be affected by the proposed development. It made no error in doing so.
Ground 4 31 Ground 4 asserts that the primary Tribunal erred in applying an incorrect test to the exercise of its discretion being a test which required that the development improve the existing environment or reduce the existing levels of risk. 32 In support of that ground, the applicant relies on a passage from the primary decision at [78] where the Tribunal said: The applicant failed to demonstrate that measures could be implemented that would improve the existing environment and reduce the existing unacceptable/undesirable level of risk. The fact that the existing situation is unacceptable does not provide justification for approving a new development that will have an equally bad or worse outcome. … . 33 In my view, it is incorrect to characterise the passage relied upon as an application of a 'test', rather than simply a passing observation in relation to the evidence. The primary Tribunal discussed the evidence of the various traffic experts at considerable length, and concluded, at [77] that: Although the proposed development is expected to only add a relatively small number of vehicles to the road matrix, the evidence shows that the additional traffic will exacerbate the traffic problems of a road environment that is already operating beyond capacity. The evidence (Page 11)
identifies a number of traffic issues that arise from the proposed development and include: • the magnitude of the level of risk on Orrong Road associated with the left in movement will increase; • queue lengths for the left out movement onto Orrong Road will increase resulting in longer delays within the site, consequently impacting on the operation of the carpark; • queue lengths for traffic on Archer Street turning left and right into Orrong Road will increase, which will undoubtedly impact on the performance of the Archer Street driveway resulting in further delays and impacting on the operation of the carpark; • the level of risk to road users will increase as exposure is increased. Although under the proposed development scenario for Archer Street, the level of risk is considered to be a 'low' level of risk by the traffic experts, the unacceptably high level of risk that currently exists will be worsened. 34 It concluded at [78], that 'the resultant impacts of the proposed development are sufficient to warrant refusal of this application'. 35 It is clear that the primary Tribunal had regard to the adverse impacts which it concluded would flow from the proposed development, and it was those impacts which led to its conclusion that approval of the proposal would be contrary to the orderly and proper planning of the locality and the preservation of the amenities of the locality, those being the matters to which the primary Tribunal was required to have regard. 36 The primary Tribunal made no error in that respect.
Conclusion 37 For the foregoing reasons, the application for review should be dismissed. (Page 12)
Order 1. The application is dismissed. |