WOOLWORTHS LTD and CITY OF JOONDALUP - [2009] WASAT 41

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WOOLWORTHS LTD and CITY OF JOONDALUP [2009] WASAT 41

MEMBER: MR M SPILLANE (MEMBER)
MR J JORDAN (MEMBER)

HEARD: 17, 18 & 19 NOVEMBER 2008 AND 1 DECEMBER 2008

DELIVERED : 10 MARCH 2009

FILE NO/S: DR 257 of 2008

BETWEEN: WOOLWORTHS LTD
Applicant
AND
CITY OF JOONDALUP
Respondent

Catchwords:

Town planning - Development application - Liquor store, parking and access roads - Refusal - Currambine District Centre Structure Plan - Business zone within district centre - Shopping centre and cinema complex nearby on site - Discretionary use - Structure plan objective of main street development - Main street development on central access road - Timing of development - Impact on main street development - Impact of use on amenity of nearby residential locality - Design of the proposed building - Parking provisions - Reciprocal parking arrangements - Designing out crime - Objections of nearby residents

Legislation:

City of Joondalup District Planning Scheme No 2, cl 3.6.1, cl 4.5, cl 4.8.2, cl 4.9, cl 6.6.2, cl 6.7.1, cl 6.8, cl 6.8.1, cl 6.8.2, cl 9.6, cl 9.8, Sch 3
Land Administration Act 1997 (WA), s 195, s 196
Liquor Control Act 1988 (WA), s 74, s74(1), s 97, s 98D
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)

Result:

The application for review is allowed.
The decision of the City of Joondalup dated 10 June 2008 is set aside and conditional development approval is granted for the proposed liquor store development, access roads, footpaths, car parking and landscaping as set out on the plans of Ken Paterson Architects titled 'Overall Site Plan' DM18a and 'Site Plan of Development Area' DM18b, both dated 24 November 2008 and the elevation 'Finishes Schedule' with the Tribunal date stamp 28 November 2008.

Category: B

Representation:

Counsel:

Applicant: Mr D Williams QC and Mr M Etherington
Respondent: Mr C Slarke

Solicitors:

Applicant: Minter Ellison
Respondent: McLeods

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

Barwell Nominees Pty Ltd and City of Wanneroo [2007] WASAT 156
Self Help Addiction Resource Centre Inc v Glen Eira City Council (2005) 145 LGERA 124
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Woolworths Ltd applied to the City of Joondalup for development approval for a Dan Murphy's liquor store on vacant land within the Currambine District Centre adjacent to the existing shopping centre and cinema complex. The liquor store would be a standalone building and the development would include extensions of the existing access roads as internal roads within the district centre site and associated parking, footpaths and landscaping.
The City of Joondalup refused the application. The issues identified were:
•whether, if built first, the proposed development would not encourage and might compromise the 'main street' built form objectives of the Currambine District Centre structure plan;
•whether a liquor store would have a negative impact on the amenity of the surrounding residential area by contributing to antisocial behaviour; and
•whether the building design would be inconsistent with the development requirements of the Currambine District Centre structure plan;
On the first issue, the Tribunal formed the view that the development of the proposed liquor store would be consistent with the orderly and proper planning of the site and the eventual implementation of the main street principles of the structure plan. The structure plan did not include any reference to staging development, either in location or form. The proposed liquor store would be a nonurban edge form of development set back sufficiently to be integrated with and compatible with the future main street development along the Chesapeake Way extension. The proposed liquor store development will provide the carriageways and footpaths that will assist in this outcome.
On the second issue, the Tribunal was not satisfied on the evidence before it that there would be an impact on the amenity of the locality from antisocial behaviour by youth arising from an increased availability of alcohol from the proposed development.
On the third issue, the Tribunal found that concerns about whether the design of the proposed liquor store development was acceptable were adequately addressed by amendments to the plans. These included whether there would be adequate passive surveillance of public and private spaces as required of a 'nonurban edge' building. The Tribunal found that the glazing that was provided, the CCTV included in the design and clear sightlines available in the car parks were sufficient to address the structure plan objectives.
The Tribunal concluded that with appropriate conditions, the proposed development of the liquor store and associated car parking, access roads, footpaths and landscaping would sufficiently address the requirements of DPS 2 and the Currambine District Centre structure plan. The Tribunal therefore decided to uphold the application for review and to grant conditional approval of the proposed development.

Introduction

These proceedings involve an application brought by Woolworths Ltd (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the refusal by the City of Joondalup (respondent, City or Council) to grant development approval for a liquor store and associated access roads and parking nearby to an existing shopping centre and cinema complex all on Lot 929 (No 1244) Marmion Avenue, Currambine (site). The site has an area of 7.5 hectares and can more formally be described as Lot 929 which is the whole of the land in Certificate of Title Volume 2079 Folio 304.
The site is freehold land owned by the Roman Catholic Archbishop of Perth and Davidson Pty Ltd as tenants in common in equal shares. In August 1995, the freehold owners and Fabcot Pty Ltd entered into a 99year lease for the entirety of the site (head lease). Pursuant to the head lease, Fabcot Pty Ltd developed the Currambine Marketplace Shopping Centre and cinema complex and subleased various tenancies within that shopping centre.
In July 2007, the application for development approval for the liquor store was lodged with the respondent. In February 2008, Fabcot Pty Ltd and Woolworths Ltd entered into an agreement for a lease over land comprising the building footprint of the proposed liquor store. Fabcot Pty Ltd has subsequently assigned its interest in the head lease to the Blair Group.

The site and the Currambine District Centre

The site is within the Currambine District Centre. Council has adopted the City of Joondalup Centres Strategy P3.2.8 (Centres Strategy) which was developed to manage the distribution of retail and commercial floorspace within the City of Joondalup. The Centres Strategy includes, in descending order of size, city centre (Joondalup), town centre (for example, Whitford City), small town centre (for example, Currambine District Centre) and then a sequence of smaller centres. The Centres Strategy is consistent with the Metropolitan Centres Policy (Western Australian Planning Commission 2000), with a small town centre being the equivalent of a district centre in the Metropolitan Centres Policy.
The Currambine District Centre is generally rectangular in shape and has an area of 18.35 hectares. It has road frontage of approximately 700 metres to Marmion Avenue to the west, approximately 290 metres to Shenton Avenue to the south, both of which have dual carriageways. Delamere Avenue curves to form the eastern and northern boundaries.
The northern half of the Currambine District Centre includes two gazetted roads; Chesapeake Way which runs northsouth between Delamere Avenue and the northern boundary of the site and Hobsons Gate between Chesapeake Way and Marmion Avenue. Three lots in the northwest corner have development which includes fast food outlets. The remainder of the northern half is vacant.
Within the southern half of the Currambine District Centre area, the site is the largest lot. It has a southern frontage of about 195 metres to Shenton Avenue and to the west frontage of about 380 metres to Marmion Avenue. The northern boundary is 290 metres and abuts two freehold lots, identified as No 4 and No 14 Hobsons Gate, separated by Chesapeake Way. The eastern boundary of the site is irregular and is separated from Delamere Avenue by four freehold lots. Vehicular access to the site is from Delamere Avenue and Shenton Avenue close to the southeast corner of the shopping centre and from Marmion Avenue about 200 metres north of the Shenton Avenue intersection. This western access is in effect a continuation of Ocean Gate Parade, a road to the west, which creates an intersection at which there are traffic lights.
The southern twothirds of the site, about 5.25 hectares, is zoned Commercial in the City of Joondalup District Planning Scheme No 2 (DPS 2). This is developed with the Currambine shopping centre, a big box centre, which includes a Woolworths supermarket and small commercial tenancies, some of which have direct access in the western façade, a cinema complex at the northwestern corner and a service station adjacent to the southeast corner. Across the southern part of the site and between the shopping centre and the western boundary is a bitumen paved car park. A 25 metre wide strip between the western boundary and the car park is undeveloped.
The northern third of the site, about 2.25 hectares, is zoned 'Business' in DPS 2 and is mostly uncleared land. The northwest corner of the site is bounded to the north by the common boundary with No 4, what would be the southern extension of Chesapeake Way to the east, the extension from Ocean Gate Parade to the south and, on the west, Marmion Avenue, an area of about 1.3 hectares. It is on this northwest portion of the site that it is proposed be developed the liquor store, access roads and parking. For convenience, this portion of the site is referred to hereunder as the liquor store development site.
In the course of the hearing the Tribunal viewed the site, the remaining area of the Currambine District Centre, an underpass beneath Marmion Avenue and residential streets and a park to the west. The Tribunal was accompanied by counsel, a representative of the applicant, planning witnesses and a nearby resident called as a witness by the respondent. Also viewed was a liquor store in Westminster of the same chain as proposed in this matter.

Proposed development

In the course of the hearing the applicant was asked to clarify what development the Tribunal was being asked to consider. This was because of some differences of description in the witness statements of Mr David Caddy, a planning consultant called by the applicant and Mr Stephen Allerding, the planning consultant called by the respondent and also in the report by an officer of the City in the minutes of the council meeting of 10 June 2008.
In the course of the examination of the planning witnesses, including Mr Brett WoodGush, an urban designer called by the applicant, there were also identified variations to the design that might be considered. These included landscaping, footpath locations and widths, building finishes, particularly areas of glazing, how the extension of Chesapeake Way would meet the gazetted section of Chesapeake Way to the north and whether moving the building 3 metres westward might better accommodate future main street development between the footpath alongside the Chesapeake Way extension and the eastern wall of the liquor store.
Following an adjournment, the applicant filed a set of three amended plans. The applicant sought leave to have the development shown in those plans considered by the Tribunal. The respondent had no objection and leave was granted. The development before the Tribunal is shown on the Ken Paterson Architect plans DM18a 'Overall Site Plan', DMA18b 'Site Plan of Development Area', both dated 24 November 2008, and a plan showing the southern and western elevations of the building titled 'Finishes Schedule' date stamped 28 November 2008 by the Tribunal. These plans are together referred to herein as the November plans. Copies of the November plans are attached to this decision. These plans show the development comprises, in summary:
•a single storey building of 1,500 square metres with a nett lettable area (NLA) of 1,350 square metres, generally of a height of 6.8 metres with some features 10.5 metres high, a customer entrance and glazing in the southern façade, and a loading dock in the northern façade;
•the use of the building as a liquor store;
•123 car parking bays south and west of the liquor store;
•the realignment and extension eastward of the access road, referred to as an extension of Ocean Gate Parade, to a new roundabout in the vicinity of the northwest corner of the cinema;
•construction of an access road south from the northern boundary to the roundabout, referred to as an extension of Chesapeake Way, and forming the alignment of the future main street development;
•a service road which is a circuit around the building from the Chesapeake Way extension across the southern, then western sides and then along the northern side between the building and the northern boundary servicing the loading dock in the rear northern façade;
•a network of 3 metre wide paths adjacent to the building, on each side of the Chesapeake Way extension and the northern side of the Ocean Gate Parade extension linking to the footpaths adjacent to the existing cinema and shopping centre; and
•areas of landscaping, particularly on the Marmion Avenue boundary, the edge of Ocean Gate Parade extension and between the roundabout and the cinema building.
To note is that the access roads referred to as Chesapeake Way extension and Ocean Gate Parade extension will not become public roads but will be internal carriageways constructed within the site. The Chesapeake Way extension is bitumen 8.5 metres wide comprising a 6 metre wide carriageway and parallel parking bays alternatively on the eastern and then western sides. On each side of the road is a 3 metre wide footpath. The eastern wall of the proposed liquor store is set back 14.5 metres from the footpath. If this area were in the future to be developed to two storeys as main street development, it would accommodate 920 square metres NLA. To the south of this future main street development site, separated by the access to the parking area, is a second potential future main street development area between the Chesapeake Way extension footpath and the car park which could comprise up to 1,750 square metres NLA. At the western edge of the liquor store development area adjacent to the landscaping on the Marmion Avenue boundary is an area marked as future parking for 27 cars.
A further item to note is the location of closedcircuit television (CCTV) surveillance cameras on the southeastern and southwestern corners of the building and on the canopy over the loading dock directed down the access driveway between the building and the northern boundary.

The legislative and policy framework

This matter is concerned with an application for development approval made pursuant to DPS 2. The parties also made submissions on the relevance of provisions of the Liquor Control Act 1988 (WA) (LC Act), particularly in respect of amenity impacts and operating hours, which will be identified separately below.

Planning framework

The site and surrounding area is zoned 'Urban' under the Metropolitan Region Scheme (MRS). Marmion Avenue which abuts the site to the west is an 'Other Regional Road' under the MRS. The Currambine District Centre, as explained above, is in part zoned 'Commercial' and in part zoned 'Business' under DPS 2. It also includes an area zoned 'Residential' in the north-east and to the south of that an area zoned 'Civic' and 'Cultural'. The liquor store development site is in the 'Business' zone.
The purpose of the 'Business' zone is described in DPS 2 as follows:
3.6THE BUSINESS ZONE
3.6.1.The Business Zone is intended to accommodate wholesaling, retailing, warehouses, showrooms and trade and professional services and small scale complementary and incidental retailing uses, as well as providing for retail and commercial businesses which require large areas such as bulky goods and category/theme based retail outlets that provide for the needs of the community but which due to their nature are generally not appropriate to or cannot be accommodated in a commercial area.
The objectives of the Business Zone are to:
(a)provide for retail and commercial businesses which require large areas such as bulky goods and category/theme based retail outlets as well as complementary business services;
(b)ensure that development within this zone creates an attractive façade to the street for the visual amenity of the surrounding areas.
Under DPS 2, a liquor store is a 'D' use in the business zone which means it is a use not permitted but for which Council may grant its approval after following procedures laid down by subclause 6.6.2. Clause 6.6.2 includes that in exercising its discretion Council shall have regard to the provisions of cl 6.8 which sets out matters to be considered by Council. It also provides for Council to consult with the public generally and with owners and occupiers of properties in the vicinity.
Clause 6.8.1 of DPS 2 lists matters to which regard shall be had when considering an application. These include:
(a)interests of orderly and properly planning and the preservation of the amenity of the relevant locality;
(b)any relevant submissions by the applicant;
(c)any Agreed Structure Plan prepared under the provisions of Pt 9 of the Scheme;
(d)any planning policy the Council adopted under the provisions of cl 8.11;
(e)any other matters under which the provisions of the Scheme the Council is required to have due regard;
(f)any policy of the Commission or its predecessors or successors or any planning policy adopted by the government of the State of Western Australia;
…
(i)the comments or wishes of any objectors to/or supporters of the application;
…
(k)Any other matter which in the opinion of the Council is relevant.
Under cl 6.8.2 of DPS 2 the Council, when considering whether or not to approve a 'D' use, shall have regard to the following:
(a)the nature of the proposed use and its relationship to the use of other land within the locality;
(b)the size, shape and character of the parcel of land to which the application relates and the nature and siting of any proposed building;
(c)the nature of the roads giving access to the subject land;
(d)the parking facilities available or proposed and the likely requirements for parking, arising from the proposed development;
(e)any relevant submissions or objections received by the Council; and
(f)such other matters as the Council considers relevant, whether of the same nature as the foregoing or otherwise.
Clause 4.5 of DPS 2 provides that where certain types of development do not comply with a prescribed standard or requirement, approval may be granted. If the respondent believes that the variation is likely to affect owners or occupiers in the locality, it is required to consult affected parties in accordance with cl 6.7.1 of DPS 2 and have regard to the views expressed. The ability to grant variations is only to be exercised if the approval of the proposed development would be appropriate having regard to the criteria set out in cl 6.8 of DPS 2 and that noncompliance will not have any adverse effects upon the occupiers or users of the development or inhabitants of the locality or upon the likely future development of the locality.

Under cl 9.6 of DPS 2, a structure plan adopted by the City of Joondalup must be adopted by the Western Australian Planning Commission to become an agreed structure plan. Clause 9.8 of DPS 2 outlines the operation of an agreed structure plan and this includes the following:
9.8.2Where an Agreed Structure Plan imposes a classification on the land included in it by reference to reserves, zones (including Special Use Zones) or Residential Density Codes, until it is replaced by an amendment to the Scheme imposing such classifications:
(a)the provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme; and
(b)provisions in the Scheme applicable to land in those classifications under the Scheme shall apply with the necessary changes or alterations to the Agreed Structure Plan.
9.8.3Without limiting the generality of the preceding subclause, an Agreed Structure Plan:
(a)in the areas designated as zones, the permissibility of uses shall be the same as set out in the Zoning Table as if those areas were zones under the Scheme, having the same designation;
…
(f)any other provision, standard or requirement in the Structure Plan shall be given the same force and effect as if it was a provision standard or requirement of this Scheme, but in the event of there being any inconsistency or conflict between any provision, requirement or standard of the Scheme and any provision requirement or standard of an Agreed Structure Plan, the provision requirement or standard of the Scheme shall prevail;
…
The respondent has 'Structure Plan No 6', an agreed structure plan entitled 'Currambine District Centre Structure Plan' (the structure plan). The structure plan came into operation in August 2006. This includes all of the Currambine District Centre except for the four lots in the northwest bounded by Marmion Avenue, Delamere Avenue, Chesapeake Way and Hobsons Gate.
In relation to the 'Business' zone, within which the liquor store site is located, at cl 8.2.1 the structure plan prescribes the following general objectives:
(i)to create an active focus for the community with a diversity of nonretail or main street uses that generates day and evening activity;
(ii)to allow appropriate business to locate and develop in close proximity to residential areas for the convenience of the community;
(iii)encourage high standards of 'main street' built form to create an attractive façade to vehicle and pedestrian routes providing visual amenity and interaction;
(iv)provide efficient vehicular access and circulation with pedestrian priority; and
(v)encourage a high level of passive surveillance of public and private spaces.
In the structure plan at page 2 in an explanation of the parts, reference is made to cl 9.8 of DPS 2 (a 'standard or requirement in the Structure Plan shall be given the same force and effect as if it were a provision standard or requirement of [DPS 2]'). It states 'it is hereby provided that such force and effect shall only be given to Part 1 and Appendix 1 of the structure plan report'. Appendix 1 comprises a 'development plan', a 'zoning plan' and a 'residential coding plan'. Part 1 of the structure plan also includes 'Plan A Indicative Concept Plan'.

Liquor Control Act 1988 (WA)

The applicant submitted that the provisions of the LC Act were directly relevant to the consideration of amenity impacts and to the determination of operating hours and in particular stated:
In the context of approval for a liquor store the Liquor Act is the specific act compared to the general planning act. It is arguable that Parliament's intention is that matters within section 74 of the Liquor Act are within the exclusive jurisdiction of the Licensing Authority and excluded from the jurisdiction of the planning act.
Section 74(1) of the LC Act under the heading 'General Grounds of Objection' states:
(1)No objection shall be made except on one or more of the following grounds
(a)that the grant of the application would not be in the public interest; or
(b)that the grant of the application would cause undue harm or illhealth to people, or any group of people, due to the use of liquor; or
[(c)‑(f)    deleted]
(g)that if the application were granted
(i)undue offence, annoyance, disturbance or inconvenience to persons who reside or work in the vicinity, or to persons in or travelling to or from an existing or proposed place of public worship, hospital or school, would be likely to occur; or
(ii)the amenity, quiet or good order of the locality in which the premises or proposed premises are, or are to be, situated would in some other manner be lessened;
Or
[(h)       deleted]
(j)that the grant of the application would otherwise be contrary to this Act.
Permitted opening hours of a liquor store are dealt with under s 97 and s 98(d) of the LC Act which states:
97.Permitted hours of trading
(1)Subject to this Act and to any condition imposed by the licensing authority a licensee is authorised to sell liquor during
(a)such of the permitted hours specified in this Division; and
(b)such of the hours that may be specified under an extended trading permit,
as the licensee wishes to do so.
Under the heading 'Permitted Hours under a liquor store licence', s 98D states:
(1)The permitted hours under a liquor store licence are
(a)on a day other than a Sunday, Good Friday, Christmas Day or ANZAC Day from 8 a.m. to 10 p.m.;
(b)on a Sunday that is not ANZAC Day subject to subsection (2), from 10 a.m. to 10 p.m.;
(c)on ANZAC Day from 12 noon to 10 p.m.;
(2)Subsection (1)(b) applies only to liquor stores in the metropolitan area.
(3)There are no permitted hours under a liquor store licence on Good Friday or Christmas Day.

The refusal

At its meeting of 10 June 2008 the Council refused the application for development approval for a liquor store development on the site for the reasons:
(a)the application does not meet the objectives of the Currambine District Centre Structure Plan as it does not encourage a high standard of 'main street' built form and does not provide an active edge with an attractive façade to vehicle and pedestrian routes;
(b)the nature of the proposed land use will have a negative impact on the amenity of the surrounding residential area;
(c)the application does not comply [with] the requirements of the Currambine District Centre Structure Plan in regard to:
isetbacks;
iiglazing;
iiilandscaping;
ivfootpath width.

The issues

The following issues were identified by the parties:
1)whether it is consistent with the orderly and proper planning for the proposed liquor store to be developed at the present time, having regard in particular to the 'main street' principles which apply under the structure plan;
2)whether the development is capable of inappropriately affecting the amenity of residential land in the locality;
3)whether the design of the proposed liquor store is acceptable.

Consideration

Whether it is consistent with orderly and proper planning for the proposed liquor store to be developed at the present time, having regard in particular to the 'main street' principles which apply under the structure plan

The structure plan states under the heading 'Development Objectives and Philosophy':
The objective is to create a safe, attractive and vibrant centre that will be sustainable over time and contribute to the quality of life of the local community. The design philosophy is to, as far as possible, transform the Currambine Centre into a main street based small town centre. To this end, within the site much effort and coordination has gone into ensuring multiple ownerships and leaseholdings would not compromise the orderly and integrated development of the entire site. Streets have been brought through the site to integrate the centre and create vibrant main streets.
The Tribunal also notes that in the introduction to the structure plan, it states 'this report conveys a land use structure plan that supports the best outcome for the site within its context and constraints. The structure plan does not form a finite detailed development plan'. Under the objectives of the business zone at cl 8.2.1, objective iii states:
Encourage high standards of 'main street' built form and an active edge to create an attractive façade to vehicles and pedestrian routes providing visual amenity and interaction.
In the Metropolitan Centres Policy, main street is defined as follows:
'main street' 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 the building.
Within the structure plan are the following definitions:
'Urban Edges': shall mean building façades designed to maximise commercial exposures, create interest and pedestrian interaction, in accordance with the criteria listed in section 8.1.2 and the Development Plan (Appendix 1).
'NonUrban Edges': shall mean building façades designed (where necessary) to encourage surveillance and pedestrian activity, in accordance with the criteria listed in section 8.1.2 and the Development Plan (Appendix 1).

Timing of Development

The respondent said the main issue was the timing of the proposed development. It was said that main street objectives of the structure plan were concerned with curing existing urban design problems by encouraging pedestrian activity, activation of street frontages and encouraging surveillance. The proposed liquor store is not main street in form or in function because it is a vehicledependent, bulk-retail destination store that does not lend itself to the pedestrianfocused multipurpose shopping trips which underpin the main street philosophy. The respondent said setting the development back from the Chesapeake Way extension to allow for future development would not assist in achieving main street objectives as it would not ensure the principles of the structure plan would be upheld in future development and would likely exacerbate problems which are linked with existing poor urban design.
Mr Allerding noted that at cl 3.6.1 of DPS 2 the business zone is intended to accommodate wholesaling, retail warehouses and showrooms, as well as retail and commercial businesses which require large areas such as bulky goods and category/theme based retail outlets. In his opinion this created a tension between what the structure plan intended to achieve and what DPS 2 contemplates as appropriate in the business zone. He said, however, that in addition to the proposal being assessed against the objectives of the business zone, it is necessary, consistent with cl 6.8.1(c) of DPS 2, to have due regard to the provisions of the structure plan. The eastern façade of the building is blank, and while this would be consistent with the development criteria under the structure plan if there were a building adjoining, it is unknown when future development will occur. With no development adjoining, the respondent considered there will be for an unknown time a smaller version of a big box shopping facility and an associated car park. The form of the development, in the absence of any main street elements on the land, was not considered to meet the objectives and standards of the structure plan. Mr Allerding considered that it was appropriate that development of the site be staged such that the core elements of the structure plan can be reasonably met within each and every stage and this will not occur with the proposed development.
Mr WoodGush, for the applicant, said that it was not anticipated that all development within the structure plan area could be main street development. The development plan at Appendix 1 of the structure plan clearly showed that some of the future development within the structure plan area would have a nonurban edge. The development plan identified that the urban edge was fixed along street frontages. He believed that consistent with the requirements for nonurban edges, this development would contribute to surveillance and pedestrian activity. He considered that staged development was acceptable where the first stage would not hinder main street development in the future. In his opinion, vibrant centres require a range of uses that attract visitors and lead to spin off trade from which different uses benefit. To exclude all uses from the centre other than what he termed high end uses would divert potential customers and uses elsewhere, thereby reducing the vitality of the centre.
Mr Caddy, for the applicant, pointed out that in neither DPS 2 nor the structure plan is there a timetable for the development of different elements within the structure plan area. In his experience, it was not uncommon to develop commercial precincts in stages that reflect the demand for different types of floorspace or uses classes. The proposed development includes the provision of infrastructure framework such as access roads, footpaths and parking areas. He considered that the site, design, orientation, traffic and operation of the liquor store would not result in land use conflict and would not deter future development of the proposed main street.
The Tribunal notes that the Currambine District Centre site is largely undeveloped. It presently includes within the structure plan area only the cinema complex, Currambine shopping centre and the service station. If the entire district centre were to be developed at once, it is clear that there would be main street development along Chesapeake Way frontages. Behind the building on the street frontages would be service areas, car parking and additional buildings. The buildings behind, according to the structure plan, would not be main street but would be required to have a nonurban edge, which largely relates to the opportunity for passive surveillance of public and private spaces, which is dealt with under issue 3 below. In respect of the development of the district centre, the Tribunal accepts the applicant's submission that the nature of planning involves developments occurring at different times.
Mr Michael Milne, a manager for a large real estate firm with knowledge of the ownership of lots in the Currambine District Centre, gave evidence on what he considered to be timetables for development of the other lots. The Tribunal notes that the Council has already approved 63 group dwellings on the northeastern lot on Delamere Avenue and, at its meeting of 25 November 2008, granted development approval for a proposed tavern, offices and shop at 14 Hobsons Gate, corner Chesapeake Way, the lot diagonally opposite the liquor store development site. While Mr Milne had opinions on when development of other lots might occur, however it is the location of the liquor store on the site, and the development of the related infrastructure that has influenced the Tribunal's deliberations.
The Tribunal has formed the view that timing of the development of the building is not a reason for refusing the application. The use proposed is consistent with the objectives of the business zone under DPS 2, it addresses certain requirements for nonurban edges and, importantly, is situated relative to the access road extensions to be provided as part of the development so that it does not compromise the location of future main street development consistent with the intent of the structure plan.
The respondent also submitted that the timing of the development gave rise to concerns about car parking. It was said this aspect of the development had not been adequately addressed and so had the potential to compromise the potential for future main street development and that therefore the development should not proceed.

Car parking

Clause 4.8.2 of DPS 2 specifies that the number of onsite car parking bays to be provided shall be in accordance with Table 2. A liquor store is not listed, but Table 2 includes a standard of seven bays per 100 square metres NLA for shopping centres under 10,000 square metres. Schedule 3 of DPS 2 lists the Currambine District Centre as a centre of up to 10,000 square metres NLA. It was common ground that using this parking standard, 95 bays were required for the liquor store and 123 were to be provided as part of the development.
If the future main street development sites depicted on the liquor store development site adjacent to the Chesapeake Way extension were developed to the extent possible over two storeys, this would yield 2,670 square metres NLA. Mr Caddy argued that parking for this future development, which would be in the 'Business' zone, could be estimated at one bay per 30 square metres NLA, the standard for office development. This would be 3.3 bays per 100 square metres. Counsel for the respondent submitted that the mix of future uses is unknown and most other uses that might be allowed, and even encouraged in the main street development such as food, health and retail require a greater ratio of bays to floor area. It was his submission that the shopping centre standard of seven bays per 100 square metres was a better guide to possible future demand and should be used.
The Tribunal agrees with the respondent because the mix of future main street uses is not known and parking requirements cannot be further refined at this time. The purpose of the structure plan is to encourage a mix of uses consistent with a vibrant district centre but in the form of main street development. On this basis, if all the potential future main street floor area were developed, the parking requirement at the shopping centre standard would be a further 185 bays. In the liquor store development area it was shown that a surplus of 28 bays would be constructed with a possible future additional 27 bays. There would, however, be 23 bays lost in the construction of the roundabout, leaving a surplus of 32 bays.
Of concern to the respondent was whether it would be possible to provide sufficient bays in the future to enable full development of the main street buildings and uses along the Chesapeake Way extension. Mr Allerding stated that because of the timing it was not possible to calculate the extent of parking that would be required for the main street development and therefore whether the number of bays could be provided. Counsel for the respondent argued that the respondent might be deprived of choice in what main street development it could allow because parking availability would be established by the liquor store development approval. That is, development of the liquor store now could compromise the implementation of the main street planning objectives of the structure plan.
Counsel for the applicant submitted that even if the parking standard for a shopping centre were used, the potential for future main street development would not be compromised. The existing car park west of the shopping centre could be extended 137 potential bays were shown on a plan produced by Ken Paterson Architects and the Tribunal was also referred to the areas yet to be developed directly east of the liquor store development site and adjacent to the cinemas. In particular, counsel for the applicant and Mr Caddy referred to the use of reciprocal parking arrangements which were likely to be possible with the mix of uses in the main street development.
The Tribunal notes that in approving the tavern, offices and shop at No 14 Hobsons Gate, the Council accommodated a shortfall of 15% in parking with reciprocal use of bays by uses with daytime and evening peak customer use periods. The Tribunal views the site as a whole in respect of parking requirements. There will be, overall, uses that have different peak use times and at these different times parking bays at different locations on the site would be sought after. This would facilitate the consideration of reciprocal parking with future development applications.

The Tribunal has accepted the applicant's explanation of lease arrangements for the site. The leaseholders and tenancies in the existing shopping centre have the car parking provided as common property. The liquor store is on the same site and the lease is to be just for the footprint of the building. The parking is to be part of the common property with parking bays available to all customers of the shopping centre and this arrangement will be a consideration with the future main street development. If there were proposals to subdivide the site, then reciprocal parking and access arrangements across neighbouring lots would be a consideration, as provided for at cl 4.9 of DPS 2.
The Tribunal has formed the view that the timing of the proposed development will not compromise future development options for main street development as envisaged in the structure plan and is also consistent with the objectives of the business zone of DPS 2. In this regard, the development of the liquor store at this stage in the development of the Currambine District Centre is considered to be consistent with orderly and proper planning. If this were the only issue, then discretion could be exercised and the development allowed.

Whether the development is capable of inappropriately affecting the amenity of residential land in the locality

There is no evidence that the appearance of the proposed building, traffic movements or noise arising from the use would have any adverse impact on the amenity of residential land in the locality. The house nearest the proposed liquor store is 125 metres to the west across the dual carriageway of Marmion Avenue. The closest land zoned residential within the Currambine District Structure Plan is 175 metres to the northeast beyond No 14 Hobsons Gate, the site of the tavern, office and shop development approved by the Council in November 2008. The closest house to the east is 125 metres distant and will be separated from the liquor store by the future main street development and development of the civic and cultural zone.
The applicant submitted that because of the provisions of the LC Act, and in particular s 74 referred to earlier, issues concerning amenity of the locality in which the premises or proposed premises are to be situated are matters which are within the exclusive jurisdiction of the licensing authority and therefore excluded from the jurisdiction of the PD Act.
Such a proposition has been put to this Tribunal on previous occasions and rejected.
Clause 6.8.1 of DPS 2 specifically charges Council and the Tribunal on review to have regard to:
(a)interest of orderly and proper planning and the preservation of the amenity of the relevant locality.
In Barwell Nominees Pty Ltd and City of Wanneroo [2007] WASAT 156 it was argued that the style of operation and management of licensed premises is a matter that should be left to the licensing authority under the provisions of the LC Act. In that case, counsel submitted:
[The] Tribunal should not be confused with or be drawn into a debate with respect to operation of the proposed tavern ... they are properly issues to be addressed at the liquor licensing stage. There is a whole legislative framework within our jurisdiction of Western Australia that deals with the appropriateness of licensing a particular premises to sell liquor. And questions of proposed use operation are dealt with within that jurisdiction. And there's a clear distinction between planning considerations and proposed operations of particular premises.
The Tribunal did not agree with that proposition and at [74] [75] stated:
The Council, or the Tribunal upon review, is required, in considering an application for planning approval under DPS 2, to have regard to the amenity of the area in which the proposed licensed premises will be established.
The Tribunal in Busen Pty Ltd and City of Subiaco [2007] WASAT 49, Fazio and City of Fremantle [2006] WASAT 169 and the former Town Planning Appeals Tribunal Sistaro Pty Ltd & Anor and City of Joondalup [2003] WATPAT 43 has considered the issue and found that the style of operation and the management regime of licensed premises can have a significant effect on the amenity impacts associated with such facilities.
In St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318 (St Patrick's Community Support Centre) at [40] the Tribunal found:
In order to assess the impacts of the proposed development on the amenity of the locality, it is necessary in this instance, given the definition of 'amenity' in the Scheme, for the Tribunal to undertake an objective inquiry as to the character of the area that represents that state of amenity (see Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296) and an assessment of the likely future character of the area (Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] 150 LGERA 116).
In the present case, the respondent contended that the development in the form proposed would exacerbate an existing problem with antisocial behaviour in the area which is a result of many factors including poor urban design.
The respondent called a number of residents from the Iluka area on the west side of Marmion Avenue who objected to the proposed liquor store. The evidence of those resident objectors regarding the issue of antisocial behaviour was that it appeared to emanate from groups of young people frequenting the takeaway food outlets in the northwest corner of the Currambine District Centre who then made their way back into Iluka by way of the underpass under Marmion Avenue.
There was no evidence that any of the current or past antisocial behaviour is connected with the operations of the existing Woolworths liquor store which is located within the Currambine shopping centre a short distance from the proposed site. The respondent also confirmed that they were not aware where the liquor that is consumed by the persons causing the antisocial behaviour is coming from.
It was noted in evidence by the expert planners that underpasses are no longer the preferred means of access and egress due to lack of visibility and overhead walkways are now more favoured, indeed this may be something the respondent may wish to look at in respect of the antisocial behaviour in this area.
It was confirmed by the applicant that it was proposed that the liquor licence for the proposed store would be removed from the current Woolworths liquor store within the Currambine shopping centre to the proposed store. The Tribunal noted that the liquor store in its current position in the commercial zone of the Currambine District Centre is a 'P' use whereas by relocating it the short distance to the proposed location in the business zone makes it a 'D' use.
At its meeting of 10 June 2008, when the respondent resolved to refuse the application, the second of its stated reasons for refusal was that:
The nature of proposed land use will have a negative impact on the amenity of the surrounding residential area.
At item 2 of its resolution, Council noted that there were 44 objections received from the community stating that their amenity would be affected by the development and that it would increase the high level of antisocial behaviour which currently exists in the area.
In its report to Council, the respondent's planning officers, in addressing that issue, stated:
The majority of the submissions were mainly concerned with the antisocial behaviour caused by youth drinking in the area.
The submitters were concerned that the liquor store will contribute to the issue of graffiti and vandalism. Whilst this may be a genuine concern of the surrounding residents, it is (with respect) not reasonable to definitively attribute these concerns to the proposal. Youth antisocial behaviour is a social issue and is a matter for the teenagers, parents or guardians of teenagers, the police to ensure law and order is maintained.
The sale of alcohol to under age people and possible public consumption are matters for the Department of Racing, Gaming and Liquor, and the owner, to be regulated by management practices. It is also the responsibility of the owners of the liquor store to ensure they do not sell alcohol to under age people.
The respondent also called evidence from Dr Chikritzhs, a Senior Research Fellow and Statistical Advisor at the National Drug Research Institute at Curtin University of Technology, who reviewed the scientific research literature concerning alcohol availability and alcoholrelated harms with a focus on premises licensed to sell alcohol for offpremises consumption.
Naturally, in many cases such as the present one, residents' objections are based on an apprehension or fear of what may happen and those views are something which councils, when considering the matter, and this Tribunal on review, must try and balance on the evidence before it.
In Self Help Addiction Resource Centre Inc v Glen Eira City Council (2005) 145 LGERA 124, the Victorian Civil and Administrative Tribunal in dealing with a proposed alcohol and drug resource centre and neighbourhood residents' objections stated at [56]:
While we can appreciate the concern expressed by the resident objectors on these matters, in any assessment of the amenity impacts of this proposal, a distinction must be drawn between what people perceive the impacts of this use will be, and the reality of those impacts. It is perfectly reasonable for the residents to hold the fears that they do, but from the Tribunal's perspective we must be satisfied that there is a factual or realistic basis to those fears in order for us to conclude that this use will result in the amenity impacts alleged by the residents.
In the present case, the Tribunal is not on the evidence before it able to conclude that there is a factual or realistic basis to the fears of the residents. All of the evidence relating to current antisocial behaviour appeared to relate in some way to young people frequenting the fast food outlets and loitering in the area of the underpass and from there travelling back into the Iluka area.
There was, for example, no evidence that any of the antisocial behaviour was related to or arose as a result of the current liquor store which has been operating in the area for some time and which it is proposed to remove a short distance to the current location. However, it is acknowledged that the scale of the new liquor store if approved by the liquor licensing authority will be significantly larger than the current operation.
It was also noted by the Tribunal that at the time this matter was under review, the respondent at its meeting of 25 November 2008 approved a tavern on the site immediately adjacent to the proposed liquor store.
It would appear that the antisocial behaviour currently complained of is largely a result of young people in the surrounding residential areas including Iluka being attracted to the various outlets and services within the Currambine District Centre, be they fast food outlets, the cinema, the shopping centre itself, the liquor store, or any of the other retail outlets which are or will be located within the centre.
In St Patrick's Community Support Centre, the Tribunal in considering the impact of the development on 'the amenity of the locality' had to consider the range and extent of nonresidential uses within the locality and observed at [57]:
The concerns raised by the residents are valid; the range and extent of nonresidential activities within this locality equivocally affects the level of amenity that residents within this locality could reasonably expect. The former Town Planning Appeal Tribunal in BP Australia Pty Ltd v City of Perth (Appeal No 16 of 1993) held the view that "the residents adjoining a commercial site are to expect a diminished level of comfort" and in Gosatti Holdings Pty Ltd v City of Fremantle (Appeal No 48 of 1999 delivered 17 March 2000), the former Tribunal further stated that "it barely needs to be said that residential uses in close proximity to nonresidential uses cannot expect the same degree of amenity as would be found in a homogenous residential suburb". The Tribunal concurs with these findings and considers this to be the case in this instance. The proposed use is considered to be compatible with the existing use of the Stella Maris building; however, there are likely to be some impacts on the adjoining residential properties. The degree of impact will determine whether the proposed use is acceptable or not.
In the present case, the Tribunal acknowledges the concerns of the residents, however, it would appear that although the main conduit for the antisocial behaviour complained of is the underpass under Marmion Avenue, the actual source is unclear and probably varied, but not linked to the current liquor store within the Currambine shopping centre. As to whether the approval of the present development will exacerbate the current problem is also at best unclear.
Even taking the evidence of Dr Chikritzhs into account in respect of the various academic studies on the matter, there is no empirical evidence before this Tribunal to satisfy it that the proposed development will impact in the way submitted by the respondent, particularly when the management proposals outlined by the applicant are taken into account.
The issue of antisocial behaviour will also be examined by the liquor licensing authority pursuant to s 74(1)(g) of the LC Act when the removal application is heard and the respondent may, if it thinks it appropriate, apply to intervene in those proceedings.

Whether the design of the proposed liquor store is acceptable

In considering this issue, in addition to the building, the Tribunal had regard to the evidence and submissions on DPS 2 and the structure plan standards for those aspects of the development critical to the operation of the use but external to the building. The Tribunal notes that, with the November plans, landscaping, footpaths and setbacks of the development from the site boundaries have fallen away as design issues. Each of these elements of the design and such matters as car park layout and levels and lighting could be addressed by conditions if the development were to proceed. The significant issue before the Tribunal concerned the design of the liquor store building. This related to the liquor store being a nonurban edge building which under the structure plan is required to have façades designed (where necessary) to encourage passive surveillance and to the structure plan objective at cl 8.2.1(v) which encourages a high level of passive surveillance of public and private spaces.
Clause 8.1.2(ix) of the structure plan states:
Other than for areas of blank façade allowed for under previous clauses, building frontages are to comprise a minimum 70% of windows and visually permeable doors. Window sills shall be set no less than 600 millimetres from the ground floor level, open shop fronts are encouraged.
Clause 8.1.2(v) of the structure plan states:
There shall be no blank façades to the building other than where the building directly abuts another building or a loading bay.
Mr Allerding said that 70% glazing standard of cl 8.1.2(ix) of the structure plan enables the required passive surveillance of public and private spaces as well providing a design consideration to break up the extent of building mass. Mr Allerding pointed out that none of the glazing in the western wall provided overlooking as it consisted only of highlight windows. On the southern façade Mr Allerding considered that the only interaction would be at the front doors and the windows adjoining, which would not adequately meet the objectives of the structure plan. He also offered the comment that while the eastern façade might eventually abut the rear of the main street development, it would at this stage face onto the Chesapeake Way extension. In his submission this reinforced the view that the development should be staged so that the main street elements were constructed first to ensure the core elements of overlooking and interaction were met.
The applicant responded by referring to the length of window across the southern façade and the presence of the closedcircuit television cameras at the corners of the buildings and in the service access way at the rear. It was said that this overlooking, together with observation from within the car park itself and the Chesapeake Way extension, provided a sufficient level of surveillance.
The Tribunal accepts that bulk good stores need to have a balance between displaying of the goods and window space. With the development proposed the Tribunal has formed the view that the surveillance of the footpaths and parking area associated with this development is acceptable. Windows extend across about 55% of the southern façade interrupted by columns and there would be at least an oblique view of most of the car park to the south of the building from those windows. CCTV covers the remainder. Internal shelf heights can be conditioned to ensure that casual surveillance is available. The parking to the west has no overlooking windows but, as submitted by the applicant, there are good sightlines from the southern part of the car park and the service road and also via the CCTV to be installed.
The Tribunal has found that design of the development as set out in the November plans and subject to appropriate conditions would be acceptable because it sufficiently addresses the objectives of the structure plan and DPS 2.

Conclusion

The Tribunal has formed the view that the development, as set out in the November plans, can be supported. On the first issue, the Tribunal concluded that the development of the proposed liquor store at this time would be consistent with the orderly and proper planning of the site. The structure plan is directed toward transforming the Currambine District Centre into a main street based small town centre. The focus of the main street development will be the Chesapeake Way extension through the site.
The structure plan states that it is not a finite detailed development plan. Behind the main street development, nonurban edge forms of development can be considered in certain circumstances. The proposed development is set back sufficiently from Chesapeake Way extension to provide for the development of main street buildings and uses. It might be the respondent's preference if the main street development were to occur first, but the Tribunal does not accept that no other development should be considered until this occurs. The structure plan does not include any reference to staging development, either in location or form. The proposed development is considered to be compatible with, and able to be integrated with, the future main street development along the Chesapeake Way extension. The proposed liquor store development will provide the carriageways and footpaths that will assist in this outcome. The Tribunal also notes that the development would also be consistent with the objectives of the business zone of DPS 2 within which it is situated which includes providing for the type of use requiring a larger floor area.
Car parking was identified as a particular concern by the respondent. It said that if the liquor store were developed first there would be provided sufficient car parking bays for the liquor store, but there would not be available in the liquor store development area sufficient space to provide the car parking bays necessary to enable all of the potential future adjacent main street development to proceed.
The Tribunal has concluded that looking at the site as a whole, including parking provided by the proposed development, existing car parking associated with the shopping centre, future potential car parking spaces on the site, and the possible future use of the still vacant areas of the site, together with the potential for reciprocal parking between uses that have different peak customer times, the overall parking requirements of the site could be satisfied. The Tribunal formed the view that allowing the liquor store development now would not compromise the potential future parking capacity to the extent that main street development could not be achieved consistent with the structure plan.

Issue two is concerned with the impact of the proposal on the amenity of the residential land in the locality. The development will not have any impact on the amenity of the locality because of traffic or noise. The impact identified by the respondent was the potential increase in antisocial behaviour by youth as a result of the increased availability of alcohol. The Tribunal is not satisfied on the evidence before it from a planning perspective that there will be such an increase or that the development will inappropriately affect the amenity of residential land in the locality.
Furthermore, the Tribunal is satisfied that any issue that may arise in respect of the proposed development from a liquor licensing perspective can be adequately managed within the regime proposed to be put in place by the applicant, keeping in mind the specific 'conduct of business' provisions of the LC Act which are in place specifically to regulate the sale, supply and consumption of liquor, the use of premises on which liquor is sold, and the services and facilities provided in conjunction with and ancillary to the sale of liquor.
The third issue was whether the design of the proposed liquor store was acceptable. The November plans addressed most concerns, particularly footpaths, setbacks and landscaping, but the issue that remained was whether the design provided adequate passive surveillance of public and private spaces as required of a 'nonurban edge' building.
The Tribunal found that the glazing on the southern façade, while not as extensive as set out in the structure plan, was sufficient to provide at least an oblique view of most of the southern area of the car park. The parts that could not be seen were to be covered by the CCTV included in the design. The western car park was not overlooked from the building, but the Tribunal accepted that clear sightlines to this area and the CCTV were sufficient in this instance to address the structure plan objectives.
The Tribunal found that with appropriate conditions, the November plans sufficiently addressed the design requirements of DPS 2 and the structure plan.
The Tribunal concluded that the development of the liquor store and associated car parking, access roads, footpaths and landscaping in the locations proposed in the November plans would be consistent with the orderly and proper planning of the Currambine District Centre, would not have an unacceptable impact on the amenity of the locality and would be of an acceptable design. The Tribunal therefore decided to uphold the application for review and to grant conditional approval of the proposed development.

Conditions

As ordered by the Tribunal, the respondent produced a schedule of conditions, without prejudice to its position, that it would want imposed should the Tribunal be minded to allow the development. The applicant provided a response commenting on conditions objected to and setting out amendments and alternative conditions to be considered.
The schedule of draft conditions predated the November plans and so in the course of the hearing the parties were provided with an adjournment to discuss the conditions and to inform the Tribunal if there were any changes in their respective positions. The respondent called as a witness Ms Melinda Bell, Acting Coordinator of Planning Approvals for the City who was involved in preparing the schedule of draft conditions.
The discussion below identifies disputed draft conditions by the letters used in the respondent's schedule for ease of reference by the parties.
Draft condition (e) was concerned with the provision of detailed landscaping plans for the liquor store development site. This was amended to include the area between the proposed roundabout and the existing cinema and shopping centre, an area that will be affected by the development. Also included were the areas that would be used for parking in the future to the north and northwest of the extension of Ocean Gate Parade. Reference to the area of the future main street development was deleted from the draft condition as the landscaping of this area was included as a separate condition at the request of the applicant.
The Tribunal also accepted the applicant's argument that the appropriate scale for the plans was 1:200 for the complete development as it would be more efficient to have the plan as one sheet and no detail need be lost.
Draft condition (i) required the preparation of a refuse management plan indicating the method of refuse collection. Relevant to consideration of this condition is draft condition (t) which required that there be no storage of goods, materials or waste external to the building. Draft condition (t) further required that no box crushing or similar activity be carried out external to the building, that waste receptacles be placed outside the building only on the day of collection and that emptied receptacles be returned inside the building as soon as practical. The November plans showed within a storage area within the liquor store building an area marked 'compactor, bailer, glass collection bins to be located in this area'.
The applicant requested that during the day in times of high turnover and busy trading, such as Christmas, it be allowed to store stock or waste outside the building in the access way, not just on collection day. The respondent was concerned that the access way was visible from the street and waste receptacles should be removed within an hour of the waste being collected.
The Tribunal has concluded that it is unnecessary to have both condition (i) and (t). Condition (i) requires the preparation and approval of another document and a waste management plan would essentially include matters addressed under condition (t). What should be imposed is an equivalent of draft condition (t) amended to provide that nothing be stored outside the building overnight, that nothing be stored in the area of future development east of the store, that nothing be stored so as to prevent use of any parking bays and that items placed in the access way be returned inside the building as soon as practicable. It was considered that placing goods and waste bins in the rear access way on other than waste collection days would not have so significant an impact as to require prohibition.
Draft condition (l) required that shelving adjacent to glazing in the southern elevation of the liquor store be no higher than 1.2 metres or deeper than 400 millimetres to allow appropriate passive surveillance of the car park from the building consistent with objective 8.2.1(v) for the business zone. Mr Gary Doyle, the architect for the development, provided a sketch of a standard Dan Murphy shelf which is 532.4 millimetres deep and 1.559 metres high. As an alternative, the applicant said removing the top level would result in a shelf with the top of the next rack at 1.35 metres high. It was said observers could look over bottles on a shelf of this height.
The respondent said shelving 532 millimetres deep would be acceptable. The Tribunal is of a view that with shelving this deep, it would not be readily possible for many adults to casually survey the car park over a 1.35 millimetre height shelf. The sketch provided by Mr Doyle shows that the removal of two shelves would result in shelves 1.26 metres high. The Tribunal considers there could then be an appropriate level of surveillance through the windows of the liquor store. Condition (l) could be amended to accommodate shelves 532 millimetres deep and 1.26 metres high adjacent to the windows.
Draft condition (n) set out the hours of operation of the liquor store preferred by the respondent. The applicant objected, saying the LC Act should be the reference for hours of operation. The applicant could then decide its own opening hours within the operating hours allowed.
Under the heading 'Permitted Hours under a liquor store licence' s 98D states:
(1)The permitted hours under a liquor store licence are
(a)on a day other than a Sunday, Good Friday, Christmas Day or ANZAC Day from 8 a.m. to 10 p.m.;
(b)on a Sunday that is not ANZAC Day subject to subsection (2), from 10 a.m. to 10 p.m.;
(c)on ANZAC Day from 12 noon to 10 p.m.;
(2)Subsection (1)(b) applies only to liquor stores in the metropolitan area.
(3)There are no permitted hours under a liquor store licence on Good Friday or Christmas Day.
Mr Martin Smith, the national general manager for Dan Murphy's liquor stores in Australia gave evidence on behalf of the applicant and in reply to the question from counsel for the respondent 'Are you able to say what is proposed in terms of hours of operation?', Mr Smith stated:
Monday, Tuesday, Wednesday 9 o'clock till 8 pm; Thursday to Friday 9.00 till 9.00; Saturday 9.00 till 8.00 and Sunday 10.00 till 6.00. They are generally our trading hours throughout Australia with a few exceptions for local requirements.
Although the LC Act specifically sets out the permitted hours of operation for a liquor store licence, the Tribunal acknowledges that in certain circumstances there may well be a legitimate planning reason to restrict those hours.
However, in the present case no evidence has been led as to why any specific restriction should be imposed, and in the circumstances this Tribunal is not prepared to set limitations on the trading hours and will leave the liquor licensing authority to set them as they see fit if it grants approval to the removal.
Draft condition (p) required that, to facilitate orderly movement of vehicular traffic and parking associated with the development, an easement in gross pursuant to s 195 and s 196 of the Land Administration Act 1997 (WA) be granted to the respondent in relation to the internal roads and parking areas. The respondent submitted that it was a common condition for easements in gross to be applied where there are internal roads. In this development there was no requirement that the internal extensions of Chesapeake Way and Ocean Gate Parade become public gazetted roads. The respondent said an easement is also required where there is to be reciprocal parking and use of access ways between or across premises. The object was to prevent access ways and parking being identified for use by one business only and particularly to ensure that sufficient parking bays are available for reciprocal parking when the main street buildings are developed adjacent to the liquor store.
The applicant opposed the condition as having no proper planning purpose and as being unnecessarily burdensome on the landowner. It was said that there was no such requirement for the existing Currambine shopping centre. The existing internal access roads and car parking areas were reflected in the various tenancy agreements as common areas. If there was concern about an internal access road or car bays being sealed off, and it was contended that there was no logical basis for such a concern, the applicant would agree to the insertion of words in draft condition (c) and the applicant's alternative condition (k) that require that driveways and the car park be provided and maintained to the satisfaction of the respondent.
The Tribunal notes that the site is one large lot (the applicant's lease is for the building floor area only) which includes a shopping centre and cinema with various tenants and sublessees. The Tribunal supports the submission that each additional use developed on the site must be able to provide an adequate additional number of parking bays (with reciprocal use of bays a consideration). Consistent with the operation of most shopping centres, the existing parking bays are not dedicated solely to a particular use and that is not proposed in this application. The Tribunal has formed the view that for this development it is appropriate that access roads and parking adjacent to the liquor store must also be available to any users of the shopping centre and cinema. Cinema patrons may wish to park in the bays provided adjacent to the liquor store and liquor store customers may wish to park elsewhere on the site. Importantly, the access roads and all parking spaces must be available to the different uses on the site. An easement in gross just for the liquor store development site is not considered necessary to achieve this. It is also apparent that uses on the separately owned lots to the north of the site are not, or will not be, dependent on reciprocal parking arrangements or vehicular access through the shopping centre site. If they were, then it would be necessary to consider the creation of easements. This might also be required if the site were to be subdivided.
The Tribunal has concluded that draft condition (p) is not necessary. To assist in achieving the objectives of the structure plan, however, draft condition (c) and (k) need to be amended. Draft condition (c) is concerned with the design standard of parking bays, driveways, ingress and egress points. The respondent requested that as an exception from the usual standard for parking bays that adjacent to landscaping bays be a minimum of 2.8 metres wide to avoid drivers stepping directly from a car onto landscaping. The Tribunal agrees with this bay width. Draft condition (c) also requires these elements to be constructed, drained and thereafter maintained to the satisfaction of the City. To this could be added the requirement that continued access to the bays be made available for patrons of the businesses on the site.
The other draft condition in this regard referred to by the applicant was (k). The applicant had requested an alternative to the respondent's draft condition (k) to provide for the location, laying out and design details for access roads and parking bays. The Tribunal has concluded that the respondent's draft condition (k) could be amended to address the concerns about timing and include reference to all of the access road, parking and footpath works being maintained.
Draft condition (r) required the same number of bays lost as a result of construction of the new roundabout, 23 parking bays, to be constructed as an extension of the existing shopping centre car park. The applicant objected, saying it was now proposed to provide 135 bays adjacent to the liquor store rather than the originally proposed 98 bays.
The respondent's position was that car bays from near the cinema should be replaced nearby, not on the liquor store development site. It was submitted that if this did not occur then in the future when the main street development adjacent to the liquor store occurred, rather than be provided nearby, the parking bays for that development will have to be provided some distance away as an extension to the existing shopping centre car park.
The Tribunal has formed the view that while the liquor store development must be required to provide new parking bays, and it is desirable that these be provided in close proximity to the building, these bays are not strictly for use by liquor store customers only when the main street development is built, nor will the additional bays provided as a condition of that development be for use only by those tenancies. The liquor store development is on a site which also includes a shopping centre and a cinema complex. The shopping centre includes multiple tenancies. The additional bays provided at this stage will be sufficient to replace those lost with the roundabout construction. Who parks where on the site when attending the various uses, existing and proposed, will be a function of when patrons arrive and the purpose of their visit. The Tribunal is satisfied at this stage if sufficient new bays are added in reasonable proximity to the new use, and additional bays are included to replace those lost as part of roadworks, that is sufficient. At some point when the main street uses are added it might be necessary to add bays more distance from the use, but these might be closer to existing uses in the shopping centre and so the overall balance of convenience for patrons will generally be maintained. The Tribunal has concluded that draft condition (r) is not required because of the number and location of bays being provided as part of this development. This view is reinforced by the proposed changes to draft conditions (c) and (k) which will ensure new bays are maintained and access to them is available to all the retail and commercial developments on site.
Draft condition (u) required that a dual use path be constructed adjacent to the site along Marmion Avenue. It was clarified that this would be from the path adjacent to the Ocean Gate Parade extension to the northern boundary of the site. Ms Bell said the path was necessary to satisfy cl 8.1.2(xxi) of the structure plan which requires convenient, safe and direct pedestrian access as an extension of the 3 metre wide footpaths required at the urban and nonurban edges within the site.
The applicant said a liquor store was a destination outlet to which most customers would travel by car and there was no evidence adults would attend the site on foot.
The Tribunal considers that the dual use path should be provided as a condition of the development approval. There is currently a dual use path around the perimeter of the Currambine District Centre except for adjacent to the liquor store development site and the vacant No 4 adjoining to the north.
It is the development of the site that generates the requirement to make the contribution to the completion of this element of the structure plan objectives. The Tribunal does not accept that the construction of the path depends upon whether the proposed use attracts a small or significant amount of pedestrian traffic. That the dual use path might provide benefit to other users is incidental but a path should be required to cater for those who will attend the site by bicycle or on foot. The provision of this section of the path as part of the progressive development of the Currambine District Centre is considered to be consistent with orderly and proper implementation of the structure plan.
It was agreed between the parties that certain other conditions in the schedule be imposed and others deleted. The Tribunal has accepted these and together with the Tribunal's findings in respect to the conditions in dispute as set out above, the Tribunal has determined what conditions should be applied to the proposed development and these have been listed and relettered.

Orders

1.The application for review is allowed.
2.The decision of the City of Joondalup dated 10 June 2008 is set aside and development approval is granted for the proposed liquor store development, access roads, footpaths, car parking and landscaping as set out on the plans of Ken Paterson Architects titled 'Overall Site Plan' DM18a and 'Site Plan of Development Area' DM18b, both dated 24 November 2008 and the elevation 'Finishes Schedule' with the Tribunal date stamp 28 November 2008, (copies attached) subject to compliance with the following conditions:
(a)The colours and materials of the southern and western façade of the building shall be as shown on the plan titled 'Finishes Schedule' approved by this decision to the satisfaction of the Manager Approvals, Planning and Environmental Services.
(b)The southern and western façades shall be treated with non‑sacrificial anti-graffiti coating.
(c)The parking bays, driveways and points of ingress and egress to be designed in accordance with the Australian Standard for off‑street car parking (AS 2890.01 2004) with the exception of the following:
(i)parking bays adjacent to landscaping shall be a minimum of 2.8 metres wide; and
(ii)up to a maximum of 5% of the required parking bays can be set aside as small car bays.

Such areas are to be constructed, drained, marked and thereafter provided and maintained to the satisfaction of the Manager Approvals, Planning and Environmental Services prior to the development first being occupied. These works are to be done as part of the building program and access to all shopping centre customers is to be maintained thereafter.

(d)The lodging of detailed landscaping plans for the development site with the building licence application. This plan shall include the future car bays north and north-west of the extension to Ocean Gate Parade as being landscaped to a similar standard as the 3 metre wide landscaping strip along Marmion Avenue. The plan shall also include the area between the proposed roundabout and the existing cinema and shopping centre buildings. For the purpose of this condition, a detailed landscaping plan shall be drawn to a scale of 1:200. All details relating to paving and treatment of verges are to be shown on the landscaping plan. All landscaping, reticulation and verge treatments, based on Waterwise principles, are to be established in accordance with the approved plans prior to the development first being occupied and thereafter maintained to the satisfaction of the Manager Approvals, Planning and Environmental Services.
(e)The area indicated as 'Future Two-Storey Main Street Development Office and Commercial' and 'Future Two-Storey Main Street Development', shall be urban landscaped to a maximum cost of $50,000 (including GST), as follows:
(i)A grove of shade trees planted at semimature height such that the lowest branches are above head height and the trees provide at least one continuous line of shade canopy or will likely do so in five years.
(ii)No less than 15 benches spaced in groups of two or three across the area.
(iii)The area may include areas of soft landscape of well maintained grass or low ground cover.
(iv)The area is to be lit to the satisfaction of the Manager Approvals, Planning and Environmental Services.
(v)The area not forming part of soft landscaping being paved kerbs and footpaths.
(vi)The area is to be free of advertising unless approved by Council.
(vii)These landscaped areas are to be established in accordance with the approved plans prior to the development first being occupied and thereafter maintained to the satisfaction of the Manager Approvals, Planning and Environmental Services.

(f)Shade trees shall be planted and maintained in the car parking areas at the rate of one tree for every four parking bays, to the satisfaction of the Manager Approvals, Planning and Environmental Services.
(g)Any advertising signs shall be subject to a separate development application.
(h)The applicant must provide to the satisfaction of the Manager Approvals, Planning and Environmental Services as part of the building program a plan showing details of proposed design, levels, lighting and retaining walls associated with the proposed car park and the internal access roads (that is, the extension of Chesapeake Way, the roundabout and the realignment and extension of Ocean Gate Parade). The plans required by this condition must also show footpaths on the eastern and western sides of the main street (extension of Chesapeake Way, which on the eastern side must provide an unbroken connection with the footpath network within the adjacent shopping centre, and a footpath along the northern side of the extension of Ocean Gate Parade linking to the dual use path along Marmion Avenue (the subject of condition (l). Such works as shown on the plans, including the construction of the internal access roads and footpath, to be constructed, drained and thereafter provided and maintained to the satisfaction of the Manager Approvals, Planning and Environmental Services as part of the building program prior to the development first being occupied.
(i)Shelving within the building adjacent to those parts of the southern elevation which are glazed shall be no higher than 1.26 metres (including any bottles which may be placed on top of the shelves) and no deeper than 533 millimetres in order to allow the appropriate surveillance of the car park.
(j)The liquor store may trade during the hours specified by the liquor licensing authority pursuant to the Liquor Control Act 1988 (WA).
(k)Goods, materials or waste associated with the development may be stored external to the building in the rear service access way, but must not be stored external to the building overnight or at any time on the area marked 'Future TwoStorey Main Street Development' to the east of the proposed building or in a position that prevents use of any parking bay. No box crushing or other similar activity associated with the development may be carried out external to the building. Waste receptacles placed outside the building to be collected must be returned inside the building as soon as practicable following collection.
(l)A dual use path adjacent to Marmion Avenue shall be constructed from Ocean Gate Parade to the northern boundary of the site.
(m)Conditions (a), (c), (d), (e), (f), (h) and (l) must be completed before the use may continue.

I certify that this and the preceding [129] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER