Yum Restaurants International and City Of Rockingham

[2008] WASAT 235

YUM RESTAURANTS INTERNATIONAL and CITY OF ROCKINGHAM [2008] WASAT 235

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 235
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:77/2008	Heard:	8 JUNE 2008, FINAL SUBMISSION 10 JULY 2008
Coram:	MR J JORDAN (MEMBER)	Delivered:	8/10/08
No of pages:	26	Judgment Part:	1 of 1
Result:	The application for review is dismissed The refusal of the proposed development by the respondent is affirmed
Category:	B
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Parties:	YUM RESTAURANTS INTERNATIONAL CITY OF ROCKINGHAM
Catchwords:	Town planning Development Refusal Building with 86 seat dining area, drive-through takeaway facility and on-site parking Waterfront Village zone Location at southern edge of zone Rockingham Beach Waterfront Village Policy Fast Food Outlets Policy Easement for access and parking across front of site Access leg to cul­de­sac at rear of site - Compulsory cash­in­lieu contribution for parking Purpose of Precinct 2C Flinders Lane in Waterfront Village Policy Main street design to create village Setbacks Planning objectives Land use in locality Orderly and proper planning
Legislation:	City of Rockingham Town Planning Scheme No 1 (Revoked) City of Rockingham Town Planning Scheme No 2, cl 4.4, cl 4.4.1, cl 4.4.2, cl 4.4.3(a), cl 4.4.3(b), cl 4.4.6, cl 4.4.6(d), cl 4.4.7(a), cl 4.15.6, cl 8.9.2, Sch 1, Table 1, Table 2 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1)
Case References:	Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] 122 LGERA 433
Orders	1. The application for review is dismissed. ,2. The refusal of the proposed development by the respondent is affirmed.
Summary	Yum Restaurants International applied to the Tribunal for a review of the refusal by the City of Rockingham of an application for a KFC outlet with a drive­through facility and dining area for 86 customers at 32 Patterson Road in the Rockingham Beach Waterfront Village Zone.  Yum Restaurants International said the proposed development should be approved with the drive­through facility because it addressed the relevant requirements of the City Town Planning Scheme and policies.  The proposed development was also considered to be consistent with the particular characteristics of the site and the amenity of the locality.,The Tribunal found that while a fast food outlet with dining or a restaurant with a takeaway service might be allowed the development proposed would be in conflict with the townscape and urban character objectives of the Rockingham Waterfront Village Policy.  The proposed drive­through facility did not minimise the number of vehicle accessways, it would not assist in achieving contiguous building frontage and it increased the potential for conflict between pedestrians and vehicles.  The Tribunal concluded that to allow the proposed development would not be consistent with the orderly and proper planning of the Waterfront Village Zone.,The application for review was dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : YUM RESTAURANTS INTERNATIONAL and CITY OF ROCKINGHAM [2008] WASAT 235
MEMBER : MR J JORDAN (MEMBER) HEARD : 8 JUNE 2008, FINAL SUBMISSION 10 JULY 2008 DELIVERED : 8 OCTOBER 2008 FILE NO/S : DR 77 of 2008 BETWEEN : YUM RESTAURANTS INTERNATIONAL

Applicant

AND

CITY OF ROCKINGHAM
Respondent

Catchwords:

Town planning - Development - Refusal - Building with 86 seat dining area, drive-through takeaway facility and on-site parking - Waterfront Village zone - Location at southern edge of zone - Rockingham Beach Waterfront Village Policy - Fast Food Outlets Policy - Easement for access and parking across front of site - Access leg to cul­de­sac at rear of site- Compulsory cash­in­lieu contribution for parking - Purpose of Precinct 2C Flinders Lane in Waterfront Village Policy -  Main street design to create village - Setbacks - Planning objectives - Land use in locality - Orderly and proper planning

(Page 2)

Legislation:

City of Rockingham Town Planning Scheme No 1 (Revoked)

City of Rockingham Town Planning Scheme No 2, cl 4.4, cl 4.4.1, cl 4.4.2, cl 4.4.3(a), cl 4.4.3(b), cl 4.4.6, cl 4.4.6(d), cl 4.4.7(a), cl 4.15.6, cl 8.9.2, Sch 1, Table 1, Table 2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)

Result:

The application for review is dismissed

The refusal of the proposed development by the respondent is affirmed

Category: B

Representation:

Counsel:

Applicant : Mr M Hardy
Respondent : Mr L Tsaknis

Solicitors:

Applicant : Hardy Bowen
Respondent : Woodhouse Legal

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] 122 LGERA 433


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Yum Restaurants International applied to the Tribunal for a review of the refusal by the City of Rockingham of an application for a KFC outlet with a drive­through facility and dining area for 86 customers at 32 Patterson Road in the Rockingham Beach Waterfront Village Zone. Yum Restaurants International said the proposed development should be approved with the drive­through facility because it addressed the relevant requirements of the City Town Planning Scheme and policies. The proposed development was also considered to be consistent with the particular characteristics of the site and the amenity of the locality.

2 The Tribunal found that while a fast food outlet with dining or a restaurant with a takeaway service might be allowed the development proposed would be in conflict with the townscape and urban character objectives of the Rockingham Waterfront Village Policy. The proposed drive­through facility did not minimise the number of vehicle accessways, it would not assist in achieving contiguous building frontage and it increased the potential for conflict between pedestrians and vehicles. The Tribunal concluded that to allow the proposed development would not be consistent with the orderly and proper planning of the Waterfront Village Zone.

3 The application for review was dismissed.

Introduction

4 These proceedings involve an application brought by Yum Restaurants International (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of a decision of the City of Rockingham (City, Council or respondent) on 26 February 2008 to refuse an application for approval of the development of a KFC outlet variously described as a restaurant by the applicant and as a fast food outlet by the respondent, at No 32 (Lot 6) Patterson Road, Rockingham (site).

Site and locality

5 The site is more fully described as Lot 6 on Diagram 90201 Certificate of Title Volume 2062 Folio 536. The site has an area of 2,693 square metres and a frontage of 29.58 metres to the southern side of Patterson Road. The site is generally rectangular but with an added access leg about 12 metres wide extending at an angle from the rear of the site

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alongside the rear of adjoining Lot 7 providing access to Benjamin Way, a cul­de­sac to the south-east. The site is burdened by a 19 metre wide easement across the Patterson Road frontage providing a right of carriageway and parking for neighbouring Lot 7. The easement continues eastward in front of Lot 7 for the same purpose benefiting the site. There is a second easement for the purposes of sewerage adjacent to the eastern boundary from the front of the site to Benjamin Way.

6 Patterson Road is a dual carriageway approximately 40 metres wide divided by a landscaped median. Access to Patterson Road from the site is across the neighbouring Lot 7 via the easement to a crossover with left in and left out turns because of the median strip.

7 Adjoining the site to the west is a motel comprising several buildings beyond which is a building on the corner of Thorpe Street formerly used as a KFC outlet. These lots have no easement at the Patterson Road frontage. Adjoining to the east on Lot 7 is an existing showroom development currently used by Cash Converters, next to which is a bowling alley and then a health and fitness studio on the corner of Read Street. There is a vehicle accessway and parking extending across the front of these buildings with the only exits to the street system being that in front of Lot 7 and a second access to Benjamin Way at the rear of the corner building. To the rear of the site, lots are developed for residential use. Lots fronting Benjamin Way are either commercial or open space. There is an existing showroom development on the site currently being used as a Ranger camping store. To the north across Patterson Road is a large oval beyond which are the main streets of the original Rockingham Beach Town Centre. At the eastern margin of the open space a new community centre is being constructed. At the western end is a public car park.

Planning framework

8 The site and surrounding area is zoned 'Urban' under the Metropolitan Region Scheme (MRS). The site is zoned 'Waterfront Village' under the City of Rockingham Town Planning Scheme No 2 (TPS 2), as are the properties to the east, west and north of the site. The land immediately abutting to the south is zoned 'Residential R40' and beyond is zoned 'Residential R20'. Fronting Benjamin Way is public open space and Commercial zoning.

9 The Council has adopted Planning Policy No 8.2 Rockingham Beach Waterfront Village (Waterfront Village Policy) which includes all land zoned 'Waterfront Village'. The site is therefore within the Waterfront Village Policy

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area.

10 Counsel for the two parties made submissions on which TPS 2 or the Council's planning policies was the fundamental instrument in considering the proposed development. The Tribunal would agree with the applicant that the starting point is TPS 2 which identifies whether the proposed use might be considered and what the objectives are for the zone in which the site is located. TPS 2 also sets out what is to be taken into consideration, including which policies, when determining a development application. The Tribunal respectfully adopts the approach to the policy set out by Barker J in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] 122 LGERA 433 (Clive Elliott Jennings) at [24]:

If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach.

11 As pointed out by Mr Hardy, for the applicant, however, cl 8.9.2 of TPS 2 provides that 'if a provision of a planning policy is inconsistent with the scheme, the scheme prevails'.

12 Schedule 1 - Interpretations of TPS 2 includes the following definitions:

Fast food outlet: means premises used for the preparation, sale and serving of food to customers in a form ready to be eaten without further preparation, primarily off the premises, but does not include a lunch bar.

Restaurant: means premises where the predominant use is the sale and consumption of food and drinks on the premises and where seating is provided for patrons, and includes a restaurant licensed under the Liquor Licensing Act 1988.

13 Table 1 - Zoning Table of TPS 2 shows both restaurants and fast food outlets as 'D' uses in the Waterfront Village Zone. 'D' means 'that the use is not permitted unless the local government has exercised its discretion by granting planning approval'. Clause 4.4.1 of TPS 2 states that the objective for the Waterfront Village Zone is:
(Page 6)

To contribute to the development of integrated tourist and recreation-related retail, District Centre retail, office, commercial, residential, civic and cultural facilities generally in accordance with the objectives and principles outlined in the Rockingham Beach Waterfront Village Policy and supported by any other Plan or Policy that the Council and the Commission may adopt from time to time as a guide to future development within the zone.

14 Clause 4.4.2 of TPS 2 is headed 'Waterfront Village Policy' and states:

(a) In considering applications for planning approval or otherwise planning for development within the Waterfront Village Zone, the Council shall ensure that the general arrangement of buildings, public spaces, pedestrian and vehicle movement systems, carparking and service areas and townscape elements has due regard to the Policy.

(b) The Policy incorporates both general and area specific policy statements. General policy statements include:-


(i) urban design and townscape; and

(ii) transport and parking.

15 Clause 4.4.3(a) of TPS 2 provides that the Council shall designate certain precincts within the Waterfront Village Zone and that cl 4.4.3(b) provides that Council shall consider the specific requirements detailed under 'Precinct Planning Policies' when considering any application for planning approval.

16 Clause 4.4.6 of TPS 2 is headed 'Urban Structure' and states that for the Waterfront Village Zone:

In assessing applications for planning approval, the Council shall take account of and shall ensure that the following principles are generally adhered to:-

(a) subject to the specific requirements of individual Precinct Planning Policies, development shall contribute to the framing up of a coherent structure of public streets defined by buildings and townscape in general conformity with the provisions of the policy;

(b) the development shall contribute to the establishment of a traffic­calmed, pedestrian friendly environment in both Rockingham Beach Road and Kent Street;

(c) traffic circulation, vehicle access points and car parking shall be arranged to minimise impact on the Waterfront Village Zone while maintaining essential kerbside parking consistent with the provisions of the Policy; and

(Page 7)

(d) as a general principle, car parking shall be clustered behind buildings which front the public street.

17 Clause 4.4.7(a) of TPS 2 provides that when assessing applications for planning approval, Council shall take into account 'the objective of the Waterfront Village Zone and the principles and policies set out in the Rockingham Beach Waterfront Village Policy'.

18 The Waterfront Village Policy, at cl 2.1, states:

The goal for the policy area is to achieve a social, economic and physical revitalisation of a regionally unique waterfront, consistent with its contemporary urban context within the Rockingham Strategic Regional Centre.

19 Objectives of the Waterfront Village Policy are set out at cl 2.2 and include:

To achieve a marked reduction in the negative impact of motor vehicles on the ambience and the continuity of the village environment.

To encourage private development to embrace a 'village feel' through the establishment of activated streets, more intimately scaled parkland and appropriately scaled and profiled buildings.

20 Under cl 3.2 of the Waterfront Village Policy is a general objective to limit traffic volumes and traffic speed within the policy area. At cl 3.2.3 the Waterfront Village Policy includes the statements:

To aid streetscape continuity and to limit the number of vehicle/pedestrian conflict points, Council will minimise the number of driveways along all street fronts within the policy area.

21 and

New development involving a drive-through component, typically associated with suburban situations, will not be permitted within the Waterfront Village Policy area. Establishments usually associated with such a facility will be encouraged to adopt a design approach which meets the Policy Area Townscape objectives.

22 The site is within Precinct 2C - Flinders Lane (Flinders Lane Precinct) - which is dealt with at Pt 4.3 of the Waterfront Village Policy. Clause 4.3.2 states:
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The desired future character of the precinct contains a mix of land uses that will result in a vibrant, diverse and multifunctional village.

23 Clause 4.3.3 of the Waterfront Village Policy states that the mix of preferred uses for Flinders Lane precinct may include retail, civic and community, arts and entertainment, leisure, office and commercial, residential, short-stay accommodation, eating and drinking places and recreation. Clause 4.3.4 outlines development requirements and includes:

(iii) Buildings must address the public streets with generally contiguous frontage which abut the road reserve boundary …

24 Clause 3.1.3(viii) of the Waterfront Village Policy sets out general townscape principles and includes:

As a general rule, commercial development in any precinct shall not be set back from the street and car parking areas shall be consolidated and located behind buildings which front the street.

25 Under the Flinders Lane precinct development requirements, cl 4.3.4(ix) of the Waterfront Village Policy states:

Car parking will not be permitted between the road reserve boundary and building frontages, unless provided for in an approved indicative development plan. All car parks must be contained within the blocks defined by generally contiguous street front buildings.

26 When the City considered the proposal it had an adopted Fast Food Policy prepared in 1991, last amended in 2003, which referred to the now revoked City of RockinghamTown Planning Scheme No 1. The City also had draft Planning Policy 3.3.9 ­ Fast Food Outlets (Fast Food Policy). The City adopted the Fast Food Policy in May 2008 and it became effective when public notification was given on 4 June 2008. Clause 4.3 of the Fast Food Policy deals with parking and access requirements and provides for parking to be in accordance with Appendix 1 of the Waterfront Village Policy. Clause 4.3 also states:

Consistent with Main Street design principles, drive-through facilities will not be supported in the City Centre and Waterfront Village zones and within the Main Street locations of the Baldivis Town Centre zone and the Secret Harbour Town Centre.

Proposed development

27 By agreement between the parties the proposed development before the Tribunal for consideration was that shown in plans DA01 - DA08 provided to the City on 9 May 2008. It is proposed that the existing building on the site

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be demolished. There would then be developed a building set back 19.5 metres to 20 metres from Patterson Road because of the easement. This building would be used as a KFC outlet with seating for 60 dine­in customers inside the building and 26 at the front of the building. A 6.6 metre wide vehicle accessway would be adjacent to the eastern boundary, extending from the front to the rear of the site. There would be a drive­through lane with ordering and pick up stations between the building and the western boundary with cars entering from the rear and exiting at the front. A total of 31 car parking bays would be provided. Twelve bays and one disabled bay would be in the easement in front of the building, aligned perpendicular to the accessway. Eight bays would be perpendicular to the eastern side accessway and 10 bays would be adjacent to the rear boundary. There would be capacity for an additional seven angled parking bays in the access leg which is shown as being one way, providing a vehicular exit to Benjamin Way. The application sketches also show various signs, including a 6 metre high pylon sign adjacent to the Patterson Road boundary.

28 Both parties pointed out that there had been ongoing discussion of various development proposals with officers of the City making comments on design variations. Earlier versions of the development were refused by the Council on 27 November 2007. Subsequent plans lodged on 30 November 2007 and refused by Council in February 2008 showed the development now proposed but at the Patterson Road frontage with the drive­through exit directly onto Patterson Road. These plans were amended when it was identified that the easement required the building to be set back about 19.5 metres.

Council's decision

29 Council refused the application on 26 February 2008 for the following reasons.

1. The proposal does not comply with the development requirements of Council's Planning Policy No 8.2 ­ Rockingham Beach Waterfront Village in relation to the following clauses:­

(i) Clause 3.2.3 ­ 'New development involving drive-through component, typically associated with suburban locations, is not permitted within the Waterfront Village Policy area;

(ii) Clause 3.2.3 ­ Council will minimise the number of driveways along all street fronts within the policy area[;]

(iii) Clause 4.3.4(iii) states 'Building must address the public streets with generally contiguous frontage which abut the

(Page 10)

road reserves boundary, subject to minor variations at building entries, unless otherwise provided for in an approved Indicative Development Plan. Council is prepared to consider minor setback variations in May, Harrison and Thorpe Street region and the northern side of Kent Street, Flinders Lane and Wanliss Street to a maximum of 3 metres; and

2. In the above regard, the proposed development does not satisfy the desired urban character, urban design and townscape objectives that are clearly set out in Council's Planning Policy No 8.2 which should be read in conjunction with [TPS 2].

Issues

30 From the statements of the respondent and the applicant, the Tribunal has identified the following issues, in which there is some degree of overlap, for consideration:

1) Whether the proposed development should be allowed having regard to the statutory and policy planning framework;

2) Whether the proposed development should be allowed having regard to the features of the use and design;

3) Whether the proposed development should be allowed having regard to the nature of the site and the use of the land in the locality of the proposed development; and

4) Whether the proposed development should be allowed having regard to the application of the principles of orderly and proper planning.

Whether the proposed development should be allowed having regard to the statutory and policy planning framework

31 The planning experts disagreed on whether the proposed development should be classified as a fast food outlet or as a restaurant. It was the evidence of Mr Bain, a town planner called as a witness by the applicant, that an estimated 15% of the trade of the proposed development would be dine­in consumption of food, 55% would be customers ordering and taking food from the drive­through facility and 30% would be orders collected at the counter for eating elsewhere by people who either walked or drove to the premises. Mr Bain said that the use should be classified as a restaurant with a drive­through facility. In his opinion providing 120 square metres of floor space for

(Page 11)

seating 60 diners inside and 26 outside was consistent with the definition of a restaurant.

32 Mr Tsaknis, counsel for the respondent, said that as 85% of food would be takeaway, the definition of a fast food outlet is applicable. Ms Tamara Roots­Vreeken, a town planner from the City, called as a witness by the respondent, considered the use to be a fast food outlet and assessed it as such. She said this classification is supported by the inclusion of the drive­through facility and that considering the use as a fast food outlet did not exclude providing seating for some dine-in patrons.

33 Counsel for the parties did not cite authorities for their respective positions. They relied on what they considered to be the logical interpretation of the evidence and the design of the proposed development.

34 One method of determining whether a development is within a particular definition is to have regard to the effect it has on the amenity or character of the locality, rather than what proportion of the income is generated by which particular aspect of the business. It might be that a takeaway would have little or no dine-in capacity and would therefore have the effect of greater traffic movement but little requirement for vehicles to remain on site for an extended period. A restaurant might need to accommodate vehicles to remain on site for an extended time but need not have the constant flow of vehicles.

35 In this instance the development includes a drive­through facility. It is a matter of fact and degree when the use might pass from being a fast food outlet with a drive­through facility and some dining capacity to being a restaurant with a drive­through facility and a takeaway service. The Tribunal has formed the view that this use is the latter. This is because 86 dining spaces are provided and because of the potential contribution the use will make to the local character by diner parking, outdoor seating, a glass front and interchange between diners inside and outside and the street.

36 If the Tribunal is wrong in concluding that the proposed use is a restaurant with a drive­through and takeaway facilities, it is not critical to the determination of the matter. Both a restaurant and a fast food outlet are 'D' uses in the Waterfront Village Zone and so are allowed subject to the exercise of discretion. If the proposed development were to be allowed, the required parking might be different depending on how the use is classified. Under TPS 2, however,

(Page 12)

this would not be to the extent that would result in a very different planning outcome in the way the use impacted on the Waterfront Village Policy area.

37 The site is within the Flinders Lane precinct of the Waterfront Village Policy area within which eating and drinking places are among the list of preferred uses. A restaurant fits this category. A fast food outlet might also be consistent with the stated objective of encouraging an activated village feel because it would attract people on foot and be complementary to preferred uses such as short­stay accommodation, drinking and recreation venues and outdoor activity in the different types of open space to be developed in the Waterfront Village Policy area.

38 The Tribunal has concluded that, in general terms, a use which includes dine­in and takeaway facilities might be allowed as consistent with the preferred uses of the Flinders Lane precinct. Whether the proposed development with its drive­through facility might be allowed, however, is dependent upon whether the combination of the particular features proposed are together consistent with achieving the planning objectives of the statutory and policy planning framework.

Whether the proposed development should be allowed having regard to the features of the use and design

Drive­through facility

39 The drive­through facility is an integral part of the proposal, whether it is a fast food outlet or a restaurant. Critical to the determination of this matter is whether or not the drive­through facility might be allowed as either consistent with the objectives of the statutory and policy instruments or as an exception to those instruments.

40 Clause 3.2.3 of the Waterfront Village Policy states that for the Waterfront Village Policy area 'new development involving a drive­through component, typically associated with suburban situations, will not be permitted'. Clause 4.3 of the Fast Food Policy also states that 'consistent with Main Street design principles, drive­through facilities will not be supported' in the Waterfront Village Zone.

41 As correctly stated by the applicant, a policy cannot fetter the proper exercise of discretion. The Tribunal has accepted, however, that the starting point for new development in the Waterfront Village Zone is that a development without a drive­through facility is preferred. Mr Malcolm McKay, an urban designer called as a witness by the

(Page 13)

respondent, was of the opinion that drive­through facilities were undesirable elements within a pedestrian-friendly 'village' area because they increase the frequency of vehicles using crossovers and support car use in favour of pedestrian activity. In most instances, a drive­through facility requires at the road frontage either a vehicle entry or exit point additional to any other vehicle crossover to parking or service areas at the rear of a site. This would be in conflict with the objective to minimise vehicle and pedestrian conflict found at cl 2.2 of the Waterfront Village Policy.

42 The concept of a vibrant, diverse and multifunctional village was difficult for the experts to succinctly articulate, but common to their comments was that there would be interaction between people in an environment not dominated by vehicle movements. A drive­through facility that directs traffic across spaces used by pedestrians, which in this instance is the easement used by vehicles and for pedestrian access to the building, does not appear to the Tribunal to fit this concept.

43 A drive­through facility is also a consideration in respect of the village townscape objective at cl 4.3.4(iii) of the Waterfront Village Policy which requires development to address the public street with generally contiguous buildings which abut the footpath. Contiguous is not defined in the Waterfront Village Policy and there was considerable discussion between the experts on what was required for contiguous frontage. Mr Bain said that there would be a contiguous frontage if there was a uniform setback for buildings, whether at the front boundary or at some other building line such as the line of the easement. The Tribunal prefers Mr McKay's position. He considered that for the village concept of the Waterfront Village Policy, contiguous frontage requires buildings to be developed from side boundary to side boundary. This is consistent with the definition in the Macquarie Dictionary (Fourth Edition, 2005) which states:

Contiguous ... 1. touching; in contact. 2. in close proximity without actually touching; near. ...

44 Mr McKay acknowledged that it might be necessary on certain lots to provide a crossover and vehicle access to rear parking spaces. His ideal would be that accessways would have building above at the setback so that there was no complete break from the building on the adjoining lot.

45 It was the applicant's submission that for the site the main street design objectives cannot be achieved in any event so the rationale for supporting the prohibition against the drive­through facility starts to dilute to the point where

(Page 14)

it disappears. Mr Bain pointed out that the drive­through exits to the easement and no additional crossovers to Patterson Road were proposed. He said the design approach taken was to ensure that the building did not appear as a 'typical' KFC suburban store by the use of contemporary design which included prominent dining areas at the front. The motel is set back from the boundary but Mr Bain emphasised the proposed development included canopies over the ordering and pick up stations of the drive­through facility that extended to the boundary.

46 The Tribunal has formed the view that the proposed drive­through facility cannot be supported. The drive­through facility is three metres wide with a 900 millimetre wide landscaping strip. The canopies over the pick­up and ordering windows are set back 14 metres from the façade. On the eastern side of the building is a 6.6 metre wide driveway and 900 millimetre landscape strip which provides vehicular access from the easement at the front of the site to the drive­through entry, rear parking area and access leg. Having vehicle driveways both sides prevents the building being contiguous with adjoining sites now and in the future. Although the development to the west, the motel, is not now contiguous, the Tribunal considers that regard must be had to the desired character to be achieved by future development on the neighbouring lots consistent with the Waterfront Village Policy objectives. The drive­through facility will result in the proposed development appearing to be a stand­alone building set back from all boundaries of the site. In addition, the vehicles exiting from the drive­through facility are required to turn right and come into conflict with pedestrians entering the front of the building from Patterson Road footpath or the front car park. As there is a rear access leg it is arguable that there need not be a vehicle accessway between the front of the site and the rear although this is not certain depending on the final form of an acceptable development on the site.

Setback

47 Clause 4.3.4(iii) and cl 4.3.4(ix) of the Waterfront Village Policy set out development requirements which include generally contiguous buildings which abut the road reserve boundary. Clause 3.3.3(xiii) and cl 4.3.4(ix) of the Waterfront Village Policy and cl 4.4.6(d) of TPS 2 refer to parking being at the rear of buildings.

48 Ms Roots­Vreeken argued that because the development was set back 19 metres from Patterson Road and had parking and access between it and the road reserve, it was in conflict with the Waterfront Village Policy. Counsel for

(Page 15)

the respondent submitted that the easement was an agreement between private landowners and so was irrelevant to the application of the Waterfront Village Policy. Mr Tsaknis also pointed out that there had been no application to the City to delete the easement.

49 There was an absence of evidence before the Tribunal on how the easement came to be in place. The witnesses made suggestions and the Tribunal believes it to be a reasonable assumption that the easement and reciprocal rights of carriageway between the site and lots to the east was created as a condition of development approval. Such a requirement has in the past been common in Perth as a planning solution to removing local traffic and parking from major carriageways and to providing a common crossover to the major carriageway, as exists in this instance. While this is speculation, the pattern of development that includes the site has these features as well as each site having rear vehicular access off Benjamin Way.

50 The Tribunal noted that in the recitals of the deed of agreement for the easement, it states 'grantor and grantee have agreed to create the rights hereinafter created and have agreed with the Municipality not to surrender the same'. It would appear that all landowners that receive a benefit of the easement and the respondent would need to cooperate before consideration can be given to deleting the easement.

51 Ms Roots-Vreeken was asked if the City had given consideration to allowing Patterson Road to be used for verge parking and direct access to sites. She said that a review under way of the whole Rockingham strategic regional centre extending from the main town centre to the Waterfront Village had not reached a stage where such matters were under consideration. Mr McKay described Patterson Road as the entrance statement to the Waterfront Village Zone. It was a road that identified that a person had arrived.

52 There was insufficient evidence before the Tribunal to form a conclusion that ultimately the easement would be deleted and Patterson Road would include direct access to sites and kerbside parking consistent with other streets in the Waterfront Village Zone. On the face of it, providing kerbside parking would appear to contradict the identification of the dual carriageway as an entry statement and ignore its proximity to the nearby regional roads at and to the east of the intersection of Patterson Road with Read Street. The Tribunal does not consider, however, that all development in this locality should cease for an indeterminate period until the City has resolved what the future role of

(Page 16)

Patterson Road is to be in the Waterfront Village Zone.

53 The parties did not make submission on the point but the Tribunal would comment that the access easement has some characteristics of the frontage roads elsewhere in the zone in that it is used by pedestrian terraces for access, has local vehicle movement and space for parking along the margins. The applicant, with each design proposal, has also always proposed the minimum setback possible initially from Patterson Road and now from easement. The Tribunal notes, however, that the proposed development would take advantage of the easement to provide almost maximum parking perpendicular to the access way between the building and Patterson Road. The easement is also said to provide a basis for ignoring the objectives of the Waterfront Village Zone and Policy of having contiguous development, minimal vehicle access points and pedestrian-vehicle conflict. The Tribunal considers that a design solution consistent with the objectives of the Waterfront Village Zone and the Waterfront Village Policy can be achieved notwithstanding that the proposed development and any future development of the lots to the east would be set back at the edge of the easement. The need for the development to be set back because of the easement is not considered by the Tribunal to be a reason in itself for refusing the application.

Parking

54 The proposed development has a net lettable area of 289.3 square metres and would have dining seating for 86 persons. Table 2 of TPS 2 sets out parking requirements for various uses, including fast food outlets and restaurants. At the foot of Table 2 it states that for the Waterfront Village Zone refer to Table 4 for parking requirements. It was common ground that Table 4 has been deleted from TPS 2 and at the same time there was inserted cl 4.4.9 which reads:

Notwithstanding the provisions of clause 4.15.1 and the standards set out in Table No.2, the Waterfront Village Zone is subject to special provisions for recommended car parking contained within the Waterfront Village Policy. Table No. 4 sets out the recommended car parking standards and maximum car parking allowances within the Waterfront Village Zone.

55 Clause 3.2.6 of the Waterfront Village Policy is concerned with car parking. Included is the following paragraph:

The Study also arrived at parking ratios for new development proposals that, in all cases involve an element of cash­in­lieu. The cash­in­lieu funds received through these processes will be used by the Council in providing/maintaining public parking facilities in

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the Rockingham Beach area.

56 The parking ratios are set out in Appendix 1 of the Waterfront Village Policy as follows:

Fast Food Outlet	On­site	Cash­in­lieu	Total
Minimum	Zero	1 bay/22 m2	1 bay/14 m2
Maximum	1 bay/22 m2	1 bay/14 m2	1 bay/11 m2

Café/Restaurant	On­site	Cash­in­lieu	Total
Minimum	Zero	1 bay/12 seats	1 bay/8 seats
Maximum	1 bay/12 seats	1 bay/8 seats	1 bay/6 seats

57 Ms Roots­Vreeken calculated that for the fast food outlet the minimum number of bays required was 20.66 and the maximum 26.3. The minimum number of on­site bays was zero while the maximum was 13.15. The minimum cash­in­lieu contribution would be 13.15 bays.

58 For a restaurant, Ms Roots­Vreeken calculated a minimum car parking requirement of 10.7 bays and a maximum of 14.33 bays. The minimum requirement for on­site bays was zero and the maximum 7.16 bays with a minimum cash­in­lieu requirement of 7.16 bays.

59 The respondent referred to the express requirement of the Waterfront Village Policy that there be a mixture of on­site and cash­in­lieu bays. Mr McKay explained that this requirement assisted in reducing the area of each site given over to car parking and facilitated development of common parking stations from which people would walk to destinations assisting in the creation of the village atmosphere. Mr McKay said that an important part of the village atmosphere was retaining kerbside parking to provide some immediate convenience and vibrancy at minimal disruption to pedestrian traffic.

60 Clause 4.3 of the Fast Food Policy provides that the 10 parking bays accommodated within the drive­through facility can be included in the car parking allocation up to a maximum of 50% of the requirement. Mr McKay and Ms Roots­Vreeken said this can only be subtracted from the number of bays provided on­site not from the

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cash­in­lieu requirement. Mr Bain argued that the reduction should be from the total number of bays required. The Tribunal would comment that in the Waterfront Village Policy the requirement is for a certain number of bays, some on­site and some to be provided nearby by the City on the payment of cash­in­lieu. The provision of the drive­through facility does not necessarily lessen the space required for cars. It is simply that some cars can be accommodated in what essentially are very short­term parking bays in the access way of the drive­through facility. The Tribunal is therefore inclined to the City's interpretation that a number of on­site bays required is calculated and those in the drive­through facility can be included in the total up to 50% of the on­site bays required.

61 The Tribunal does, however, have difficulty with the use of a policy to impose on an individual site a compulsory requirement for the payment of money. The Tribunal considers that the payment of money, if not directly attributable to the approved development should be the subject of an express provision in a planning scheme. The Tribunal is inclined to Mr Hardy's interpretation that an offer of cash­in­lieu is normally made by an applicant to overcome difficulties where parking can not be provided on a site or a proposed development includes floor space at the expense of sufficient area for the number of bays required. Clause 4.15.6 of TPS 2 commences:

The Council may agree to accept a cash payment in lieu of the provision of car parking. ...

62 Clause 3.2.6 of the Waterfront Village Policy sets the standard cash­in­lieu rate as $19,000 as at 2006 indexed annually in accordance the Perth Building Price Index within Rawlinson's Australian Construction Handbook. TPS 2 provides, at cl 4.15.6(a), that the cash­in­lieu payment would be not less than the estimated cost to the owner of constructing the parking bays plus the value as estimated by a sworn valuer of the area of land required to be occupied by the parking spaces and manoeuvring area. The method in TPS 2 seems a fairer method of determining the value of a cash­in­lieu contribution because of the input of both parties and it has also been a subject of scrutiny and gazettal as part of TPS 2, a statutory document.

63 The applicant can provide the required number of parking bays on site and the Tribunal considers that the developer should be allowed to provide these if it so chooses. The Tribunal also considers that no more than the required number of bays can be provided so that no more of the site than is necessary is given over to car parking

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and private lots do not become de facto parking lots for vehicles generated off site.

64 The Tribunal has found that, subject to appropriate conditions on location and configuration, including that no more than the equivalent of kerbside parking be located at the front of the site, the necessary parking could be provided on­site and that failure to provide a cash­in­lieu contribution is not a basis for refusing the application.

Whether the proposed development should be allowed having regard to the nature of the site and the use of the land in the locality of the proposed development

65 The applicant highlighted that the site and the neighbouring lots at the southern edge of the Waterfront Village Policy area were not included in the detailed layout of the Indicative Development Plan which included most of the Flinders Lane precinct at Appendix 3 of the Waterfront Village Policy. The site and neighbouring lots south of Patterson Road simply showed the existing building outlines of the base plan and the label 'Mixed Business'.

66 Mr Bain said the neighbouring uses, including the motel, were vehicle orientated and required on­site parking and larger floor areas than usually economic in a village centre. This type of use was an essential part of the mix of uses needed for a centre and were ideally located at southern edge near to the regional roads.

67 Mr Bain, as discussed above, said the existence of the easement prevented the building being at the front boundary, as the applicant had sought in an earlier design. The development would still be at a consistent building line with development to the east, but could not align with development to the west because those lots had no easement. As referred to above the applicant made the submission that because of the easement there would be no additional crossovers to Patterson Road and the drive­through facility would not cross a public footpath.

68 Relevant also to this issue are the comments made by the parties on contiguous development and the side boundary set back of the motel to the west. The applicant considered the proposed development to be compatible with the neighbouring uses and appropriately designed to accommodate the characteristics of the site without detracting from the objectives of the Waterfront Village Policy.

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69 The Tribunal has found, as set out above that setback need not be an issue but that contiguous development was a significant issue. Also addressed above are the concerns by the Tribunal about the additional access way and directing drive­through traffic into the easement which must be used by pedestrians to gain access.

70 The Tribunal acknowledges that in certain circumstances strict adherence to policy might be undesirable or unreasonable. It is also acknowledged, as stated in Clive Elliot Jennings, that the relevant consideration is why the policy should not be applied. The Tribunal formed the view that the nature of the site and use of land in the locality are not sufficient to render inapplicable the development guidelines and standards in the statutory and policy instruments. The site is the first to be considered for redevelopment in this section of the policy area south of Patterson Road. The development guidelines are in place and can, in significant part, address the redevelopment of the site. The Tribunal has formed the view that the policy objectives remain relevant even though the site is at the margins of the Waterfront Village Policy area and amenity of the locality. The development criteria to achieve the objectives should not be completely set to one side because of the nature of the site and the use of other lots in the locality.

Whether the proposed development should be allowed having regard to the application of the principles of orderly and proper planning

71 The applicant referred to cl 3.1.3(vii) in the Waterfront Village Policy objectives which, in the context of urban design principles to guide precinct planning, states:

To assist with the framing up of a more legible village townscape, precinct planning will promote greater structure of definition of streets and other public spaces. Where a more intensively developed precinct character is desirable, this means ensuring that buildings are arranged in a generally contiguous fashion along street alignments and constructed in a manner that encourages a relationship with street and other public spaces.

72 The applicant highlighted 'where a more intensively developed precinct character is desirable'. Counsel, for the applicant, pointed out the impact of the easement requiring the building to be set back and that in the Indicative Development Plan at Appendix 3 of the Waterfront Village Policy more intensive development is at the northern end of the policy area. Rockingham Beach Road, Kent Street and Flinders Lane are singled out with more detailed design guidelines as having more dense development and being pedestrian­friendly. Closer to Patterson Road heights reduce,
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as illustrated on the Building Height Model at Appendix 2 to the Waterfront Village Policy. The applicant highlighted the site as being opposite a considerable amount of public open space, as having a relatively lower level of proposed development density and as having no detailed design guidelines which would constrain use. Mr Bain said this is an area within which edge definition may be achieved by appropriate avenues for planting along key entry corridors and this is happening in Patterson Road.

73 The applicant's submission was that there are obvious difficulties with the objectives of implementing what are understood to be Main Street principles with respect to developments south of Patterson Road. The applicant said that in the circumstances of this case, the setbacks and alignments preferred by TPS 2 and the Waterfront Village Policy cannot be achieved in any event.

74 The Tribunal acknowledges that Kent Street and Flinders Lane are at the heart of the Waterfront Village Zone and that the indicative development plan and policy documents do not provide prescriptive design guidelines for the locality south of Patterson Road. The Tribunal does not accept, however, that the rationale for supporting the policy objectives, particularly in respect of drive­through facilities is diluted to the point where it disappears when specifically applied to the site. If the zone and policy objectives and standards were not to be applied then the location of the site and neighbouring lots within the Waterfront Village Zone and Waterfront Village Policy area would serve no planning purpose.

75 The purpose of the Waterfront Village Policy is to influence development in the Waterfront Village Zone so that the desired future character as expressed in the Waterfront Village Policy is achieved. The Tribunal does not consider that this is a case where application of the policy would be unreasonable or undesirable. There were no proposals identified for the redevelopment of the lots east and west of the site between Read Street and Ray Street. The Tribunal does not believe that this leads to a conclusion that standards common with the neighbours rather than the City's policies should be applied. The policy standards should be applied to the very edge of the Waterfront Village Policy area to achieve the objectives of the Waterfront Village Zone and Waterfront Village Policy. There is not anything about this site, other than the easement which affects front setback, that prevents standards being imposed now on any redevelopment that would further the achievement of the stated objectives of the zone and policies.

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76 The proposed development is considered by the Tribunal to not sufficiently address the planning objectives for the Waterfront Village Zone and the Waterfront Village Policy area. The proposed development is not considered by the Tribunal to be consistent with orderly and proper planning.

Conclusion

77 In considering the first issue, which was whether the proposed development should be allowed having regarded to the statutory and policy planning framework, the Tribunal looked at the broader question of whether the type of use proposed might be allowed in the Waterfront Village Zone. The parties differed on whether the use was a restaurant or a fast food outlet, as defined under TPS 2. Although some 85% of the business would be takeaway food there would be seats for 60 diners inside behind the glass facade of the building and 26 diners outside at the front. The Tribunal adopted the approach, in this instance, of characterising the use, not by the main source of income, but having regard to the effect of the use on the local amenity and character. The Tribunal considered, on balance, that the use would be a restaurant, with a fast food service, because of the clear interaction between the street and the diners who remain on the premises and the impact from their cars remaining parked while they dine.

78 Ultimately, however, even if the Tribunal was wrong, whether or not the development be allowed did not turn on this characterisation of the use. Both uses are 'D' uses in the Waterfront Village Zone and, in a general sense, were considered appropriate for the Flinders Lane precinct. Critical to the determination of the matter were the particular features of the proposed development.

79 In considering the second issue, the Tribunal looked at whether proposed development might be allowed having regard to the inclusion of a drive­through facility, the proposed front set­back and the parking arrangements.

80 The proposed drive­through facility would extend from the rear to the front of the building and exit into the easement at the front. Drive­through facilities are not prohibited in the zone but the Waterfront Village Policy and the Fast Food Policy both express a preference that such a facility not be included in a development. The Tribunal formed the view the proposed drive­through facility could not be supported because it would be in conflict with the expressed planning objectives of the Waterfront Village Zone and the Waterfront Village Policy area which include

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minimising vehicle crossover points, minimising vehicle and pedestrian conflict and facilitating the future development of buildings with contiguous frontages.

81 The front setback of the proposed development was objected to by the respondent. The Waterfront Village Policy expresses a clear preference for buildings to be at the front of the boundary with on­site parking at the rear and with kerbside parking to encourage the desired village atmosphere. The building would be set­back 19.5 metres from the Patterson Road frontage because of the 19.5 metre wide easement. There would be the vehicle access way and parking across the front of the site and extending in front of the buildings to the east.

82 There are no plans by the respondent to change Patterson Road from a vegetated dual carriage way entry statement for the waterfront village with no kerbside parking and minimal crossovers from fronting lots. For the easement to be removed from the site there is required to be an agreement between the adjoining land owners and the City, which was included in the deed. There was no evidence of when or even if this was likely or even if it was desirable given the existing function of Patterson Road and the proximity of the site to the intersection of two regional roads.

83 The Tribunal formed the view that the easement across the site, if it had parallel parking, might exhibit some characteristics of a local road. If there were no change in the role of Patterson Road then it might be contemplated that development fronting the easement might achieve some of the characteristics desired by the Waterfront Village Policy. The setback of the easement was not of itself considered to be fatal to the proposal if the site and the lots to the east addressed the development requirements of the Waterfront Village Policy at the setback line. The Tribunal does not consider that all development in the locality should cease for some unknown period. If the respondent resolved its position on the role of Patterson Road in the immediate future then a different approach might be required.

84 Parking requirements for the proposal were discussed at length by the witnesses. The Tribunal considers that the proposed development is more appropriately characterised as a restaurant with the related parking requirements. TPS 2 provided that the parking requirements of the Waterfront Village Policy be applied. The Tribunal considered that no more than the maximum number of bays should be provided to contain site area given to parking. The Tribunal did not accept, however, the Waterfront Village Policy requirement that a cash­in­lieu contribution was

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compulsory, in conflict with the TPS 2 requirement that cash­in­lieu be an offer from the applicant.

85 The Tribunal concluded that the applicant choosing to provide parking on the site, if appropriately located, rather than make a cash­in­lieu contribution was not of itself a basis for refusing the development.

86 The third issue was whether the proposed development should be allowed having regarded to the nature of the site and use of the land in the locality of the proposed development. In certain circumstances strict adherence to policy might be undesirable or unreasonable. The applicant considers that the policy requirements should not be imposed in the circumstances of this development having regarded to the location of the site at the southern margin of the Waterfront Village Zone, the presence of the easement of the front of the site, the effect of the easement on the development to the east and the car orientated nature of the neighbouring uses to the west.

87 The Tribunal considers that the purpose of identifying a policy area and adopting a policy is not the maintenance of the status quo. It would not be consistent with planning principles to deny the scope and purpose of the policy objectives. The Tribunal has formed the view that the policy objectives remain relevant even though the site is the first to be considered for redevelopment at this margin of the Waterfront Village Policy area. The development standards are in place and will cumulatively influence the character and amenity of the locality. The development criteria should not, therefore, be set to one side. The Tribunal has formed the view that the nature of the site and use of land in the locality is not sufficient to render inapplicable the development guidelines and standards in the statutory and policy instruments.

88 The final issue was whether the proposed development should be allowed having regard to the application of the principles of orderly and proper planning. The applicant said the site was not included in the area identified for more intensive development in the Waterfront Village Policy area and would be consistent with the existing character which was influenced by the nature of the site and neighbouring development.

89 The Tribunal noted that there were no prescriptive guidelines south of Patterson Road other than there being a potential for mixed use development with up to a four storey height limit, but considered this did not prevent

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application of the development guidelines in the statutory instruments. If the zone and policy objectives and standards were not to be applied then including the site and neighbouring lots within the Waterfront Village Zone would serve no planning purpose. The proposed development might be consistent with the existing development to the west, but it would not advance realisation of the objectives set out in the planning instruments. The proposed development is not directed to sufficiently addressing these objectives and so was not considered by the Tribunal to be consistent with orderly and proper planning.

90 One further issue was the 6 metre high pylon sign at the front of the site. Mr McKay said large signs were required for drivers rather than pedestrians and so were not conducive to a pedestrian village feel. The Tribunal is of the view that while the easement remains the pylon sign can be allowed as a means of easily identifying the location and the use.

91 In summary, the Tribunal has found that the proposed development does not sufficiently acknowledge that the site is within a zone in which the objective is to create a village atmosphere. The proposed use presents as a stand­alone restaurant set back from the side boundaries with a drive­through facility in conflict with the planning objectives of the Waterfront Village Zone and the Waterfront Village Policy.

92 The Tribunal has therefore decided to dismiss the application and affirm the refusal of the Council.

Determination

93 The orders of the Tribunal are:

1. The application for review is dismissed.

2. The refusal of the proposed development by the respondent is affirmed.

I certify that this and the preceding [93] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR J JORDAN, MEMBER