Western Australian Substance Users Association and City Of Perth
[2006] WASAT 381
•25 OCTOBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WESTERN AUSTRALIAN SUBSTANCE USERS ASSOCIATION and CITY OF PERTH [2006] WASAT 381
MEMBER: MR P McNAB (MEMBER)
HEARD: 9 OCTOBER 2006
DELIVERED : Edited reasons delivered extemporaneously on 25 OCTOBER 2006
FILE NO/S: DR 220 of 2006
BETWEEN: WESTERN AUSTRALIAN SUBSTANCE USERS ASSOCIATION
Applicant
AND
CITY OF PERTH
Respondent
Catchwords:
Town planning - Clinic providing rehabilitation and needle exchange services on medical model for certain drug users - Consulting rooms - Planning approval sought for relocation of business to another part of city environs - Review of unanimous refusal by City of Perth to relocation - Precinct planning statement contemplated wide range of uses for subject land, including "medical" uses - Use conceded to be "consulting rooms" under town planning scheme - Neighbours' and objectors' amenity concerns - Objectors not called by City - Objectors not seeking leave to make a submission - Evidence pointing to success of and need for current clinic - Police and regulatory agencies supportive of clinic - Evidence available to Tribunal inconsistent with objectors' allegations - No explanation furnished as to why contrary supporting evidence not called - Inferences open to Tribunal in such circumstances - Management plan proposed to address any amenity concerns - Tribunal requested further detailed evidence of specifics of operation - Application for review allowed - Tribunal approving development on certain agreed conditions
Legislation:
City of Perth City Planning Scheme No 2, cl 17, Sch 2, Sch 3, Sch 4
Planning and Development Act 2005 (WA), s 242
Result:
Application for review allowed and development approval given on conditions
Category: B
Representation:
Counsel:
Applicant: Mr J Strahan (Acting As Agent)
Respondent: Mr S Bain (Acting As Agent)
Solicitors:
Applicant: Greg Rowe & Associates (Planning Consultants)
Respondent: SJB Planning and Urban Design (Planning Consultants)
Case(s) referred to in decision(s):
Southern Peninsula Community Support v Mornington Peninsula CC [1999] VCAT 1758
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
These are the edited and formally published reasons of the Tribunal, first delivered orally in late October 2006, in a review concerning the refusal of the City of Perth for the relocation of a medically‑based clinic and consulting rooms having as part of its function a needle exchange program, from Northbridge to the Perth CBD (to the west).
The Tribunal heard extensive evidence to the effect that the clinic was, in its current location, well‑managed and supported by both regulatory authorities and government agencies, including the Police. That evidence was not contested by the respondent.
The respondent argued that the precinct's prime focus was on retail activities and that this was incompatible with the proposed development. The applicant contended that mixed uses (including consulting rooms) were contemplated, and that the clinic was not inconsistent with the precinct intent. The Tribunal agreed with the applicant.
The respondent also argued that there were amenity concerns from potential neighbours and others (including businesses) in the vicinity of the development. However, none of these objectors were called by the respondent, and none of the objectors sought to take part in the proceedings. The nature of the objections was in stark contrast to the evidence presented by the applicant ‑ evidence which, as has been mentioned, was not contested by the respondent.
The Tribunal found on the evidence that there was a need for the operation, that it was well‑run and supported by the relevant agencies and that the amenity concerns (such as they were) could be addressed in its management plan, consistently with the views of the WA Police.
The Tribunal allowed the review and substituted a decision permitting in effect, on certain agreed conditions, the relocation of the clinic.
Introduction
This review concerns planning approval for what is, in effect, the relocation of the business premises of the applicant, the Western Australian Substance Users Association, from No 440 William Street, Northbridge, in the Town of Vincent (and on the border with the City of Perth), to No 519 Murray Street in the City of Perth (subject land).
The applicant runs a clinic providing medical support, rehabilitation assistance and needle (syringe) exchange facilities to substance users.
The subject land and its immediate vicinity
The subject land is located on the corner of Murray Street and Elder Street in the City of Perth. Its formal description appears to be as follows: Lot 123 on diagram 9243, comprised in the Certificate of Title volume 1856, folio 285. The land is 415 metres square with a frontage of approximately 13 metres on the Murray Street side and 23 metres on the Elder Street side, with a corner truncation. For the purposes of the hearing the lot has also been described as "Lot 1161" and it will be referred to as such in these reasons, to the extent that it is necessary.
The subject land has been improved by the addition of a single storey building of non‑residential appearance, in fact a former warehouse. That building is constructed over the entire lot. The building is currently used for office purposes and is typical of shopfront small businesses, for example as seen in many real estate agencies.
It is not in issue between the parties that the subject land is located in the Perth CBD at its western edge, with a "mix of land uses consistent with the central city area", as Mr Strahan put it in his evidence for the applicant. (Mr Bain, for the respondent, similarly referred to a "variety of commercial and residential activities, including showrooms, warehouses, offices, hotels and residential apartments".)
Mr Strahan further contended as follows:
"The building immediately to the east of the site contains various commercial uses including a motor vehicle panel and paint outlet, a car audio outlet and a car hire business. The building immediately to the south is used as a martial arts studio. The Mitchell Freeway is located on the opposite western side of Elder Place and is elevated above natural ground level of the site, forming a partial barrier to the locality of West Perth further west. …
The majority of land use within the immediate locality, (i.e. the area bound[ed] by Elder Street, Hay Street, Milligan Street and Wellington Street), is of a commercial nature. [W]ithin this area, there is limited residential development at the following locations: Wellington Street corner of Elder Street; Murray Street corner of Milligan Street; 984‑996 Hay Street; and 474 Murray Street."
Mr Strahan was not cross‑examined on any of these matters by Mr Bain and the Tribunal takes them, as has been indicated, to be largely common ground.
The applicant's proposal
The land is to be used for the applicant's business, essentially that ‑ as has been mentioned ‑ of a clinic providing medical support, rehabilitation assistance and needle and syringe exchange facilities to substance users in the State. The building will have a training room, waiting and reception areas, counsellors' rooms, a nurse's station and associated administration and parking. More will be said in a moment about the precise scope of the applicant's operation.
The lease is set to expire on the applicant's current and existing Northbridge operations. It is not suggested that anything in the applicant's past operational behaviour (or similar) has led to the search for a new home for the Northbridge clinic. It is simply the case that the present premises in Northbridge are in poor condition and are to be redeveloped.
Following the refusal by the East Perth Redevelopment Authority (EPRDA) of an earlier development application for alternative premises in North Perth (an application, the Tribunal notes, that was not opposed by the respondent City of Perth in the consultative process engaged in by EPRDA), the applicant sought new premises, identifying the subject land for this purpose.
It is worth recording that EPRDA's refusal related to a preference for residential land use, as appeared in the published Russell Square Precinct Design Guidelines of that authority relevant to the land sought by the applicant. The surrounding land here, in contrast, as already indicated, is not so readily categorised as preferred residential or for that matter, as we shall see shortly, preferred retail.
The planning framework
Under the respondent's City of Perth City Planning Scheme No 2 (CPS 2), the land is located in the City Centre Use Area of the Citiplace Precinct P5. The precinct's express written objective related to planning includes the following: Land will be developed to (emphasis added),
"… offer a wide range of general and specialised retail uses as well as a mix of other uses such as entertainment, commercial, medical, service industry, residential and minor office."
Mr Bain concedes, quite properly in the circumstances, that the proposal meets the CPS 2 definition in Sch 4 of "consulting rooms", and is thus a contemplated ("C") use (that is, a use permitted with the approval of the respondent or, on review, this Tribunal: see cl 17 of CPS 2). See also Sch 2 (dealing with use groups) and Sch 3 (dealing with use group tables) of CPS 2.
It is common ground that under and subject to CPS 2 the proposal may be approved by the respondent, or on review by this Tribunal, in the exercise of a discretion, being a discretion based upon proper planning principles. The decision under review, involving the use of this discretion, was characterised by the respondent as a change of use for the land from that of an "office" to that of "consulting rooms" under CPS 2.
Mr Bain contends, amongst other things, that the precinct's focus is on retail activity and that the proposed use is necessarily inconsistent with that focus. In short, the applicant contends in reply that the precinct intentions, referred to earlier, do not "privilege" retail or residential development ahead of other contemplated uses. The applicant further contends that it is a well‑established medical‑type provider in a category of use contemplated by CPS 2, and that there is no evidence (at least of any weight or substance) demonstrating that the residents' amenity expectations would be defeated by such an approval. We will return to this matter of amenity in a moment.
Management of the subject land and amenity concerns
This case, as indicated already, essentially revolves around alleged amenity concerns. These will be more precisely identified below. Shortly put, the respondent contends that those living and working in the area, present and future, as regards the proposed development, would have both their security and "pleasantness of environment" marred. (The Tribunal notes here that the future possible changes to the precinct are discussed in the planning officers' opinions expressed in their report to the respondent's councillors below; it is not necessary to refer to this matter in any detail as the applicant does not contest these matters.)
On 6 June 2006 the respondent's Council, against its officers' recommendation, voted unanimously not to approve the development, heavily influenced, it seems, by the objections of neighbours or potential neighbours (including businesses), or those living in the vicinity of the subject land, on questions of security, public safety, possible anti‑social behaviour and the like. These are, in effect, the particulars of the alleged amenity concerns that the Tribunal must consider and that the applicant must as a practical measure either rebut or address.
Such concerns are at one level understandable, based as they appear to be on popular negative perceptions ‑ perhaps misconceptions is a better term ‑ of the nature of the subculture of injecting drug users. However, unfortunately for the objectors, there is no material evidence to support any of these concerns regarding the actual overall operation of the applicant's clinic to date. In fact, the evidence tends to show that it is likely that the proposed operation will have a minimal impact on the amenity of the area.
The Tribunal turns to consider the applicant's evidence concerning such matters.
The applicant provided written evidence as follows. First, from Associate Professor Dr Paul Van Buynder, who is also a senior officer in the Department of Health; secondly, from Ms Sandra Fox, who is the current manager of the applicant's clinic; thirdly, from Mr John Hyde MLA, the Member for Perth in the Lower House of the Western Australian Parliament, a supporter of the applicant and a business neighbour of the existing operation in Northbridge; and from Ms Thanh Vi Ly, the owner and manager of an Indonesian restaurant (the Sparrow) located near to the existing operation, reporting in effect no amenity problems.
Finally, the applicant provided a statement (in the form of a letter) from Superintendent Jim M Migro, who is the Metropolitan Regional Coordinator. All of this evidence is either highly supportive of or demonstrative of the success of the work of the applicant and, more importantly, its management capacity.
Importantly, the respondent did not choose to cross‑examine or otherwise challenge any of this evidence.
The fact that some incidents affecting amenity have and could occur in such an operation as proposed is referred to or contemplated in Superintendent Migro's written evidence.
Superintendent Migro put the matter this way:
"The [applicant's] management and staff are always mindful of negative activities and issues that do occur from time to time in the vicinity of their premises. Sound operational management strategies have been introduced to combat these incidents, and in the past the [Police Alcohol and Drug Coordination Unit] have assisted in these measures so as to ensure minimum disruption to the affected area."
This is a matter that the Tribunal will return to in a moment, but it should be noted at this point that the applicant's evidence includes a written, comprehensive management plan consistent with the tenor of Superintendent Migro's statement. See also the planning officers' positive opinions expressed below on the suitability of the proposed management plan (to be found in the papers of the respondent received by the Tribunal).
Additional material sought by Tribunal
At the hearing of this matter on 9 October 2006, the Tribunal requested that the applicant file and serve a supplementary witness statement concerning such matters as the hours of operation; staffing levels by program; program details, particularly as they related to the medical side of the operation; the qualifications of staff; the number of visitors or clients, including therein the peak periods of visitation; whether any drugs other than standard drugs such as antibiotics and the like were likely to be kept on or prescribed from the premises; and finally, those matters to do with the supervisory arrangements with relevant authorities.
The detailed supplementary witness statement of Ms Fox addressing such matters was filed on 12 October 2006. Again, the respondent elected not to cross‑examine or otherwise challenge any of that evidence.
The evidence thus far demonstrates a well‑organised, well‑supervised, well‑qualified, highly professional operation with a substantial direct medical service component. Moreover, the evidence suggests strong community, government and regulatory agency support for the applicant's activities. This finding in itself suggests the respondent's concerns are misplaced.
So far as any possible amenity impacts are concerned, the evidence indicates:
1.that the hours of operation will be from 10 am to 4 pm Wednesday to Saturday with extended hours for client convenience to 8 pm on Thursdays and Friday.
2.that there will be an average of 55 visitors/clients per day with the peak periods being between 12 pm and 3 pm, with 35 clients during this period, and that no drugs are to be kept on or are to be prescribed from the premises.
None of these matters, on their face and in themselves, suggest any amenity impact issues along the lines of the concerns advanced by the respondent, and no submissions have been made to the Tribunal by the respondent to that effect.
The respondent's and objectors' case on amenity
The respondent's case, apart from the professional opinion expressed in the contentions of their representative, Mr Bain, rests mainly on some 56 letters of objection made to the respondent in its decision‑making process. The thrust of these amenity objections has already been outlined above. However, special mention must be made of the objectors represented by a planner, Mr David Caddy, acting on behalf of the proprietors of the QV 1 office tower which is located in the general vicinity of the subject land. Mr Caddy alleged:
"The potential impacts of the proposed use are not hypothetical as there is empirical evidence based on the use in William Street that the existing facility has resulted in people injecting drugs in the car park nearby; people parking across driveways in the area, and who are abusive if asked to move; the Police treat the area as a 'no go area' and in general do not attend the area unless specifically called. As a result, there is an increased incident of crime in the area; and staff at nearby premises keep their front doors locked. The QV.1 car park incorporates tenant and public short term parking facilities and is currently regarded as a safe car park for QV.1 tenants and clients use, without incidents such as those occurring near the existing William Street facility.
The QV.1 owners, also having regard to their tenants in the QV.1 office tower, are of the view that the proposed use will result in anti‑social behaviour which will result in a loss of pleasantness, character and security within the area.
The statement of intent for the area indicates that the continuous safe, attractive and clearly identified network of pedestrian paths, bases and facilities linking adjacent Precincts would be provided throughout the Precinct. Given the information above, it cannot be concluded that the proposed use will result in an area which is safe and therefore the use does not achieve the objectives of the statement of intent for the area."
Curiously, Mr Caddy was not called by the respondent to give evidence, and neither he nor any of his clients sought leave to make a submission to the Tribunal under s 242 of the Planning and Development Act 2005 (WA).
In fact, none of these objectors were called by the respondent, despite the matter being expressly raised by the Tribunal at the hearing. No explanation has been given for this failure to call witnesses, witnesses whose evidence seems material.
In the experience of the Tribunal, this situation is, to say the least, unusual. It resulted in, apart from other things, the substantial truncation of the hearing dates and the earlier delivery of reasons, earlier than might otherwise have been the case.
One inference concerning the failure to call these witnesses, which is open to be drawn, is that upon closer examination the concerns of the third parties could not be objectively verified or otherwise sustained. Another related inference is that the objectors might have unconsciously exaggerated the impact of the clinic, possibly in ignorance of its precise operations and track record.
Conclusions on the evidence presented
Whether these matters are so or not, this Tribunal was left with a solid base of uncontradicted evidence well and truly to the opposite of what the respondent and the third party objectors contended for. In addition, the Tribunal does not accept that the retail focus of the precinct is relevantly undermined by the inclusion of the applicant's clinic, as there is a potential mixed use (including services analogous to that offered by the applicant) clearly contemplated for the area. Further, the Tribunal rejects the third party objections as wholly or mainly untested supposition and contrary to the consistent, uncontradicted evidence, including that of the WA Police Force, which has been led by the applicant. Cf this comment from the Victorian Civil and Administrative Tribunal in a planning case that raised similar issues, Southern Peninsula Community Support v Mornington Peninsula CC [1999] VCAT 1758 (at [73]):
"The risk of dangerous or undesirable behaviour from drug users or an increase in burglaries to support drug habits, was similarly a matter of conjecture and fear [by the objectors], rather than being based on observed behaviour in the vicinity of the 200 needle exchange program which are operated in Victoria."
It is the Tribunal's task to exercise its discretion upon proper planning principles consistent with the evidence before it. That evidence points overwhelmingly to a lawful, well‑managed, medically‑based operation with a minimum impact upon the amenity, current or future, of the locality. Like its Victorian counterpart mentioned already, it appears to be "a quiet achiever in improving community health and safety": Southern Peninsula Community Support v Mornington Peninsula CC [1999] VCAT 1758 at [75].
The planning officers below were also correct, in the Tribunal's view, on their assessment that the facility was arguably needed in the City.
Nothing on the material presented to the Tribunal demonstrates any sufficient reason not to approve the applicant's development application, and the Tribunal will order that the development be approved on the conditions as agreed between the parties.
Orders
The Tribunal makes the following Orders:
1.The application for review is allowed and the decision under review is set aside and in lieu thereof the following decision is substituted:
"In accordance with the provisions of the City of Perth City Planning Scheme No 2 and the Metropolitan Region Scheme, planning approval is given to the applicant's proposed consulting rooms at 519 (Lot 1161) Murray Street, Perth, as detailed on the Metropolitan Regional Scheme Form One dated 27 February 2006, and as shown on the plans received by the City of Perth on 15 March 2006, subject to the following conditions:
(i)The submitted operational management strategy adopted by the WA Substance Users Association (namely the document that addresses the issues of noise, antisocial behaviour of clients/patients, community relations, refuse management and appropriate response measures by the Association's staff), being implemented on an ongoing basis to maintain the amenity and safety of the locality.
(ii)The hours of operation of the consulting rooms being limited to 9.00 am to 5.00 pm Saturdays to Wednesdays, and 10.00 am to 8.00 pm Thursdays and Fridays.
(iii)Any external signage for the consulting rooms being subject to a separate application to the City for approval."
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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