Universal Enterprises Pty Ltd and Town Of Victoria Park
[2013] WASAT 62
•3 MAY 2013
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 62
MEMBER: MS M CONNOR (MEMBER)
HEARD: 29, 30 AND 31 JANUARY 2013
DELIVERED : 3 MAY 2013
FILE NO/S: DR 193 of 2012
BETWEEN: UNIVERSAL ENTERPRISES PTY LTD
Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords:
Development application Use of existing building as Dan Murphy's liquor store Classification of Use Whether Dan Murphy's liquor store is a 'Shop' or an 'Unlisted Use' Whether planning approval required for change of use from supermarket to liquor store Whether liquor store of type and scale proposed caters for 'daytoday' needs of local residents Traffic management and safety issues Existing road environment operating beyond capacity Impacts of additional traffic Orderly and proper planning Preservation of amenities of locality Review dismissed
Legislation:
Metropolitan Region Scheme, cl 30
Planning and Development Act 2005 (WA), s 252(1)
Town of Victoria Park Town Planning Scheme No 1, cl 10, cl 15, cl 30, cl 31, cl 31(1)(g), cl 35, cl 36, cl 37
Result:
Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision:
Universal Enterprises Pty Ltd applied to the State Administrative Tribunal for review of the Town of Victoria Park's decision refusing planning approval for additions and alterations to an existing shop and a change of use of portion of the building from restaurant and fast food outlet on No 232 (Lot 310) Orrong Road, Carlisle.
The existing building on site is primarily used as a supermarket, although portion of the building is currently vacant and has planning approval for use as a restaurant and fast food outlet. There is also a Muzz Buzz outlet located within the associated carpark. The proposed development involved converting the existing building, together with other associated works, to a Dan Murphy's liquor store.
The following three principal issues arose for determination in this matter:
1) Should the development be characterised as a 'Shop' or an 'Unlisted Use' under TPS 1?
2) If the development is properly classified as a 'Shop', what is the extent of discretion available under TPS 1?
3) Whether the development is consistent with the orderly and proper planning and the preservation of the amenities of the locality, having regard to:
i) the planning framework; and
ii) traffic management and safety issues.
The Tribunal considered the sale of goods from a Dan Murphy's liquor store to fall within the definition of 'retail' as contained in the Town of Victoria Park Town Planning Scheme No 1 and as such, determined the proper classification of the proposed use as 'Shop'.
The Tribunal further determined that the change of use from a supermarket to a liquor store was not exempt from planning approval under the provisions of the Town of Victoria Park Town Planning Scheme No 1 as the intent of cl 31(1)(g) was to capture the variations that may arise between uses within the same use class where internal works alter the approved use areas or any external building works or works altering the external appearance of the building, as was the case in this instance. Therefore, the Tribunal found that the discretion provided for under cl 36 of the Scheme applied to this aspect of the proposed development.
On the issue of traffic management and safety issues, the evidence clearly demonstrated that the road environment adjacent to the subject land was operating beyond capacity and experiencing significant congestion and safety issues. Although the additional traffic generated by the proposed development was estimated to be relatively small in number, the evidence showed that both the level of congestion and level of risk would increase and result in a worse situation. The Tribunal concluded that the proposed development was contrary to orderly and proper planning and the preservation of the amenities of the locality. Consequently, the application was refused and the decision of the respondent affirmed.
Category: B
Representation:
Counsel:
Applicant: Ms B Moharich
Respondent: Mr C Slarke
Solicitors:
Applicant: Flint Moharich
Respondent: McLeods
Case(s) referred to in decision(s):
Francis David O'Connor & Maria Ann O'Connor and Town of Victoria Park [2004] WATPAT 223
O'Connor and Town of Victoria Park [2005] WASAT 161
Project Development WA Pty Ltd and City of Bayswater [2010] WASAT 128
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Universal Enterprises Pty Ltd (applicant) made an application for planning approval to the Town of Victoria Park (Town, Council or respondent) on 12 July 2011 for 'proposed additions to existing single storey building for [a] Dan Murphy store' on No 232 (Lot 310) Orrong Road, Carlisle (subject land).
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.
As the subject land abuts Orrong Road, which is reserved 'Other Regional Road' (ORR) in the Metropolitan Region Scheme (MRS), the respondent referred the application to the Department of Planning and to Main Roads WA (MRWA) for comments and recommendation. Both authorities had no objection to the proposed development, subject to a number of conditions being imposed, one of which required the closure of the existing crossovers onto Orrong Road and limiting all vehicular access to Archer Street.
At its meeting on 8 May 2012, the Council received a report from its planning officers recommending approval for the proposed development, subject to 22 conditions, one of which required 'approval being obtained from the Western Australian Planning Commission for retention of the one vehicle crossover onto Orrong Road'. The Council, at that meeting, refused the application under both the MRS and the Town of Victoria Park Town Planning Scheme No 1 (TPS 1 or Scheme), stating the following reasons for refusal:
1.The Main Roads WA advice is that there should be no vehicular access to Orrong Road.
2.There is currently severe traffic congestion in Archer Street adjacent to the proposed facility caused by:
•Queuing for the traffic lights;
•Bus right turn movements; and
•Traffic exiting the BP service station.
3.The advice from the Council's Street life Business Unit based on [its] traffic modelling is that:
•If there was to be no vehicular access to Orrong Road from this site then the traffic implications upon Archer Street would be significant and additional safety issues would arise to the extent that vehicular access to Archer Street would fail.
4.The Main Roads WA study, Orrong Road Project Review Community Reference Group of 2010/2011[,] established that there are major traffic problems at the Orrong Road and Archer Street intersection.
5.The State Minister for Transport has identified that the congestion on Orrong Road needs priority attention.
6.It could cause an adverse impact on the amenity of the area.
7.The considerable number of liquor outlets within the local area.
8.Council considers that the granting of a liquor licence for the premises may not be in the public interest.
On 25 May 2012, the applicant made application under s 252(1) of the Planning and Development Act 2005 (WA) to have the decision reviewed.
Subject land and surrounds
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 large carpark and a Muzz Buzz outlet (approved in 2004) with a GFA of approximately 25m2 constructed on the land.
Residential properties directly abut the north‑western boundary of the subject land and further residential properties are located adjacent on Satellite Place. Opposite the site and on the southern side of Archer Street (corner of Orrong Road) is a BP service station.
Access to the subject land is via Orrong Road and Archer Street; no access is gained via Satellite Place. Presently, there are two access driveways onto Orrong Road comprising one left in (southernmost) and one left out (northernmost) driveway. The centrepoints of the Orrong Road driveways are approximately 40m and 55m from the centre of the signalised intersection of Orrong Road and Archer Street. Similarly, there are two access driveways onto Archer Street, one immediately adjacent to the building for left and right turn out movements and the other for left and right turn in movements. The centrepoints of the Archer Street driveways are some 48m and 62m from the traffic signal stop line.
Orrong Road is classified as a Primary Distributor road under MRWA's Functional Road Hierarchy. This classification is applied to roads that 'provide for major regional and inter-regional traffic movement and carry large volumes of generally fast moving traffic. Some are strategic routes and all are State Roads'. Orrong Road is managed by MRWA. Data from MRWA (June 2011) indicates that traffic volumes on Orrong Road are in the order of 58,560 vehicles per weekday, with approximately 29,372 vehicles travelling northbound. The data further indicates that Orrong Road carries 4,425 and 4,197 vehicles during the am and pm peak hours respectively, with approximately 2,429 and 2,105 vehicles in the northbound direction. Orrong Road, in the vicinity of the subject land, is a four lane dual carriageway with a right turning lane for outbound traffic from the City to turn into Archer Street and a right turning lane for vehicles travelling towards the City to turn right into Alexander Road.
Archer Street is classified as a District Distributor B road under MRWA's Functional Road Hierarchy. This classification is applied to roads which 'carry traffic between industrial, commercial and residential areas and generally connect to Primary Distributors. Unlike [District Distributor A] roads these roads have a reduce capacity due to flow restrictions from access to and roadside parking alongside adjoining property'. Archer Street is managed by the Town of Victoria Park. The traffic data contained in the Transport Impact Assessment (July 2012) (TIA July 2012) estimates that Archer Street, adjacent to the site, carries in the order of 13,540 vehicles per weekday, with approximately 1,259 and 1,138 vehicles during the am and pm peak hours, respectively. Archer Street is generally constructed to a two lane divided single carriageway standard with one traffic and one cycling lane in each direction. The eastbound traffic towards Orrong Road is marked with two lanes for approximately 42m.
Planning framework
State
The subject land, for the most part, is zoned Urban in the MRS. There is, however, a small portion of the lot abutting Orrong Road that is reserved for 'ORR' in the MRS. Clause 30 of the MRS requires the decision‑maker, in determining an application to commence development, to have regard to the purpose for which the land is zoned or reserved under the Scheme, the orderly and proper planning of the locality and the preservation of the amenities of the locality.
Relevant State planning policies referred to by the parties include:
•State Planning Policy No 4.2 ‑ Activity Centres for Perth and Peel (SPP 4.2);
•Development Control Policy 1.4 Functional Road Classification for Planning (DC1.4); and
•Development Control Policy 5.1 Regional Roads (Vehicular Access) (DC5.1).
Local
The subject land is primarily zoned Local Centre under TPS 1. The small portion of the lot abutting Orrong Road reserved 'ORR' in the MRS is neither zoned nor reserved under TPS 1. For the purposes of TPS 1, the subject land is also included in cl 11 of Precinct Plan P8 ‑ Carlisle (Precinct Plan P8). The main provisions contained in TPS 1 that are relevant to the determination of this matter are:
•clause 6 ‑ Objectives and Intentions;
•clause 15 ‑ Use of Land in a Scheme Zone;
•clause 16 ‑ Unlisted Uses;
•clause 30 ‑ Need for Planning Approval;
•clause 31 ‑ Exemption from Planning Approval;
•clause 36 ‑ Determination of Application General Provisions;
•clause 37 ‑ Determination of Application for an Unlisted Use;
•clause 41 ‑ Term of Planning Approval;
•Zoning Table;
•Schedule 1 ‑ Definitions; and
•Precinct Plan P8.
Issues
The following principal issues arise for determination in relation to this matter:
1)Should the development be characterised as a 'Shop' or an 'Unlisted Use' under TPS 1?
2)If the development is properly classified as a 'Shop', what is the extent of discretion available under TPS 1?
3)Whether the development is consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality, having regard to:
i)the planning framework; and
ii)traffic management and safety issues.
The Tribunal will address each of these issues in turn.
Should the development be characterised as a 'Shop' or an 'Unlisted Use' under TPS 1?
The respondent contended that the proposed liquor store could not be characterised as a 'Shop' given the definition of 'shop' and 'retail' contained in Sch 1 ‑ Definitions of TPS 1, which states:
'shop' 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;
Note:
The Interpretation Act 1984 defines 'sell' to include barter, exchange, offer to sell and expose for sale.
'retail' means the sale or hire of products, goods or services to the public generally in small quantities and from a shop, showroom or fast food outlet.
The respondent argued that the sale of goods by retail from a Dan Murphy's liquor store could not be described as the sale of goods to the public 'generally in small quantities', as the operational characteristics of Dan Murphy liquor stores promote the sale of goods in larger rather than smaller quantities. The respondent asserted the use could not reasonably be determined as falling within the classification of 'Shop' or any other use class category contained in the Scheme and therefore should be classified as an 'Unlisted Use'. The respondent went on to say that if the Tribunal were to find that the use was properly characterised as an Unlisted Use, then the proposed development was incapable of approval at present, as the Scheme requires an application involving an Unlisted Use to be advertised before planning approval can be granted, and advertising has not occurred in this instance: cl 35 and cl 37 of TPS 1.
The planning experts, Mr David Caddy, town planning consultant called on behalf of the applicant, and Mr Stephen Allerding, town planning consultant called on behalf of the respondent, agreed that Dan Murphy's liquor stores typically displayed the following common characteristics:
•'destination' stores with large catchment areas;
•substantially large floor areas for the display of liquor products;
•sale of liquor in bulk;
•sale of liquor at discount prices promoting lowest price guarantee; and
•purchases tend to be weekly or fortnightly.
Mr Allerding submitted that Dan Murphy's liquor stores are promoted as large format discount stores with a lowest price guarantee which encourages bulk purchases. In cross‑examination, Mr Allerding explained that in his view, 'bulk' sales included a carton of beer or a case of wine, and accepted that it was not uncommon for, and there was nothing prohibiting, customers going into any bottle shop and buying a case of wine or a carton of beer. Further, Mr Allerding was uncertain as to whether other liquor stores within the Local Centre zoning would be classified as a 'Shop', as he considered 'it would come down to, in part, a question of fact and degree about how [the store] operates'.
Mr Caddy, based on his general observations, agreed that customers at a Dan Murphy's liquor store generally buy liquor in larger rather than smaller quantities. Mr Donald Veal, a traffic consultant engaged by the applicant to undertake, amongst other things, a Transport Impact Assessment (April 2012) (TIA April 2012), carried out, as part of the assessment, an observational parking survey of the Midland Dan Murphy's liquor store to assess parking demand. The parking survey also revealed that '[t]he vast majority of customers entered the store and left with one or two bottles of wine or a carton of beer within 5 minutes'. Mr Veal considered the survey provided a clear understanding of how the store operates and concluded that '[c]ustomers tend to be very focussed on their purchase and the majority buy only one or two items, spending little if any time browsing'.
The issue in this case as to whether the proposed use can be characterised as a 'Shop' is dependent on whether the goods sold to the public are generally in small quantities. The Tribunal finds that the proper classification of the proposed use is a 'Shop' for the following reasons. Firstly, the Scheme does not provide any guidance as to the measure of 'small' and therefore the determination of the quantities of the products, goods or services offered for sale is one of fact and degree in the circumstances of each case. In this instance, the sale of liquor by the carton or case is considered to be a common purchase made at all liquor stores, although the evidence suggests that purchases of this nature are more likely to occur at a Dan Murphy's liquor store than other types of liquor stores. The fact that a carton or case of liquor is larger in quantity than a six pack of beer or an individual bottle of wine or spirits does not necessarily mean that it is not being sold to the public in 'small quantities' for the purpose of the Scheme. The Tribunal is satisfied that in terms of retailing from a liquor store, the prevalence of the sale of liquor by the carton or case does not mean that goods are not being sold to the public in small quantities.
Furthermore, reading the defined term 'retail' in the context of the Scheme as a whole, the intention appears to be to distinguish retail sales of goods and services from 'wholesale' sales, which is referred to in the definitions of 'warehouse' and 'showroom'. The term 'wholesale' is not defined in the Scheme. In accordance with cl 10 of the Scheme, the term is therefore to bear its 'normal and common meaning'. The most relevant definitions of the noun 'wholesale' in the Macquarie Dictionary (5th ed, 2009) (Macquarie Dictionary) at 1885 is as follows:
1. the sale of commodities in large quantities, as to retailers or jobbers rather than to consumers directly (distinguished from retail).
There was no evidence to suggest that the sale of liquor will be 'to retailers or jobbers rather than to consumers directly'. Clearly, the proposed use does not entail 'wholesale' sales and for the purposes of the Scheme is considered to fall within the definition of 'retail'.
Given this finding, the proposed development is classified as a 'P' use in the Local Centre zone.
If the development is properly classified as a 'Shop', what is the extent of discretion available under TPS 1?
Ms Moharich, counsel for the applicant, accepted that planning approval was required for the change of use of the component of the building currently approved as 'Restaurant' to 'Shop', as well as the physical works to the existing building and associated car parking area. She disputed, however, the need for planning approval for the portion of the building already approved as 'Shop' as, in her submissions, the appropriate land use classification for a liquor store is 'Shop', and approval has already been obtained for that use class.
Clause 30 of TPS 1 relevantly provides:
(1)A person shall not begin or continue development of any land or building in the Scheme area, unless it is a development exempted by clause 31, without first having applied for and obtained planning approval.
(2)To avoid any doubt, development for which planning approval is required includes both use (which is subject to Part 2 of this Scheme) and development (which is the subject of Part 3).
Clause 31of TPS 1 sets out the developments that are exempt from obtaining planning approval and provides under subclause (g) the following unusual provision:
(1)Planning approval is not required for the following development ‑
…
(g)a change in the use of land or a building where the new use and the last approved use are within the same Use Class that does not:
(i)involve any internal works that alter the approved use areas; or
(ii)involve any external building works or that alters the external appearance of the building. (Emphasis added)
Clause 15 of the Scheme states that '[t]he Scheme Zoning Table, indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme Area in the various Zones'. The permissibility of uses is to be determined by cross‑reference between the list of use classes and the list of zones.
Ms Moharich argued that the Zoning Table in the Scheme identified use classes as 'nests' of uses and, for illustration purposes, referred to the 'nest' including 'Hospital', 'Nursing Home' and 'Residential Building'. She submitted that the 'nest' of uses comprised the use class and that cl 31(1)(g) of TPS 1 seeks to capture a change of use within the 'nest' of uses; say, for example, from 'Hospital' to 'Nursing Home' where the works specified in cl 31(1)(g)(i) or cl 31(1)(g)(ii) of the Scheme are being undertaken. On this interpretation, the applicant maintained that the change of use from the existing supermarket ('Shop') to a liquor store ('Shop') did not need approval as it did not involve a change between uses within the use class of 'Shop'. The applicant referred to the change as a 'change of tenancy'.
Mr Slarke, counsel for the respondent, argued that the concept put forward by the applicant is unorthodox and there is no reason not to apply the usual and orthodox approach; that is, the relevant definitions, as contained in the Scheme, are of use classes. He submitted that the grouping of uses in the Zoning Table was a convenient way of sorting different use classes which have the same permissibility across a range of zones and that the layout of the Zoning Table (for convenience of reading) does not lead to the conclusion that the 'nests' of uses become one use class.
An examination of the Zoning Table reveals that all nests/groupings, with the exception of 'Hazardous Industry, Noxious Industry' and 'Nightclub', have different use permissibility designations. An explanation for the exception could possibly be due to the 'Nightclub' use class being added to the Zoning Table after the gazettal of the Scheme. The analysis of the Zoning Table supports the submissions made by the respondent, and leads to the conclusion that the grouping of uses with common use permissibility is nothing more than a convenient way of displaying the permissibility of uses in the Zoning Table of the Scheme. There is nothing in the Scheme to suggest otherwise.
Clause 31(1)(g) of TPS 1 recognises that there may be any number of uses that fall within one use class, and captures the variations that may arise by requiring planning approval for any internal and external works between different uses within the same use class; for example, see definition of 'Shop' which also includes 'services of a personal nature'. In this instance, the existing use (supermarket) and proposed use (liquor store) fall within the same use class 'Shop'; however, an exemption is not provided under cl 31(1)(g) of the Scheme as the proposed development involves both internal works that alter the approved use areas and external works. Therefore, in this instance, planning approval is required for the change of use from the existing supermarket to liquor store and as such, the discretion provided under cl 36 of the Scheme in determining an application applies to this aspect of the proposed development.
Whether the development is consistent with the orderly and proper planning and the preservation of the amenities of the locality, having regard to:
the planning framework
The respondent contended the proposed development was inconsistent with the purpose and function of a 'Local Centre', which is intended to contain shops and services that cater for the day‑to‑day needs of local residents.
The Statement of Intent for the Carlisle Precinct provides as follows:
The Carlisle Precinct will remain a medium density residential area. Continued development of a range of dwelling types at this density is desirable given the proximity of the precinct to the city centre and good accessibility to a wide range of support facilities and regional transportation networks.
The majority of the precinct will continue to accommodate single houses or grouped dwellings at medium density. Existing appropriate retail and commercial uses will be permitted to continue in their current locations. A limited number of non-residential uses, to serve the immediate needs of the locality, will be permitted throughout the precinct. In the long terms [sic], uses considered incompatible with residential uses will be encouraged to relocate.
The respondent argued that a Dan Murphy's liquor store is a 'destination' store that attracts a district catchment similar to that of a district centre, and is not of a type or scale that serves the 'immediate' or 'daytoday' needs of local residents.
In his evidence, Mr Allerding acknowledged that part of the function of the proposed development is to cater for the 'daytoday' needs of local residents, but argued that the store's primary function was wider than that, as its catchment was similar to that of a district centre.
In two previous decisions, the Tribunal has considered the term 'daytoday needs'. In O'Connor and Town of Victoria Park [2005] WASAT 161, a review of a decision of the previous Town Planning Appeal Tribunal concerning the refusal to grant approval to a funeral parlour on land that was zoned Local Centre (Francis David O'Connor & Maria Ann O'Connor and Town of Victoria Park [2004] WATPAT 223), the President made the following observations at [71]:
Although the Senior Member did not refer to the dictionary definition of 'day‑to‑day', his analysis at [44] ‑ [45] of the reasons accords with the ordinary meaning of the term, and was correct. The adjective 'day‑to‑day' is defined in the Macquarie Dictionary (Revised Third Edition) at page 492 as 'ordinary; happening every day'. It is defined in the Australian Oxford Dictionary at page 338 as 'mundane, routine'. The Senior Member was correct in identifying the common characteristics of the indicative uses listed on Precinct Plan P12 (see [23] above) as to 'serve the needs, in a general sense, of the local population, if not every day, then as part of ordinary routine and regular activity'. This characteristic is inherent in the term 'day-to-day needs'. In its context in TPS1, the term implies uses which service daily material needs.
Further, in Project Development WA Pty Ltd and City of Bayswater [2010] WASAT 128 (Project Development), the Tribunal considered whether a liquor store with a drive through sales facility would be consistent with serving the 'day‑to‑day' shopping needs of the locality. As to the test to be applied to determine what 'day-to-day' might encompass, the Tribunal observed as follows, at [48]:
The Tribunal does not consider that the test should be that the product sold is required to be a vital 'need' in the sense of a life‑sustaining item, such as basic food, shelter and water, but rather, as stated in the TPS 13 definition, a 'day‑to‑day shopping need for many people'. In serving the day‑to‑day needs, the Tribunal considers that this does not require purchase on a daily basis but, rather, to be a product that is used daily, or at least several times a week, by many people. This would be in contrast to a purchase or service required regularly by a community but only rarely by an individual or family: O'Connor and Town of Victoria Park [2005] WASAT 161 at [71] ‑ [74].
Alcohol is not a necessity of life, but it is a necessary of daytoday life for many in our society. A liquor store of the type and scale proposed would, although not exclusively, serve the 'day‑to‑day' needs of the local residents. The fact that trade is not restricted to the local community does not necessarily mean that the proposed development is inconsistent with the intent of the Local Centre zone and fatal to the application. This approach is consistent with the decision of the Tribunal in Project Development where the Tribunal, at [47], found that catering to passing trade was not fatal to a proposal that served the 'daytoday' shopping needs of a locality. The Tribunal therefore considers the proposed development to be consistent with the intent of the Local Centre zone.
traffic management and safety issues
The respondent argued that the proposed development is inconsistent with orderly and proper planning and preservation of the amenities of the locality as the increase in traffic resulting from the proposed development will:
i)exacerbate an already undesirable traffic safety environment at both the Orrong Road access and the Orrong Road intersection with Archer Street;
ii)generate additional traffic on roads that are already operating over capacity;
iii)exacerbate already considerable traffic queuing and delays; and
iv)exacerbate an already unacceptable traffic safety environment at the Archer Street crossover.
Further, the respondent argued that the proposed development was inconsistent with orderly and proper planning in light of the inevitable changes to the design of Orrong Road, and that access to Orrong Road should be prohibited. The respondent contended that if the access to Orrong Road is not permitted and the only access to the site is from Archer Street, the additional traffic safety risk and congestion created by the development would be manifestly unacceptable.
The applicant argued that the rationalisation of crossovers would reduce existing conflict points on both Orrong Road and Archer Street, and that the extent of the additional traffic generated from the proposed development is less than the fluctuation between traffic volumes measured on weekdays on Archer Street and would be so small that it would have very little effect on the existing situation. The applicant also submitted that it was appropriate in the determination of this matter to consider the traffic that could be generated from the site now, that being IGA and a restaurant, and measure it against the traffic likely to be generated by the proposed development; that is, the change precipitated by changing the restaurant to a shop.
The Tribunal had the benefit of expert evidence from a large number of traffic witnesses. The number of witnesses was due largely to the various traffic issues being agitated. The respondent called the following traffic witnesses:
•Mr David Van Den Dries, Urban Road Planning Manager, MRWA;
•Mr Mohsin Aziz Muttaqui, Manager Transport Planning, Department of Planning;
•Mr Sergio Hernando Martinez, Project Manager Infrastructure Delivery, MRWA;
•Ms Heidi Herget‑Lansdell, a consultant traffic engineer and transport planner;
•Mr Neale McCracken, a consultant traffic engineer present as an expert in modelling; and
•Mr Tony Shaw, a consultant traffic engineer present as an expert in road safety auditing.
Mr Veal, a consultant transport planning and traffic engineer, was called on behalf of the applicant.
The assessment of the traffic impacts of the proposed development resulted in production of a considerable number of reports that were relied on by the parties, and include:
•Proposed Dan Murphy's Liquor Store Archer Street, Carlisle ‑ Traffic and Access Investigation, prepared by Uloth and Associates dated 14 November 2011 (Uloth Report);
•Proposed Dan Murphy's Liquor Store Archer St, Victoria Park ‑ Transport Impact Assessment Final, prepared by Donald Veal Consultants Pty Ltd dated April 2012 (TIA April 2012);
•Proposed Large Format Liquor Store Archer St, Victoria Park ‑ Transport Impact Assessment Final Rev 2, prepared by Donald Veal Consultants dated July 2012 (TIA July 2012);
•Traffic Counts and SIDRA Analysis for the Proposed Dan Murphy's Site at 232 Orrong Road, Carlisle ‑ Technical Note 1, prepared by Donald Veal Consultants dated November 2012 (Technical Note Nov 2012);
•Road Safety Audit. Access and Egress Arrangements to the Commercial Site located on the southwest corner of the intersection of Archer Street and Orrong Road, Carlisle, prepared by Shawmac dated November 2012 (Road Safety Audit);
•Technical Memorandum ‑ Paramics Modelling Report ‑ Saturday Scenarios for Dan Murphy's Archer Street, Victoria Park, prepared by Cardno dated November 2012 (Paramics Report); and
•Technical Memorandum ‑ Paramics Modelling Report ‑ PM Weekday Scenarios for Dan Murphy's Archer Street, Victoria Park, prepared by Cardno dated November 2012 (Paramics Report).
In addition, and as a part of the Tribunal's usual practices for conferral of experts, three joint statements of the traffic experts were filed relating to evidence on the road safety audit (Mr Veal, Mr Shaw and Ms Herget‑Landsdell), the Paramics traffic modelling (Mr Veal, Mr McCracken and Ms Herget‑Lansdell) and traffic impacts relating to Orrong Road (Mr Veal, Mr Muttaqui, Mr Marinez and Mr Van Den Dries).
Traffic Generation ‑ Existing and Proposed Development Scenarios
The traffic experts agreed that the pm peak hour period represented the 'worst case' scenario for site‑specific generation and that this period coincided with the peak roadway traffic on both Orrong Road and Archer Street.
In the TIA July 2012, Mr Veal undertook an assessment of traffic volumes for the existing and proposed use of the site. In this assessment, he accepted the survey results contained in the Uloth Report which observed that 'the peak hour traffic flows for the existing site occurred between 4:45pm and 5:45pm, with 86 vehicles entering and 85 exiting, 171 vehicles in total'. In order to estimate the daily traffic generation for the site, he assumed that the pm peak hour represents 10% of the daily traffic, which calculates to 1,710 vehicles per day (vpd).
Based on site observations of an existing Dan Murphy's liquor outlet of a similar size, Mr Veal estimated the weekday volume of traffic movement for the proposed development to be in the order of 1,900 trips, of which 260 were pm peak hour trips.
The nett increase in traffic generated by the proposed development compared to the existing development was estimated to be approximately 190 daily trips, with 89 pm peak hour trips. These figures were accepted by Ms Herget‑Lansdell.
It is also noted that Mr Veal carried out an additional survey on 13 November 2012 which observed 206 vehicle movements to and from the site in the pm peak hour, which would reduce the nett increase in traffic for the pm peak hour to 54 trips. This figure, however, was not used in estimating the trip distribution patterns or in the SIDRA analysis of options.
Mr Veal produced the following table to show the traffic distribution patterns for the pm peak hour for the existing and proposed use of the site.
Table 3.1: PM Peak Hour Trip Distribution, Turning Volumes in vph
(excerpt from Technical Note 2012)
| Orrong Road Crossover | Archer Street Crossover | Total | |||||
| Left In | Left Out | Left In | Right In | Left Out | Right Out | ||
| Existing | 10 | 60 | 48 | 28 | 6 | 19 | 171 |
| Proposed | 65 | 79 | 26 | 39 | 39 | 13 | 260 |
| No Orrong Rd Crossover | 0 | 0 | 26 | 103 | 105 | 26 | 260 |
Discussion about road capacity, the performance of the intersection of Orrong Road/Archer Street and accesses onto Orrong Road and Archer Street will be discussed below under the relevant road headings.
Orrong Road
There was no dispute that Orrong Road is currently an important regional road that will inevitably become of much greater importance as it is earmarked to become an important link between the Perth Central Business District (CBD) and the planned Consolidated Domestic and International Airports. It was also recognised as providing a strong connection to areas south/southeast of the Perth metropolitan area via the existing Tonkin Highway/Welshpool Road/Orrong Road and Roe Highway/Orrong Road, and provides a direct link to the Graham Farmer Freeway to suburbs north of the Perth CBD.
Orrong Road currently carries more than 52,000 vpd, which is well in excess of its practical capacity of 35,000 vpd for a four lane divided carriageway and consequently is under great pressure. The Tribunal was informed that MRWA forecast traffic volumes of 70,000 vpd in the vicinity of Archer Street and that there are currently three options under consideration for the upgrade of Orrong Road. The first option involves upgrading Orrong Road to a six lane dual carriageway with at-grade signalised intersections at major side roads. Two additional right turning lanes are also proposed in this section of Orrong Road; one into Alexander Road and the other into Archer Street. The Tribunal was told that planning design concepts for this option have been completed by MRWA, and the MRS has been amended to include the reservation of land for this purpose. According to Mr Martinez, this option entails the removal of all driveway access onto Orrong Road, with the provision of an access road that connections to Roberts Road and Archer Street. Although the concept plans show access to the subject lot onto the new access road, the details of how this is to be achieved are uncertain at the present time.
The alternate options currently under consideration by MRWA, at the request of the Minister for Transport, involve providing an expressway link between Graham Framer Freeway and the consolidated Perth Airport on the Orrong Road alignment. There are two scenarios being considered, with the first comprising an expressway on a viaduct with no connections to Orrong Road. Mr Martinez told the Tribunal that this option comprised an elevated expressway with two lanes in each direction, which would remove a substantial component of the traffic currently on Orrong Road leaving the current road configuration to service local needs. The second option provides for an expressway with limited interchanges. It is envisaged that this proposal would be at ground level along parts of Orrong Road and elevated or in tunnels for some other sections. According to Mr Martinez, the concept design for this option in the vicinity of the subject land would require the acquisition of the entire subject site to accommodate a future grade separated interchange, which currently includes a large roundabout at surface level with the expressway component in a tunnel.
Mr Veal held the view that option 1 had been superseded by the other alternatives, whereas Mr Muttaqui and Mr Van Den Dries argued that the six lane dual carriageway option was the only 'seriously entertained' proposal as the road requirements for that option were reflected in the MRS, and that the alternative options were uncertain and had no planning status. Mr Van Den Dries did acknowledge, however, that the progression of option 1 (six lane dual carriageway) had been delayed due to the investigation of the other options. Mr Martinez explained that the studies that are being undertaken in relation to an expressway 'are really just to test the feasibility' of those options and 'are ideas of possible upgrade solutions to Orrong Road'.
Although there was uncertainty surrounding which option would be implemented and that at present there was no funding for the upgrading of Orrong Road in the current works program and four years forward estimated, the general consensus amongst the respondent's witnesses was that the upgrading of Orrong Road is considered a priority project for the government and MRWA. The impetus being the airport consolidation and the 'Gateway WA' project with a completion date of 2017/2018. Further, the Tribunal was also told that the short term improvements for Orrong Road, identified by MRWA in 2010, will not proceed because of the imminent decision by the government in respect to the preferred option for the upgrading of Orrong Road.
All the traffic experts agreed that no matter which option proceeded, access onto Orrong Road would have to be rationalised and accepted that the proposed development would not preclude any of the road planning outcomes.
Further, the respondent's witnesses submitted that there are existing road safety issues on Orrong Road which arise because of the proximity of the driveways to the signalised intersection of Orrong Road/Archer Street, and argued that the proposed development, by its very nature of attracting passing trade, would exacerbate an already undesirable traffic safety environment. Mr Muttaqui and Mr Van Den Dries were concerned about the propensity for rear end collisions arising from vehicles turning into the driveway immediately after the traffic signals, and the potential for collisions involving vehicles turning left from the driveway crossing two lanes on Orrong Road to access the right turning lane to Alexander Road. It was noted, however, that the crash records of MRWA show that along the 30m length of Orrong Road north of Archer Street, there were five crashes associated with driveways and left turn movements onto Orrong Road over the five year period 2006 ‑ 2010. Mr Veal observed that the driveways on Orrong Road are 'historically safer than those located on Archer Street'.
Mr Veal considered the closure of the southernmost driveway on Orrong Road as a rationalisation of the existing crossovers, thereby decreasing the potential points of conflict. Mr Van Den Dries did not agree. He was at pains to explain to the Tribunal that the existing situation would remain unchanged as the existing turning movements (left in and left out) are to be retained. He described the existing situation as a 'crossover with a very wide medium'.
The SIDRA analysis of the Orrong Road driveway projected the turning volumes for the left in movement increasing from 10 vph to 64 vph in the pm peak hour. This increase represents a change from one vehicle every six minutes to more than one vehicle per minute. The SIDRA outputs for this movement indicated a Level of Service (LOS) A, although the report noted that 'the SIDRA results do not fully reflect the impact of the signalised intersection of Orrong Road/Archer Street due to the limitations of modelling the platooning effect of upstream traffic signals in such close proximity to the driveway'. Clearly, the outputs of the SIDRA analysis do not reflect the concerns raised by the respondent's witnesses or the magnitude of the change predicted in the increase of the left in turning volumes.
The Tribunal also notes that the SIDRA results also indicated that the turning movement involving left out for the pm peak hour currently operates at a LOS F, with vehicles queuing within the site (95% Back of Queue 13m). Queue lengths are expected to increase to 18.9m under the Dan Murphy's scenario, which will undoubtedly have an impact on the operation of the carpark.
Intersection of Orrong Road/Archer Street
The traffic experts agreed that the signalised intersection of Orrong Road/Archer Street operates at or beyond design capacity during peak periods. This conclusion is evident from the SIDRA analysis for the intersection (existing pm peak hour) which shows that several of the movements perform at a LOS E and F (unacceptable). Further, the number of crashes at the intersection recorded by MRWA for the five year period 2007 ‑ 2011 was 95, which was considered to be a significant level of crashes.
Mr Veal assessed the impact of the current operations on the intersection as 44 vph out of the 171 pm peak hour trips. He assessed the impact of the proposed development as an additional 44 trips (1%) to the weekday pm peak hour traffic using the traffic signals at the Orrong Road/Archer Street intersection, or an additional 105 trips (2.4%) if the Orrong Road driveways were closed. Based on these figures, the traffic experts agreed that the level of increase was considered to be small and insignificant in terms of impact on the operational performance of the traffic signals.
Further, the SIDRA analysis for the intersection of Orrong Road/Archer Street under current operational conditions revealed that the queue lengths for traffic on Archer Street turning left and right onto Orrong Road will increase as a result of the proposed development under both driveway scenarios. Extended queue lengths will undoubtedly impact on the level of service and delays experienced at the Archer Street driveway.
Archer Street
Archer Street currently carries between 13,500 vpd and 15,000 vpd, with approximately 1,259 and 1,138 vehicles during the am and pm peak hours respectively. Based on the nature of the existing road cross‑section and how it functions in the context of providing direct access to residential properties in the locality of the site, Ms HergetLansdell concluded that Archer Street is operating significantly over design capacity. Mr Veal did not consider the road crosssection to be the issue in this instance, but rather, the signals at the intersection of Orrong Road/Archer Street, which he accepted were operating beyond capacity in the pm peak hour, resulting in queue lengths extending beyond the existing Archer Street driveways. He told the Tribunal that 'in practice, the full length of this approach from Marchamley Street is used as two lanes during peak period, a distance of some 150 metres'. This account was consistent with the observations made by the traffic experts about the current difficulties experienced by vehicles accessing and exiting the Archer Street driveways because of the congestion on Archer Street during the peak periods.
To assess the operational performance of the driveway(s) on Archer Street under both the existing and proposed situations, an intersection capacity analysis was undertaken by Mr Veal, using the SIDRA modelling tool. The only measurable difference observed from the outputs of the SIDRA modelling for the pm peak hour was that the level of service for the left and right movements of the 'crossover' altered from LOS A for the existing development to LOS B for the proposed development for both driveway scenarios. In his witness statement, Mr Veal acknowledged that 'the impact is likely to be worse than indicated by SIDRA as the program does not take account of the impact on performance of queued traffic blocking back from Orrong Road, well beyond the site's driveway'. Mr McCracken was also critical of the queue length outputs, as the results only referred to '50% Back of Queue' lengths, rather than the '95% Back of Queue' lengths, suggesting that the model was not showing the full extent of the queuing.
Given the limitation of the SIDRA modelling, the respondent using Paramics (which is a micro simulation software package capable of simulating vehicle movements through a road network) modelled the behaviour of vehicles on the site during for the existing pm peak period as well as both driveway scenarios. The purpose of the exercise was to determine the extent of onsite queuing and delays during the 'worst‑case' traffic operations period, and to compare these results to the static results yielded by the SIDRA analysis. The following table shows the outputs of the Paramics modelling for delay times generated in respect to the existing and proposed development, with and without access onto Orrong Road (data taken from the witness statement of Ms Herget‑Lansdell and the Technical Note of Mr McCracken).
| Existing Archer Street Crossovers | Archer Street Crossover with Orrong Road Access (Scenario 1) | Archer Street Crossover with no Orrong Road Access (Scenario 2) | ||||
| Delay | LOS | Delay | LOS | Delay | LOS | |
| Left Out | 59s | F | 65s | F | 164s | F |
| Right Out | 41s | E | 88s | F | 175s | F |
| Right In | 15s | B | 23s | C | 15s | B |
According to Mr McCracken and Ms Herget‑Lansdell, the results of the Paramics modelling indicate the following:
•Scenario 1 ‑ '… that reallocation of green time from Archer Street to the right turn from Orrong Road would cause increased queuing and delays for Archer Street traffic. The increased traffic exiting the site will experience higher delay than the existing situation, with the potential to result in a gridlocked car park';
•Scenario 2 ‑ '… delay within the site will likely result in an inoperable car park, with potential knockon effects outside the site onto nearby public roads. This is considered to have significant road safety implications as vehicles may be forced to wait on Archer Street while the car park clears; this is highly undesirable for an operation perspective'; and
•'The proposed 'Keep Clear' markings will not provide the required mitigation as its intent will be undermined when on left‑turning vehicle takes up a position in this clear area when exiting the site. The vehicles will join the queue waiting for the lights on Orrong Road to change, and in the meantime will block the rest of the driveway.'
Mr Veal agreed the Paramics modelling was an appropriate tool to look at delays on crossovers but was uncertain about some of the inputs in the model raising concerns about the level of calibration achieved by the model and the assumed traffic movements in the forecast scenarios relating to trip distribution, bus dwell times and the number of bus movements within the peak hours. He stated that he 'was unable to tell whether the model replicas what was observed' and therefore had difficulty relying on the forecasts that it produced. He did, however, accept that the results of the Paramics model for the existing situation were more reflective of the observed levels of delay than that of the SIDRA results.
Both the SIDRA outputs for the Orrong Road/Archer Street intersection and the Paramics modelling for the proposed development scenario indicate that increased queue lengths and delays will be experienced for Archer Street traffic, which will predictably result in the site experiencing higher delays and longer queue lengths than the existing situation.
The traffic experts also considered the crash history on Archer Street for the five year period from 2006 to 2010. During this period, a total of 31 driveway crashes that could be attributed to the existing development were recorded. Ms Herget‑Lansdell considered the number of crashes to be 'an unacceptably high number' and Mr Shaw considered the number to be 'quite high and very much atypical'. Mr Veal accepted that the number of crashes was undesirable and indicative of a poor road safety environment. Mr Veal did, however, refer to the differences in the number of crashes per year recorded at the site, and indicated that there had been a reduction in crashes in 2010, to only two. He was unable to say whether the reduction was due to any modification to the road environment or simply a statistical anomaly. Additional data relating to driveway crashes on Archer Street for the period of 2007 ‑ 2011 was adduced at the hearing. This data indicated that during that period there were 44 driveway crashes of which six were recorded in 2011. Other than perhaps confirming the continuation of crashes on Archer Street, these figures are of little assistance as they capture crashes on both sides of Archer Street.
Mr Shaw and Mr Veal agreed in the joint statement that 'generally, the level of risk to road users would increase as exposure is increased; that is, if more vehicles were to be introduced onto the road network, the likelihood of a crash occurring would increase'. Both Mr Shaw and Mr Veal agreed that under the proposed development there was likely to be a 3% increase in the magnitude of risk for the pm peak hour, which was considered to be a 'low' level of risk. For the scenario involving the closure of the Orrong Road access, it was accepted that the increase in traffic on Archer Street would be in the order of an additional 159 vehicles for the pm peak hour, which would equate to a 20% increase in the magnitude of risk. This increase in exposure was considered by Mr Shaw to be a moderate to high level of risk, whereas Mr Veal considered it to be a moderate level of risk.
Mr Veal argued that the improvements identified in the Road Safety Audit and a further audit of the detailed design would assist in reducing the level of risk, and he did not consider that there were any road safety issues that would warrant refusal of this application.
Mr Shaw considered the level of risk for the existing situation to be unacceptable and, therefore, any change above that level was unacceptable. He submitted that from a road safety point of view, initiatives would need to be put in place that would reduce the level of risk to an acceptable level. He was unable to say whether the suggested improvements contained in the Road Safety Audit would exercise the level of control to reduce the risk to an acceptable level, as they are yet to be proven. This uncertainty was confirmed during the hearing where Mr Veal agreed that the relocation of the driveway, which will improve sight lines to the east, would result in the introduction of a new risk for sight lines to the west for vehicles turning right when a bus is stationary at the bus shelter.
Tribunal's considerations
The evidence clearly demonstrates that Orrong Road, Archer Street, and the signalised intersection of Orrong Road/Archer Street are operating beyond capacity, with high levels of congestion and with considerable issues with respect to road safety. The evidence relating to the performance of the exiting driveways on Orrong Road and Archer Street is not as certain given the limitations of the modelling. The SIDRA analysis, undertaken by Mr Veal, suggested that the existing driveways on both Orrong Road and Archer Street are performing at an acceptable level. However, the failure of the modelling to take into account the impact of 'blocking back behaviour' and the 'platooning' effect of the traffic signals on the existing performance of the driveways is considered to be a fundamental flaw. The results of the SIDRA modelling are clearly contrary to the observed patterns of delay and frustration identified by all the traffic experts. The Tribunal has more confidence in the results generated by the Paramics modelling for the existing situation, which indicated that the driveways on Archer Street operate at a LOS B ‑ F. As accepted by Mr Veal, these results are reasonably representative of the existing situation.
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 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.
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. The Tribunal does not need to determine whether the Orrong Road crossovers should be closed and access restricted to Archer Street, as the resultant impacts of the proposed development are sufficient to warrant refusal of this application.
The applicant argued that it was appropriate to consider the traffic that could be generated by the existing site and measure it against the traffic likely to be generated by the proposed development. The applicant asserted that the current IGA store was significantly underperforming and, based on a survey of other similar IGA stores, estimated the likely peak hour traffic generation to be in the order of 317 vehicle movements. No evidence was adduced on the likely vehicle movements to be generated if the restaurant was operating.
In his witness statement, Mr Veal submitted that 'the volume of additional traffic forecast is no more than could be expected were the current land uses on the site operating at typical levels observed at similar premises elsewhere in Perth'. During concurrent evidence, Ms Herget‑Lansdell accepted 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.
The consideration of the potential traffic that could be generated by the existing site does not advance the applicant's case for the following reasons. Given the current poor road environment and without further evidence as to why the current store is underperforming, the Tribunal cannot assume in favour of the applicant that under different management arrangements, the current approved use would generate greater traffic for the supermarket. As suggested by the respondent, the existing poor road environment could very well be a factor affecting the performance of the site. Any change to the current use is a matter of speculation and should not be a consideration in the determination of this matter. Further, the consideration of the potential traffic that could be generated if the restaurant was operating does not assist, as a restaurant has different operational characteristics to a liquor store and a supermarket. The peak hour for the restaurant would likely be beyond the peak hour for the road network and, as such, would have little impact on traffic movements during the pm peak hour.
The applicant also argued that the estimated increase in traffic for the proposed development is less than the fluctuation between traffic volumes measured on weekdays on the road network. This argument does not assist the applicant's case, as all the variation suggests is that the level of risk for one day may be better than another day, but as articulated by Mr Shaw, 'the fact that you are putting more vehicles on the adjacent network does by virtue of increasing the exposure theoretically increase the risk'.
Conclusion
Due to the traffic and safety issues discussed at [37] [82], approval of the application would, therefore, be contrary to the orderly and proper planning of the locality and the preservation of the amenities of the locality. Consequently, the proposed development warrants refusal.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
1
2
3