Wanneroo North Pty Ltd and City Of Wanneroo - [2008] WASAT 206

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WANNEROO NORTH PTY LTD and CITY OF WANNEROO [2008] WASAT 206

MEMBER: MR D R PARRY (SENIOR MEMBER)
MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: 26 AUGUST 2008, 27 AUGUST 2008 AND 1 SEPTEMBER 2008

DELIVERED : 10 SEPTEMBER 2008

FILE NO/S: DR 171 of 2008

BETWEEN: WANNEROO NORTH PTY LTD
ENDEAVOUR PROPERTIES PTY LTD
Applicants
AND
CITY OF WANNEROO
Respondent

Catchwords:

Town planning - Structure plan - Neighbourhood shopping centre with maximum nett lettable area of 4,600 square metres - Replacement and consolidation of two neighbourhood shopping centres with combined maximum nett lettable areas of 4,600 square metres - Whether consistent with strategic and statutory planning framework - State Planning Policy No 4.2 - Metropolitan Centres Policy - Council Centres Strategy - Liveable Neighbourhoods - Size - Location - Walkability - Reduction in car dependence - Main street principles -

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Whether proposal would prejudice review of Council Centres Strategy - Current and future amenity - Access to retail - Traffic

Legislation:

City of Wanneroo District Planning Scheme No 2, Pt 9, cl 3.13.3, cl 3.14.1, cl 3.14.3, cl 3.14.4, cl 9.5, cl 9.6.4, cl 9.7.1, cl 9.12.3

Result:

Agreed Structure Plans amended subject to approval of the Western Australian Planning Commission

Category: B

Representation:

Counsel:

Applicants: Mr P McQueen with Ms A Patterson
Respondent: Mr S Allerding (Acting as Agent)

Solicitors:

Applicants: Lavan Legal
Respondent: Allerding & Associates (Town Planners)

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

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned applications to amend Agreed Structure Plans for two cells of urban development land in East Wanneroo. The applications propose the reclassification and rezoning of land to remove two neighbourhood shopping centres which are each located on a local distributor road in the centre of a residential cell and to consolidate the combined floor space of these centres into a single proposed neighbourhood centre on a district distributor road at the edge of one cell and a short distance from the edge of the other cell.
The principal issues were:
•whether the proposal is consistent with the strategic and statutory planning framework;
•whether approval of the proposal would prejudice a review of the relevant Centres Strategy; and
•whether the proposal would have a detrimental impact on current or likely future residential amenity.
The Tribunal determined that the proposal is consistent with the strategic and statutory planning framework that consists principally of the State Metropolitan Centres Policy, the local Centres Strategy and Liveable Neighbourhoods. The proposed site is conveniently accessible by a range of transport modes including walking, cycling, cars and commercial and service vehicles and is likely to ultimately be serviced by public transport. Owing to its location and drawing power, the proposed site is likely to be an improvement on the currently approved sites in these respects. The Centres Strategy envisages the type of proposal that is the subject of the proposed amendments. The proposed site lends itself to main street design. The proposal involves an urban structure containing a walkable catchment and reduces car dependence by encouraging multiple purpose trips.
The Tribunal determined that the proposal would not prejudice the review of the Centres Strategy. The proposal is anticipated by the Centres Strategy independently of the review. It will provide direct and convenient access for the relevant residential neighbourhoods to an appropriate, sustainable and successful neighbourhood centre, while not affecting the viability of any retail centre outside the neighbourhoods.

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It also meets each of the sustainability principles in relation to social and environmental considerations, as well as economic considerations, identified in the review discussion paper.

Finally, the Tribunal determined that the proposal would not have a detrimental impact on current or likely future amenity. In particular, it will provide appropriate and superior access and accessibility to retail and it will have an acceptable impact on traffic on a relevant local distributor road.
In consequence, the Tribunal amended the Agreed Structure Plans, subject to the approval of the Western Australian Planning Commission, and required the Council to forward the amended Agreed Structure Plans to the Commission for its approval.

Introduction

These proceedings involve applications brought by Wanneroo North Pty Ltd and Endeavour Properties Pty Ltd (applicants), pursuant to cl 9.12.3 of the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme), for review of the deemed refusal by the City of Wanneroo (City or Council) under cl 9.6.4 and cl 9.7.1 of the Scheme of proposed amendments to the East Wanneroo Cell 1 (Tapping and Ashby) Agreed Structure Plan (Cell 1 ASP) and the East Wanneroo Cell 2 (Sinagra) Agreed Structure Plan (Cell 2 ASP) (together, Agreed Structure Plans).
The land that is subject to the Agreed Structure Plans is zoned 'Urban Development' under DPS 2. The purpose of this zone is:
To provide for the orderly planning and development of larger areas of land in an integrated manner within a regional context whilst retaining flexibility to review planning with changing circumstances. (DPS 2, cl 3.14.1)
Clause 3.14.3 of DPS 2 states that subdivision and development may not be carried out in the zone until an Agreed Structure Plan has been prepared and adopted under Pt 9 of the Scheme. Clause 3.14.4 of DPS 2 states that the permissibility of uses in the zone shall be determined in accordance with the provisions of the relevant Agreed Structure Plan.
It appears that the Cell 1 ASP was adopted by the Council and the Western Australian Planning Commission (Commission) in about 2003 and has been amended 11 times since. The Cell 2 ASP was adopted by the Council on 4 November 2003 and by the Commission on 30 June 2004 and has been amended once.

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The proposed amendments to the Agreed Structure Plans involve the reclassification and rezoning of Lot 25 Ashley Road, Tapping (Tapping site), which is located centrally in Cell 1, and Lot 19 Vincent Road, Sinagra (Sinagra site), which is located centrally in Cell 2, from 'Neighbourhood Community Purpose' and 'Centre Zone' to 'Residential Precinct' and 'Buffer Precinct' with a residential density coding of 'R20' or 'R40', and the reclassification and rezoning of Lot 9602 Pinjar Road, Ashby (proposed site), which is located at the eastern edge of Cell 1 approximately midway between the Tapping and Sinagra sites, from 'Residential Precinct' with a density coding of 'R20' and 'R40' to 'Neighbourhood Community Purpose' and 'Centre Zone' with maximum nett lettable retail area of 4,600 square metres. Under the Agreed Structure Plans, the Tapping and Sinagra sites are the only properties planned to accommodate neighbourhood centres in the relevant cells. While the Agreed Structure Plans state that the maximum nett lettable retail areas for the Tapping and Sinagra sites are 4,250 square metres and 2,850 square metres, respectively, the City of Wanneroo Centres Strategy (Centres Strategy) adopted in January 2005 states that the maximum nett lettable retail areas for these centres is 2,200 square metres and 2,400 square metres, respectively.
In essence, the proposed amendments to the Agreed Structure Plans involve the removal of the two neighbourhood centres located centrally in each of Cells 1 and 2 and their replacement with a consolidated neighbourhood centre located centrally in the combined areas of Cells 1 and 2.
The following plans are attached to these reasons:
•Attachment A - a plan showing the combined areas of Cells 1 and 2 enclosed in solid lines with the locations of the Tapping site, the proposed site and the Sinagra site shown hatched (although the Sinagra site occupies only approximately the northern 40% of the area shown hatched);
•Attachment B current Cell 1 ASP;
•Attachment C current Cell 1 zoning plan;
•Attachment D - proposed Cell 1 ASP;
•Attachment E - proposed Cell 1 zoning plan;

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•Attachment F current Cell 2 ASP;
•Attachment G current Cell 2 zoning plan;
•Attachment H - proposed Cell 2 ASP; and
•Attachment I - proposed Cell 2 zoning plan.

Cells 1 and 2 are separated from one another by Pinjar Road which is classified as a district distributor road. Mr Jonathan Riley, a traffic engineer who gave evidence on behalf of the applicants, indicated that the City has advised that Pinjar Road will carry 29,000 vehicles per day to the south of Caporn Street, which forms part of the northern boundary of Cell 2 and intersects with Pinjar Road a short distance to the south of the proposed site, and 21,500 vehicles per day to the north of Caporn Street. Mr Riley said that the forecast traffic volumes indicate that a fourlane divided carriageway will be required and that the Council is planning to alter and upgrade the intersection of Caporn Street and Pinjar Road to provide a fourway roundabout that would also include an intersection with Hollosy Way which abuts the southern boundary of the proposed site. Hollosy Way is a local distributor road which the Council estimates will carry 5,000 vehicles per day, assuming that the designation and zoning of the proposed site under the Cell 1 ASP does not change.

Background

The applications to amend the Agreed Structure Plans were lodged with the City over two years ago, in July 2006. In January 2007, further clarification of the proposed amendments was provided.
In early 2007, the applications were advertised for public comment in accordance with cl 9.5 of DPS 2. A total of 49 submissions were lodged, five in support and 44 in opposition to the proposed amendments. Twenty-six objections consisted of a pro forma letter without additional comments. Two of the submissions in support and 31 of the submissions in opposition were from residents in the precinct to the south of the proposed site bounded by Hollosy Way to the north, Pinjar Road to the east, Seurat Place to the south and Carosa Road to the west.
The applications were considered by the Council at three meetings, on 28 August 2007, 11 March 2008 and 8 April 2008. On each occasion, the Council's Director or Acting Director of Planning and Development recommended that the Council should grant approval. The Council did not accept this recommendation. On the first occasion, the Council

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resolved to refer the matter back to Council administration for further consultation and to organise a public meeting. On the second occasion, after a public meeting was held on 3 October 2007, attended by 42 local residents, the Council resolved to defer consideration of the applications until the completion of a review of the Centres Strategy (Centres Strategy Review). On the third occasion, when requested by the applicants to reconsider its decision, the Council resolved to defer consideration of the proposed amendments until completion of the Centres Strategy Review and a review of the retail floor space requirements in Cells 1 and 2 for the following reasons:
1.The increase in the size of the shopping centre in relation to what was originally proposed for East Wanneroo Cell 1 in the current City's Centres Strategy.
2.The potential overprovision of retail floor space in East Wanneroo Cell 1 which may affect the viability of the proposed centre.
3.Altering the character of Hollosy Way to being a Boulevard due to the likely increase in traffic volume to more than 7,000 vehicles per day.
4.Social and amenity issues associated with the shopping centre.

The applications were supported by a retail study prepared by Mr Ian Booth of IBECON Pty Ltd which showed that, whereas turnover rates for neighbourhood centres at the Tapping and Sinagra sites would be low compared with other similar supermarketbased centres in WA, the turnover rates forecast for the neighbourhood centre at the proposed site would compare favourably with other supermarketbased shopping centres in the State. Mr Booth also found that there is generally an under supply of retail provision in the area and that the impact of a neighbourhood centre at the proposed site would be negligible for other centres in the catchment. The City's professional staff commissioned an independent retail consultant, Taktics4, to review the IBECON study. The Taktics4 review supported the IBECON assessment.
The applications were also supported by a traffic assessment prepared by Mr Riley. The City's traffic section reviewed Mr Riley's report and concluded that the proposed centre is unlikely to have a significant detrimental impact on Hollosy Way.

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The report of the Council's Director of Planning and Development to the Council meeting on 28 August 2007 referred to the Taktics4 review and the City's traffic section review supporting the proposed amendments. This report also provided detailed comments on the submissions that were received. The report of the Acting Director of Planning and Development to the Council meeting on 11 March 2008 discussed the matters raised at the public meeting.
On 6 May 2008, the applicants commenced these proceedings for review.

Issues for determination

The following three principal issues arise for determination in these proceedings:
1.Whether the proposal is consistent with the strategic and statutory planning framework.
2.Whether approval of the proposal would prejudice the Centres Strategy Review.
3.Whether the proposal would have a detrimental impact on current or likely future residential amenity.
The Tribunal will address each of these issues after referring to the retail planning evidence.

Retail planning evidence

The Tribunal had the benefit of retail planning evidence from:
•Mr John Syme, a specialist in strategic and economic planning of retail centres; and
•Mr Brian Haratsis, an economist and strategic planner with considerable experience in relation to retail planning.
Mr Booth did not give evidence because he has retired. However, Mr Syme considered and endorsed the IBECON report. As noted earlier, the Council's independent consultant, Taktics4, also supported the IBECON assessment, but the City did not call evidence from Taktics4 or any other retail planner.
The retail planning experts gave the following evidence:

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•The neighbourhood centre contemplated by the Cell 2 ASP and the Centres Strategy for the Sinagra site may never be built and, if ultimately some retail development takes place on the Sinagra site, it is likely to be small. This is because slightly less than half of Cell 2 is zoned 'Buffer Precinct' under the Cell 2 ASP including the land adjoining the Sinagra site to the west, south and east (see Attachment G), owing to a large poultry farm that operates in the southern part of Cell 2, and the Cell 2 ASP states that residential development will only be supported by the Council if either the poultry farm ceases operation indefinitely or an applicant can demonstrate that the odour impacts can be ameliorated to the satisfaction of the Council, the Commission and the Department of Environment and Conservation. However, by the time the poultry farm ceases indefinitely or an applicant can demonstrate that odour impacts can be ameliorated, it is likely that other retail centres in the area will have been developed, with established catchments, making it unlikely that the Sinagra site will be developed, even in the long term, to the extent contemplated in the Cell 2 ASP and the Centres Strategy. Most significantly, the Wanneroo Town Centre, which is a district centre envisaged in the Centres Strategy as ultimately comprising a maximum of 30,000 square metres nett lettable retail area, is located only approximately 1 kilometre to the south of the Sinagra site and within 600 metres of the southern part of Cell 2. Mr Haratsis noted that the Wanneroo Town Centre will perform both a district function and a neighbourhood function for the land in the vicinity of the Sinagra site, if and when that land is developed for residential purposes.
•The neighbourhood centre at the Tapping site is unlikely to be developed to the extent contemplated in the Cell 1 ASP and the Centres Strategy, because it is located in the centre of Cell 1 and on a local distributor road.
•While smaller neighbourhood centres can be viable if strategically located, it is appropriate for a neighbourhood centre planned for the next 30 years at least to have a nett lettable area of approximately 4,500 square metres so that

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it can include a 3,000 square metre full line supermarket that can anchor 1,500 square metres of speciality shops.
•In contrast to the two smaller neighbourhood centres contemplated in the Agreed Structure Plans, which are either unlikely to be developed or developed at a smaller scale than envisaged, the 4,600 square metre neighbourhood centre at the proposed site is strategically located to serve the surrounding residential area in Cells 1 and 2 and will operate in a sustainable and successful manner. In particular, the proposed site is well located because it is at the intersection of a district distributor road and a local distributor road, attracting passing trade, and located on the 'going home' side of the district distributor road, enabling convenient shopping on the way home from work, and is sufficiently large to accommodate a full line supermarket and specialty shops, as well as nonretail uses.
•Whereas, assuming that the Tapping and Sinagra sites were developed with neighbourhood centres of the sizes contemplated in the Agreed Structure Plans and the Centres Strategy, they would each have a walking catchment of no more than 400 metres (about 5 6 minutes' walk), because of its superior location and drawing power, the envisaged neighbourhood centre at the proposed site would have a walking catchment of 800 metres (about 10 12 minutes' walk).
•A 4,600 square metres neighbourhood centre at the proposed site would not endanger the viability or success of any other centre outside Cells 1 and 2. The proposed neighbourhood centre would generate an additional $4.3 million in turnover per annum in comparison to the neighbourhood centres at the Tapping and Sinagra sites, assuming that these were developed to the extent envisaged. This amount is minor in terms of the total turnover in the catchment. Indeed, the anticipated growth in the catchment between 2008 and 2016 is $77 million.

Other material aspects of the retail planning evidence are discussed later in these reasons. Having regard to the qualifications and extensive, relevant experience of Mr Syme and Mr Haratsis, and the fact that their

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evidence was essentially unquestioned and entirely uncontradicted, the Tribunal accepts their evidence in full.

Is the proposal inconsistent with the strategic and statutory planning framework?

The parties agree that the three principal elements of the strategic and statutory planning framework are:
•State Planning Policy No 4.2 - Metropolitan Centres Policy Statement for the Perth Metropolitan Region (SPP 4.2);
•The Centres Strategy; and
•Liveable neighbourhoods - a Western Australian government sustainable cities initiative (Liveable Neighbourhoods).

SPP 4.2

The principal purpose of SPP 4.2 is 'to provide a broad regional planning framework to coordinate the location and development of retail and commercial activities in the metropolitan region' (cl 2.4). The policy is intended to provide 'a guide for centre development that is flexible enough to enable commercial development to respond to market conditions and has a degree of certainty to assist in commercial investment decisions' (cl 2.5). The objectives of the policy are relevantly to establish a hierarchy of welllocated centres in the metropolitan region that will:
promote Neighbourhood Centres, Local Centres and corner shops as performing a vital role in providing the daytoday convenience shopping for the neighbourhood as well as an important focus for neighbourhood services and community facilities; (cl 3)

Clause 4.1.4 of SPP 4.2 states that:
Centres should be developed to be conveniently accessible by a range of transport modes including walking, cycling, public transport, cars and commercial and service vehicles as well as by people with disabilities.
Clause 4.2.5 of SPP 4.2 states that 'shopping floor space should generally be confined to 4,500 square metres' for neighbourhood and local centres. Similarly, Appendix 1 states that shopping floor space for neighbourhood and local centres should be 'up to 4,500 square metres'.

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Appendix 1 also states that the 'preferred location' for such centres is 'local distributor road and bus route'.

Mr Benjamin Doyle, a town planning consultant who gave evidence on behalf of the applicants, considers that the proposal is generally consistent with SPP 4.2. The Tribunal agrees. While the size of the proposed centre is 100 square metres greater than 4,500 square metres, the word 'generally' in cl 4.2.5 of SPP 4.2 provides some flexibility and the retail planning experts described the difference as 'insignificant' and 'almost not measurable' from a retail perspective. The size of the proposed centre is also consistent with the maximum size of neighbourhood centres for Cells 1 and 2 envisaged in the Centres Strategy.
Although the proposed site is located at the intersection of a district distributor road and a local distributor road, rather than on a local distributor road, as Mr Doyle explained, this aspect of SPP 4.2 reflects superseded planning theory and the Centres Strategy, which postdates SPP 4.2, identifies the 'preferred location' of neighbourhood centres as 'district distributor road intersection and bus route, on the edge of the catchment area', whereas for local shops and centres, it is 'main local distributor road intersection'.
Having regard to the evidence of Mr Syme and Mr Haratsis, and Mr Doyle, the neighbourhood centre envisaged for the proposed site would be conveniently accessible by a range of transport modes, including walking, cycling, public transport, cars and commercial and service vehicles, as well as by people with disabilities. As noted earlier, because of its location and drawing power, the envisaged neighbourhood centre would have a walking catchment of 800 metres. In contrast, the neighbourhood centres at the Tapping and Sinagra sites, if developed to the extent envisaged in the Agreed Structure Plans, would each have a maximum walking catchment of 400 metres. In consequence, the proposal would result in between 260 and 328 more lots in Cells 1 and 2 being within likely walking distance than would be the case if both the Tapping and Sinagra neighbourhood centres were developed to the extent envisaged in the Agreed Structure Plans. Similarly, Attachment A shows that 33 hectares more developable area within Cells 1 and 2 would be within the walking catchment of the proposed site than would be within the walking catchments of the Tapping and Sinagra sites. The walking catchment of the proposed site also includes part of the Tapping site. Moreover, given that the Sinagra site is unlikely to be developed for a neighbourhood centre and that the Tapping site is unlikely to be

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developed for a neighbourhood centre of the size envisaged, the proposal is likely to result in an even more significant increase in the number of lots and developable area being within likely walking distance to the centre.

In relation to cycling, Mr Riley gave evidence that Pinjar Road is likely to be developed with a dedicated 1.5 metre wide cycle lane providing convenient access to the proposed site.
In relation to cars, commercial and service vehicles, Mr Riley gave evidence that the proposed site provides appropriate access and is superior to the Tapping and Sinagra sites in these respects, because those sites are at the centres of the cells, accessed via local distributor roads and through residential areas.
Furthermore, as the retail planning experts, and Mr Doyle, each said, the proposed site is likely to result in multiple purpose trips, including shopping trips on the way home from work, thereby reducing the total number of vehicle trips generated in the area.
Finally, while Transperth has indicated that it has no plans in the foreseeable future to operate a bus route along Pinjar Road, the Tribunal accepts Mr Doyle's evidence that if the proposed site were developed in the manner envisaged in the applications, then appropriate public transport would be provided to access the site. As Mr Doyle pointed out, the proposed site is located approximately midway between the Wanneroo Town Centre and the Banksia Grove District Centre. It would seem sensible for public transport planning to connect these two important centres, particularly if the proposed site were developed in the manner envisaged in the applications.

Centres Strategy

The Centres Strategy contemplates that each of Cells 1 and 2 will be serviced by a separate neighbourhood centre with a maximum nett lettable area of 2,200 square metres for Cell 1 and 2,400 square metres for Cell 2. However, the Centres Strategy contains the following important point for neighbourhood centres in East Wanneroo:
The Council may wish to review distribution of neighbourhood centres with a view to allowing more strategic locations. In some instances, where developers or owners are reluctant to hold commercial sites not well located, it would be better to reallocate that floor area to more strategically located sites on more important roads. Any such move should be based on 'main street' planning principles.

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Consistently with this point, the Centres Strategy contains the following measure:
That the Council in conjunction with the Department for Planning and Infrastructure review the possibilities for combining and/or relocating neighbourhood centres to more strategic locations, based on 'main street' planning principles.
The Tribunal agrees with Mr Doyle that these provisions of the Centres Strategy envisage the type of proposal that is the subject of these proceedings.
Mr Stephen Allerding, a consultant town planner who represented the City, submitted that this measure does not contemplate consolidation of the neighbourhood centres by amendments to the Agreed Structure Plans. In particular, Mr Allerding referred to the words 'in conjunction with' and relied on the dictionary meaning of the word 'conjunction' which, according to The Macquarie Dictionary (4th Ed, Sydney, 2005) relevantly means 'combination' or 'association': page 311. However, cl 9.7.1 of DPS 2 requires that, for an amendment to be made to an Agreed Structure Plan, the amendment must also be approved by the Commission. While the Commission is a separate entity to the Department for Planning and Infrastructure, the two authorities are closely related and the Department services the Commission. The Tribunal considers that the assessment of an amendment to the relevant Agreed Structure Plans by the Council and by the Commission relevantly satisfies the measure for reviewing the possibility of combining and/or reallocating neighbourhood centres to more strategic locations by the Council in combination or in association with the Department.
Furthermore, contrary to the City's submission, the measure does not require that it occur as part of the Centres Strategy Review. The Centres Strategy separately contemplates review of that document by the Council after 2006. Further, while the author of the Centres Strategy Review has consulted with senior officers of the Department for Planning and Infrastructure, such consultation does not mean that the review is undertaken in combination or in association with the Department; rather, the review is that of the City, although it consults with the Department. In contrast, approval of an amendment to an Agreed Structure Plan requires both the Council and the Commission.
Ms Amanda Butterworth, a town planning consultant who gave evidence on behalf of the City, considers that, although the proposed site may well be able to accommodate main street principles, the proposal is

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not consistent with the point and measure in the Centres Strategy set out above because the applicants have not produced a detailed design. However, as Mr Doyle observed, the Centres Strategy does not require the level of detail envisaged by Ms Butterworth at the strategic planning stage. What is required at the strategic planning stage is satisfaction that the site is capable of development in accordance with main street planning principles. Main street planning principles, as they apply to the Centres Strategy, means:
Mixed land use developments fronting to a street in a manner whereby pedestrian access to the majority of individual businesses can be achieved directly from the street and/or where customer car parks on private property generally do not separate the road reserve boundary from the front of a building.

The Tribunal accepts Mr Doyle's evidence that the proposed site lends itself to main street design, because it has frontages to a district distributor road, a local distributor road and a local road, the size of the site and the size and viability of the envisaged centre. The Tribunal also accepts the evidence of Mr Haratsis, based on experience in the design and development of other similar neighbourhood centres, that the layout and location of the site makes it 'fairly easy' to incorporate main street design, and that, because design is a complex and involved process and requires discussion with major tenants, it is inappropriate to attempt it at the strategic planning stage. The consequence of rezoning the proposed site to 'Centre Zone' under DPS 2 is that no subdivision or development can take place on the site until a further Agreed Structure Plan has been prepared and adopted under Pt 9 of the Scheme: cl 3.13.3 of DPS 2. This process, and the detailed development application process, provides adequate and appropriate opportunity to demonstrate detailed main street design. It is adequate, for present purposes, to find that the site lends itself to design according to main street principles.
Finally, Ms Butterworth and Mr Allerding referred to Figure 1 of the Centres Strategy which is a diagrammatic representation of main street principles in terms of commercial hierarchy. Mr Allerding notes that a text box pointing to a location adjoining a major road on Figure 1 states:
Neighbourhood centres at entrances to residential neighbourhoods with exposure to major roads but with no direct access
Mr Allerding contends that the proposal does not satisfy this text box, because an indicative layout plan prepared for the purposes of traffic analysis shows a 'boxlike' development with access from Pinjar Road.

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However, putting aside the limited purpose for which the plan was prepared and the need for a further Agreed Structure Plan and development application which, consistently with the Centres Strategy and Liveable Neighbourhoods, will need to demonstrate main street principles, the planning experts agreed that Figure 1 is not intended to function as an urban design guideline, whereas Liveable Neighbourhoods is. Page 1 of Element 7 of Liveable Neighbourhoods states that:
Centres capitalise on, relate to and address arterial roads rather than just using them for access. (Emphasis added)

This text and indicative outlines of small neighbourhood centres in Figure 72 on page 8 of Element 7 show that neighbourhood centres can both obtain access from arterial roads and still be deigned to demonstrate main street principles.
Mr Allerding also submits that Figure 1 of the Centres Strategy shows that the proposal is not contemplated, because the proposal is at the edge of Cell 1, across Pinjar Road from land zoned 'Rural' under DPS 2. However, Figure 1 is diagrammatic only and does not preclude a neighbourhood centre in the proposed location. Figure 1 shows neighbourhood centres at the entrances to residential areas demarcated by major roads. The proposed site is at the entrance to a residential neighbourhood and on a major road. Although it is opposite a rural area, it is a short distance to the north of Cell 2 and is in a convenient location to Cell 2 through Pinjar Road which is the major road providing access to that cell. The proposal to replace two neighbourhood centres within the Cells and not on major roads with a single consolidated centre on a major road in the location of the proposed site is consistent with Figure 1 of the Centres Strategy. Figure 1 shows that only local shops should be located within cells away from major roads.
The size of the proposed neighbourhood centre is consistent with Table 5.1 of the Centres Strategy that specifies a maximum size of 5,000 square metres where siting criteria are satisfied. The siting criteria are identified in relation to 'preferred location' in Table 5.1 as 'district distributor road intersection and bus route, on the edge of the catchment area'. The proposed site is at a district distributor road intersection and at the edge of the catchment area in relation to Cell 1 and very close to the edge of the catchment area in relation to Cell 2. Taking the areas of Cells 1 and 2 as a single catchment area, which is appropriate based on the retail planning evidence referred to earlier, the proposed site is at the edge of the catchment area. As noted earlier, while Transperth does not presently

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have any plan to provide a bus service along Pinjar Road, it is likely that a bus service will ultimately be provided if the proposal proceeds. In contrast, the Tapping and Sinagra sites are located on local distributor roads which is identified in Table 5.1 as the 'preferred location' for local shops and centres, rather than for neighbourhood centres.

Ultimately, the Tribunal accepts Mr Syme's evidence that the fundamental purpose of the Centres Strategy is to provide retail amenity for residential neighbourhoods. The retail planning evidence clearly shows that, for retail planning and amenity purposes, Cells 1 and 2 are a single residential neighbourhood. The proposal satisfies the Centres Strategy general principle for neighbourhood centres that 'each residential neighbourhood should have direct and convenient access to a neighbourhood centre' (N1) and, as noted previously, the specific point for neighbourhood centres in East Wanneroo in relation to allowing a more 'strategic' location for neighbourhood centres.
Given that Figure 1 and Table 5.1 of the Centres Strategy identifies the preferred location of neighbourhood centres as district distributor road intersection and bus route, on the edge of the catchment area, and given that parts of Cells 1 and 2 have already been developed, including in the vicinity of the common district distributor road, Pinjar Road, the proposed site is the most logical and appropriate 'strategic' location to provide direct and convenient access to Cells 1 and 2 and provide the residents of those cells with appropriate retail amenity in terms of access to a neighbourhood centre. In contrast, the retail planning evidence clearly shows that the Tapping and Sinagra sites will not provide the residential neighbourhood with direct and convenient access to neighbourhood centres, and are not consistent with the locational expectations for neighbourhood centres in Figure 1 and Table 5.1 of the Centres Strategy.

Liveable Neighbourhoods

The principal aims of Liveable Neighbourhoods include:
1To provide for an urban structure of walkable neighbourhoods clustering to form towns of compatible mixed uses in order to reduce car dependence for access to employment, retail and community facilities.
2To ensure that walkable neighbourhoods and access to services and facilities are designed for all users, including those with disabilities.

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Element 7 concerns 'activity centres and employment', including neighbourhood retail centres. It identifies key changes from conventional practice as including:
•The establishment of welllocated activity centres is necessary to serve the requirements of local populations and facilitate employment creation. …
•Main street - fronting retail layouts should predominate, instead of enclosed or parking lot - dominant retail formats.
…
•Centres capitalise on, relate to and address arterial roads rather than just using them for access.
…
•Centres have an appropriate range of high density housing both in and immediately around them.
…
Element 7 also describes key factors for a potentially successful neighbourhood centre as including:
•Central location in a good walkable catchments (sic) for local residents …
•location on an intersection of relatively busy streets with good through traffic levels …
•location on the going home side of the road …
The objectives for Element 7 include:
To facilitate welldistributed town (district) and neighbourhood centres throughout the urban area, such that a substantial majority of dwellings are in a 400 to 500 metre radius of a centre, such centres can support, at a minimum, daily local retail, a postbox and a public transport stop.
Finally, the requirements set out in Element 7 include:
Neighbourhood centres should be located and distributed to provide a centre for most residents in a 400 - 500 metre walk. Centres should be on sites that have adequate surrounding custom, sufficient traffic, and appropriate exposure and amenity to provide for the successful operation of the centre.

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Mr Doyle is of a view that the proposal is generally consistent with these provisions, whereas Ms Butterworth considers that it is not. The Tribunal agrees with Mr Doyle's opinion for the following reasons.
Although it is correct, as Ms Butterworth notes, that a substantial majority of dwellings in Cells 1 and 2 would not be within a 400 to 500 metre radius of the proposed site and that the proposal does not involve a centre for most residents in a 400 to 500 metre walk, the retail planning evidences suggests that neighbourhood centres at such spacings would not be sustainable, at least in the present context, and therefore would not achieve the intent of Liveable Neighbourhoods in relation to activity centres. The second sentence of the requirement of Element 7 set out earlier identifies the critical need for centres to be on sites that have 'adequate surrounding custom, sufficient traffic, and appropriate exposure and amenity to provide for the successful operation of the centre'. The retail planning evidence shows that in order for this requirement to be satisfied in the context of Cells 1 and 2, it is not possible to locate neighbourhood centres to provide a centre for most residents in a 400 500 metre walk.
The proposal involves an urban structure containing a walkable neighbourhood that, because of the location and drawing power of the proposed centre, would include a considerable number of residences within the likely walking catchment. The likely walking catchment of the proposal is notably larger, both in terms of the number of lots and the area, than the walking catchments of the Tapping and Sinagra sites, assuming that those neighbourhood centres were ultimately developed as envisaged in the Agreed Structure Plans and the Centres Strategy.
Moreover, as the first principal aim of Liveable Neighbourhoods indicates, and as Mr Syme and Mr Haratsis observed, the urban structure of walkable neighbourhoods envisaged by Liveable Neighbourhoods is 'in order to reduce car dependence for access to employment, retail and community facilities'. The proposal achieves this objective, not only by its 'central location in a good walkable catchment for local residents', but also by its 'location on an intersection of relatively busy streets' and 'location on the going home side of the road', thereby encouraging multiple purpose trips and an overall reduction in car usage.

As discussed previously, Liveable Neighbourhoods contemplates that neighbourhood centres can have access from main roads, provided that 'main street - fronting layouts should predominate'. As found earlier,

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the proposed site lends itself to design in accordance with main street principles.

Furthermore, both the Centres Strategy and Liveable Neighbourhoods contemplate that neighbourhood centres should be supplemented by local shops or local centres. While a considerable number of residents in Cells 1 and 2 would be within the likely walking catchment of the proposed site and while a substantial proportion of residents in the southern part of Cell 2, if that area is ultimately developed for residential purposes, would be within the likely walking catchment of the Wanneroo Town Centre, there is potential for the location of local shops or local centres in the vicinity of the Sinagra site and in the northern part of Cell 1. Indeed, the Centres Strategy envisages local shops with a maximum nett lettable area of 200 square metres at Part Lot 2000 (131) Clarkson Avenue and there is a pending application to amend the Cell 1 ASP before the Council to accommodate 1,100 square metres of nett lettable retail area on the allotment at the northwestern corner of Cell 1 at the intersection of Clarkson Avenue and Wanneroo Road. These locations are both inconsistent with Figure 1 and Table 5.1 of the Centres Strategy which envisage that local shops and centres should be on main local distributor road intersections within residential neighbourhoods, rather than on district distributor roads at the entrances to residential neighbourhoods. However, the Council may consider, as part of its current Centres Strategy Review, the accommodation of local shops within the northeastern and northwestern parts of Cell 1 and within the southern part of Cell 2, to supplement the proposed neighbourhood centre.
The one aspect of Liveable Neighbourhoods with which the proposal is not consistent is the point that 'centres have an appropriate range of higher density housing both in and immediately around them'. As is apparent from Attachments B and F, while the overwhelming majority of Cells 1 and 2 are planned as low density residential areas, both the Tapping and Sinagra sites and adjacent public open space are framed by land envisaged for medium density housing at a density coding of R40. In contrast, Attachment D shows that the proposed site has predominantly low density housing in its vicinity.
However, the Tribunal does not consider that the absence of R40 coded sites in the vicinity of the proposed site warrants the refusal of the proposed amendments. The proposal generally satisfies the provisions of Liveable Neighbourhoods. Furthermore, as Attachment D shows, there is capacity to amend the Cell 1 ASP to increase the coding of the area to the north of the proposed site up to Conti Road to R40, or indeed perhaps a

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higher coding, to achieve the intention of Liveable Neighbourhoods that there be an appropriate range of higher density housing in the immediate vicinity of activity centres.

It follows that the proposed amendments to the Agreed Structure Plans are consistent with the strategic and statutory planning framework.

Would approval of the proposal prejudice the Centres Strategy Review?

Councillor Glynis Monks, a councillor for nine years and a resident of Wanneroo for over 30 years, gave evidence that the Council has initiated the Centres Strategy Review which is envisaged in the Centres Strategy to take place after 2006. In December 2007, the Council's retail consultant, Mr Peter McNabb, conducted a discussion with councillors and then met with other stakeholders, including senior staff with the Department for Planning and Infrastructure. In March 2008, Mr McNabb produced a detailed discussion paper for the purposes of the review.
Councillor Monks indicated that Mr McNabb's draft Centres Strategy Review is scheduled to be considered by councillors at committee meetings this month and by the Council at its meeting on the 23rd of this month. At the time she gave evidence, Cr Monks had not yet seen the draft Centres Strategy Review and could not, therefore, say whether she expects that it will be endorsed by the Council for the purposes of advertising or whether it will be referred back to Mr McNabb or to Council officers for further review. If the draft Centres Strategy Review is endorsed by the Council for the purposes of advertising, Cr Monks anticipates that the Council will review public submissions at its first meeting in 2009.
Ms Butterworth considers that approval of the proposed amendments to the Agreed Structure Plans would, at the present time, be contrary to orderly and proper planning, because it may prejudice the outcomes of the Centres Strategy Review. Ms Butterworth says that the intention of the Centres Strategy is that the review should occur in a comprehensive way. She notes that, consistently with the discussion paper, the Centres Strategy Review will proceed in accordance with sustainability principles relating not only to economic considerations, but also to social and environmental considerations.
In contrast, Mr Doyle is of the opinion that approval of the proposed amendments would not prejudice the Centres Strategy Review. He notes, as the Tribunal has found earlier, that the Centres Strategy explicitly anticipates the proposed amendments. Mr Doyle also relies on the retail

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planning evidence and says that, consequently, approval of the proposed amendments would not prejudice retail hierarchy in the area.

The Tribunal does not consider that approval of the proposed amendments would prejudice the Centres Strategy Review.
As noted earlier, the proposed amendments are anticipated by the Centres Strategy that was adopted in its current form only three years ago, independently of the general review after 2006.
The retail planning evidence clearly demonstrates that approval of the proposed amendments will provide direct and convenient access for the residential neighbourhood in Cells 1 and 2 to an appropriate neighbourhood centre while not affecting the viability of any retail centre outside Cells 1 and 2.
Finally, the Tribunal is satisfied on the evidence of the retail experts, and Mr Doyle, that the proposal meets each of the sustainability principles in relation to social and environmental considerations, as well as economic considerations, identified at pages 77, 78 and 104 of Mr McNabb's discussion paper. The proposal satisfies the 'desired outcome' of the review from a critical environmental sustainability point of view for 'a network of centres that minimise overall transport requirements by achieving more multipurpose trips to a single destination'. The proposal therefore satisfies the strategy approach identified in the discussion paper.

Will the proposal have a detrimental impact on amenity?

In their submissions to the Council, resident objectors raised concerns in relation to issues such as noise, rubbish, smells, antisocial behaviour and light spill. These concerns were addressed by the Council's Director of Planning and Development and were not supported. Similarly, Ms Butterworth does not support these concerns as a basis for refusal of the proposed amendments. Rather, Ms Butterworth considers, and the Council contends, that the proposal would have a detrimental impact on residential amenity in terms of access and accessibility to retail and traffic on Hollosy Way.
In relation to access and accessibility, as found previously, the proposal involves direct and convenient access to a neighbourhood centre for the relevant residential neighbourhood. Furthermore, the proposal results in a better community outcome in relation to accessibility of retail than is the case under the current Agreed Structure Plans, because the

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neighbourhood centres at the Tapping and Sinagra sites are unlikely to be developed to the extent envisaged or, in the Sinagra case, at all, and even if developed to the extent envisaged, the location and size of the proposal would result in superior access and accessibility both by foot and vehicle.

In relation to traffic on Hollosy Way, Mr Riley gave evidence that if the neighbourhood centre envisaged by the proposed amendments has vehicular access and egress from Pinjar Road, then the likely increase in traffic in Hollosy Way would be by 1,030 vehicles per day to 6,030 vehicles per day. Mr Riley found in his traffic assessment that Hollosy Way would have the same level of service whether or not the centre is developed. As noted earlier, the City's traffic section reviewed Mr Riley's report and concluded that the proposal is unlikely to have a significant detrimental impact on Hollosy Way.
Mr Riley also indicated that, if access to and from Pinjar Road is not available, the level of traffic in the section of Hollosy Way adjacent to the proposed site would more than double to over 10,000 vehicles per day. However, Mr Riley said that Hollosy Way has sufficient capacity in its current construction to adequately accommodate this level of traffic. The Council did not present any qualified traffic evidence to the contrary.
As the Tribunal found earlier, Liveable Neighbourhoods contemplates vehicular access to and from a district distributor road for a neighbourhood centre. Furthermore, Mr Haratsis referred the Tribunal to a similar shopping centre approved by the Council which successfully obtains access to and from a similar regional road. It is likely, therefore, that the proposed centre will have access to and from Pinjar Road and that the level of traffic in Hollosy Way will be limited to 6,030 vehicles per day.
However, even if access to Pinjar Road were not available, the increase in traffic on Hollosy Way would not warrant refusal of the proposal, having regard to Mr Riley's evidence and the characteristics of the relevant section of Hollosy Way. Although there are seven residential properties on the opposite side of Hollosy Way from the proposed site, five of the properties obtain vehicular access from another road and a sixth property could obtain vehicular access from another road. It has not been suggested that the seventh property would not be able to be accessed.
It follows that approval of the proposal would not have a detrimental impact on the current and likely future amenity of the locality. Rather, the proposal will improve future amenity, by providing residents in Cells 1

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and 2 with access to a sustainable and successful neighbourhood activity centre without any significant disbenefit.

Conclusion

The Tribunal has determined that the proposed amendments to the Agreed Structure Plans for Cells 1 and 2 in East Wanneroo:
•are consistent with the strategic and statutory planning framework;
•would not prejudice the Centres Strategy Review; and
•would not have a detrimental impact on the current and likely future amenity of the area.
The Tribunal, therefore, considers that the proposed amendments should be approved under cl 9.7.1 of DPS 2, subject to the approval of the Commission, and should be forwarded to the Commission for its approval.
The Tribunal also considers that the Council should initiate a further amendment to the Cell 1 ASP to increase the residential density coding of the land between Lot 9602 Pinjar Road, Ashby and Conti Road to R40 or higher consistently with the contemplation of Liveable Neighbourhoods that centres have an appropriate range of higher density housing in their vicinity.

Orders

The Tribunal makes the following orders:
1.The East Wanneroo Cell 1 (Tapping and Ashby) Agreed Structure Plan undated (Cell 1 ASP) be amended as follows:
(a)Schedule 1 of the Cell 1 ASP text be amended to permit a maximum nett lettable area (rounded to the nearest 50 square metres) of 4,600 square metres.
(b)The Cell 1 - Agreed Structure Plan dated 30 June 2008 be removed and the Cell 1 - Proposed Structure Plan dated 1 September 2008 (Attachment D to the reasons for decision and

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Attachment A to the orders) be inserted as the Cell 1 - Agreed Structure Plan.
(c)The Cell 1 - Zoning Plan dated 19 April 2005 be removed and the Cell 1 - Zoning Plan dated 1 September 2008 (Attachment E to the reasons for decision and Attachment B to the orders) be inserted as the Cell 1 - Zoning Plan.

2.The East Wanneroo Cell 2 (Sinagra) Agreed Structure Plan dated 30 June 2004 (Cell 2 ASP) be amended as follows:
(a)Clause 3 and Sch 1 of the Cell 2 ASP text be deleted in their entirety.
(b)The Cell 2 - Agreed Structure Plan dated 31 October 2006 be removed and the Cell 2 - Proposed Structure Plan dated 1 September 2008 (Attachment H to the reasons for decision and Attachment C to the orders) be inserted as the Cell 2 - Agreed Structure Plan.
(c)The Cell 2 - Zoning Plan dated 27 August 2003 be removed and the Cell 2 - Zoning Plan dated 1 September 2008 (Attachment I to the reasons for decision and Attachment D to the orders) be inserted as the Cell 2 - Zoning Plan.

3.By 24 September 2008, the respondent must forward a copy of the amended Cell 1 ASP and the amended Cell 2 ASP to the Western Australian Planning Commission for its approval pursuant to cl 9.7.1 of the City of Wanneroo District Planning Scheme No 2 together with a copy of the Tribunal's reasons for decision.

I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER

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Attachment A

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Attachment B

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Attachment C

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Attachment D

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Attachment E

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Attachment F

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Attachment G

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Attachment H

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Attachment I

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Citations

Wanneroo North Pty Ltd and City Of Wanneroo [2008] WASAT 206

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