JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION : DCSC PTY LTD and PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL [2017] WASAT 114
MEMBER : MS N OWEN-CONWAY (MEMBER)
MR J JORDAN (SENIOR SESSIONAL MEMBER)
HEARD : 1 AND 2 FEBRUARY 2017
DELIVERED : 23 AUGUST 2017
FILE NO/S : DR 475 of 2015
BETWEEN : DCSC PTY LTD
Applicant
AND
PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
Catchwords:
Planning development application - Retail sale of petrol and convenience goods - Land use classification - Convenience store - Traffic safety and convenience - Pedestrian traffic safety and convenience - Amenity, noise, gas and odour - Risk - Licence to be issued and applied for pursuant to the Dangerous Goods Safety Act 2004 and Dangerous Goods Safety (Storage and Handling of Nonexplosives) Regulations 2007 - Requirements of risk assessment and continuous risk assessment - Whether works associated with use permitted by Local Planning Scheme can be refused - Exercise of discretion where proposed use classification is permitted - Zoning Table in Local Planning Scheme and clauses related thereto - Adopted planning policies, guidelines and strategies imposing controls on development - Consideration and due regard given to all relevant deemed provisions in Local Planning Scheme when determining a development application - Approval granted on condition - Turns on own facts
Legislation:
City of Busselton Local Planning Scheme No 21, cl 1.5, cl 1.6, cl 1.6(c)(iii), cl 1.7.1, cl 1.7.1(a), cl 1.7.3, cl 2, cl 4.1.1, cl 4.1.2, cl 4.2, cl 4.2.2, , cl 4.3, cl 4.3.1, cl 4.3.2, cl 4.3.5, cl 4.3.5(d), cl 4.4.1, cl 5.19 cl 5.23, cl 7.5, cl 9.1, Pt 4, Sch 1
Dangerous Goods Safety (Storage and Handling of Nonexplosives) Regulations 2007 (WA), reg 4, reg 26, reg 48(2), regs 51 - 67, reg 121, Div 2
Dangerous Goods Safety Act 2004 (WA), s 4
Environmental Protection (Noise) Regulations 1997 (WA)
Interpretation Act 1984 (WA), s 31(2), s 32(2), s 43(1)
Planning and Develolpment (Local Planning Schemes) Regulations 2015 (WA), reg, 2, reg 10, Sch 2, cl 1, cl 43(2), cl 60, cl 63, cl 67, Pt 5, Pt 8
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 6, reg 7, reg 18, reg 18(2)
Planning and Development Act 2005 (WA), s 4, s 7, s 69, s 72, s 87, s 87(4), s 171A(2)(ba), s 252(1), s 256, s 257A, s 257B, Pt 14, Sch 7, cl 6
State Administrative Tribunal Act 2004 (WA), s 3, s 17(1), s 17(3), s 27(1), s 27(2), s 27(3), s 29(1), s 29(3), s 31(1), s 31(2), s 37(3)
Result:
Decision of Southern Joint Development Panel made 14 December 2015 and affirmed on 14 November 2016 is set aside
Application for development approval granted subject to specific conditions
Summary of Tribunal's decision:
The applicant sought approval for the development of land within the Business Zone as identified by the map and legend of the City of Busselton Local Planning Scheme No 21, for the use as a Convenience Store at which the applicant intended to sell petrol to the public. The Tribunal had determined the preliminary issue concerning the correct use classification of the applicant's application for development approval and determined that it was correctly classified as a 'Convenience Store' as defined by the Local Planning Scheme No 21. The Southern Joint Development Assessment Panel received revised plans in support of the applicant's application for development approval and pursuant to a Tribunal order to reconsider the application for development approval, again refused the application.
The Tribunal concluded that the permitted use classification, Convenience Store, as identified in the Zoning Table of the Local Planning Scheme No 21 determined that the use classification was suitable for the land in issue and that the use classification satisfied the Business Zone objectives and policies. The permitted use classification implied that obvious and necessary modifications to the land to conduct the use were permitted. In any event the application for development approval was required to be considered and approved with respect to all other requirements of the Scheme which encompassed the method of operation of the proposed development and the specific details concerning the works that were required on the Land. It was open to the Southern Joint Development Assessment Panel to consider the position, orientation, number, scale, design and bulk of the modifications on the land as well as the manner of operation of the business proposed to be conducted by the applicant when considering whether or not to grant approval or to refuse the application or to impose conditions on any approval granted.
The Tribunal concluded, after having given consideration to all matters raised by both parties and in particular, cl 67 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, that the applicant's application for development approval should be granted subject specified to conditions.
Category: B
Representation:
Counsel:
Applicant : Mr M Hotchkin and Mr P Dobson
Respondent : Mr T C Russell and Mr J M Misso
Solicitors:
Applicant : Hotchkin Hanly
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
36 Chester Avenue Pty Ltd and City of Stirling [2012] WASAT 198
DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Parkes v Environment Secretary (1978) 1 WLR 1308
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Puma Energy Australia and City of Cockburn [2016] WASAT 36
St Patrick's Community Support Centre and City Of Fremantle [2007] WASAT 318
University of Western Australia v City of Subiaco and Anor [1980] WASC 28
REASONS FOR DECISION OF THE TRIBUNAL:
The application
1 On 24 December 2015, DCSC Pty Ltd (applicant) filed in the Tribunal an application for review of the decision by the Southern Joint Development Assessment Panel (SJDAP), made on 14 December 2015, to refuse the applicant's development approval application reference number DAP/15/00888 (DA). The decision to determine the applicant's DA by refusal of the same is hereafter referred to as the SJDAP decision. The applicant's DA expressly provides that it sought approval to develop and use the land situated at Lot 108 (57) Dunn Bay Road in Dunsborough (Land) as a 'Convenience Store' as defined by the City of Busselton Local Planning Scheme No 21 (LPS 21). The DA was accompanied by and is comprised of plans referred to as DA02 (revision B), DA04 (revision B), DA05, DA06 (revision B) and DA07 (revision B) (Exhibit 1). For the reasons explained below, the respondent is the presiding member of the SJDAP but in these reasons shall be referred to as the SJDAP.
The determined preliminary issue
2 The question whether the DA was an application for the development and use of the Land as a 'Convenience Store' or as a 'Service Station', both defined by LPS 21, was determined in favour of the applicant, following a hearing of the preliminary issue (DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104). On 25 August 2016 the Tribunal ordered that:
1. The preliminary issue as to whether the proposed land use is correctly classified as 'Convenience Store' or as 'Service Station' under the City of Busselton Local Planning Scheme No 21 is answered as follows:
The proposed use is correctly classified as 'Convenience Store'[.]
3 There was no appeal from this decision by the SJDAP.
The DA and the Tribunal's review jurisdiction
4 The DA was made on 28 August 2015. The estimated cost of the proposed development is expressly stated in the DA to be $2.1 million (Exhibit 1). The Land is situated in the locality of Dunsborough within the City of Busselton (City) and therefore beyond the District of the City of Perth. By reason of s 171A(2)(ba) of the Planning and Development Act 2005 (WA) (PD Act) and reg 6 and reg 7 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regulations), the applicant was entitled to elect to have the DA determined by a Development Assessment Panel (DAP), rather than the City as the relevant responsible authority (cl 2 and cl 9.1 of LPS 21). The applicant attached to the DA the prescribed form, with Pt A thereof completed (reg 6 and reg 7 DAP Regulations), and thereby elected to have the DA determined by a DAP in this case the SJDAP
5 Regulation 18(2) of the DAP Regulations confers jurisdiction on the Tribunal to review a determination to refuse a DA by the appointed DAP:
… as if the determination … were a determination of a responsible authority.
6 The application to review the SJDAP decision is to be made to the Tribunal and determined pursuant to Pt 14 of the PD Act (reg 18(2) of the DAP Regulations). For the purposes of such an application, reg 18 of the DAP Regulations provides that the respondent to any review proceedings is 'the presiding member' of the relevant DAP. For this reason, the presiding member of the SJDAP is the named respondent in this proceeding.
7 For the reasons referred to above, the SJDAP decision to refuse the applicant's DA is a reviewable decision as provided for by s 3 and s 17(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and falls within the Tribunal's review jurisdiction (s 17(1) of the SAT Act).
The Tribunal's powers on review
8 The review is by way of hearing de novo on the merits (s 27(1) of the SAT Act). The Tribunal is not confined to the material before the original decisionmaker or the stated grounds of the review (s 27(2) of the SAT Act) and may rely on new material whether or not it existed at the time when the original decision was made (s 27(3) of the SAT Act). The Tribunal's objective, upon review, is to produce the correct and preferable decision at the time of the decision upon review (s 27(2) of the SAT Act).
9 In exercising the Tribunal's review jurisdiction, the Tribunal may exercise the power of the original decisionmaker (s 29)(1) of the SAT Act) along with any further powers conferred by the enabling Act (the PD Act) and the SAT Act. Ultimately, the Tribunal may affirm, vary or set aside the SJDAP decision and in the latter case, may substitute its own decision or alternatively refer the matter to the original decisionmaker for reconsideration with or without directions (s 29(3) of the SAT Act).
Orders sought
10 The applicant seeks an order that the SJDAP decision be set aside and the Tribunal substitute its own decision to approve the applicant's DA made on 28 August 2015 but revised on 16 October 2016. The SJDAP contends that the Tribunal should affirm the SJDAP decision. The Tribunal notes the applicant's statement of issues facts and contentions (ASIFC) concedes that the urged substituted approval of the DA may be conditional where the Tribunal concludes that the conditions are 'reasonably necessary to govern the proposed development' (ASIFC paragraph 67).
History of the proceedings before the Tribunal
11 The proceeding was listed for 13 directions hearings, two final hearings (including the preliminary issue) and a mediation. The parties were directed during the course of the proceedings, to exchange and file relevant material, submissions and statements of issues facts and contentions; afforded two substantive hearings; provided with the opportunity to call or give evidence, examine, cross-examine and reexamine witnesses and provide oral and written submissions.
12 The proceeding was listed for mediation where it was agreed between the parties that the SJDAP be invited to reconsider the SJDAP decision pursuant to s 31(1) of the SAT Act. The applicant advanced revised plans and details for the SJDAP's reconsideration. The revised plans and details advanced by the applicant were different to those advanced in the applicant's original DA, in respect of the location of various proposed improvements on the Land. The Tribunal's order made pursuant to s 31(1) of the SAT Act required the SJDAP's reconsideration to take place by 11 November 2016. By consent of the parties, the time for the reconsideration was extended to 14 November 2016.
13 The SJDAP's reconsideration made on 14 November 2016, by its terms, took into account the revised plans and details referred to as 'DA02 (revision G), DUNSL0005, DUNSL0008 and DUNSL0009' in the applicant's reconsideration notice (Respondent's Bundle (RB) at pages 1060 1063). After consideration of the aforementioned plans, the SJDAP again determined to refuse the DA. That is, pursuant to s 31(2) of the SAT Act, the SJDAP affirmed the SJDAP decision, albeit that the reconsideration was made in the context of different plans and details to those attached to the original DA.
14 On 23 November 2016, Eldorado Pty Ltd, the proprietor of properties at 59 and 61 Dunn Bay Road, Dunsborough (the neighbouring properties to the west of the Land) sought to intervene in this review. The intervention application was opposed by the applicant and the SJDAP neither supported nor objected to the same. The intervention application was listed for hearing on 9 December 2016. On 9 December 2016, the intervention application hearing was vacated. The Tribunal granted Eldorado Pty Ltd permission to file submissions 'in respect of the matters arising in this proceeding', with the agreement of the applicant, pursuant to s 37(3) of the SAT Act. Eldorado Pty Ltd's submissions were filed on 7 December 2016 and received during the final hearing as submissions by the intervener.
15 The final hearing of the review took place on 1 and 2 February 2017.
Documents
16 The following documents were exhibited during the course of the final hearing:
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Application and attachments, dated 24 December 2015
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Respondent's Statement of Issues, Facts & Contentions, dated 2 December 2016
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Applicant's SIFC, dated 21 December 2016
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Respondent's Draft 'Without Prejudice' Conditions, dated 13 January 2017 and amended conditions dated 1 February 2017
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Applicant's response to 'Without Prejudice' Conditions, dated 30 January 2017
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Respondent's Section 24 Documents, dated 5 December 2016
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Respondent's supplementary s24 Bundle
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Witness statement of Paul Scott Needham dated 13 January 2017
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Witness statement of Joe Algeri dated 13 January 2017
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Witness statement of Geoffrey Patrick Stewart dated 17 January 2017
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Witness statement of Emmerson Richardson dated 13 January 2017
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Witness statement of Emmerson Richardson (responsive witness) statement dated 30 January 2017
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Witness statement of Tim Reynolds dated 16 January 2017
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Witness statement of Ronald Andrew Visser dated 24 January 2017
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Witness statement of Donald Nigel Veal dated 25 January 2017
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Witness statement of Paul Basil Kotsoglo dated 25 January 2017
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Puma Mount Melville Albany Data table
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17 Exhibits 6 and 7 shall be referred to as the Respondent's Bundle (RB).
The SJDAP decision
18 The conclusions made in the reasons for the SJDAP decision (RB page 1082) identify six reasons for refusal by the SJDAP as follows:
1. The proposed development is inconsistent with Objective No. 2 and Policies a) and e) of the 'Business' zone as the proposal will fragment the town centre by excluding land to the west and north of the property along Dunn Bay Road from being able to connect in a meaningful way to the established main street.
2. The proposed development is inconsistent with the strategic direction of the town centre established in the Local Commercial Planning Strategy and Dunsborough Town Centre Conceptual Plan.
3. The proposed development will have a detrimental impact on the visual and pedestrian amenity of Dunn Bay Road and Cyrillean Way. It does not contain a façade that addresses the streetscape or promotes pedestrian amenity and is inconsistent with the established character and likely future amenity of the area.
4. The proposed development is likely to result in an increase of pedestrian and vehicular conflict on Dunn Bay Road and the access to and from the site is inadequate for vehicles and tankers.
5. The proposed development will detrimentally impact on the development and use of adjoining lots and potentially conflicts with future sensitive land uses permitted on these lots including residential development, tourist accommodation, offices, restaurants and shops.
6. The removal of on-street parking is inappropriate and inconsistent with the function of Dunn Bay Road as a 'main street' for the town centre.
19 The conclusions made in the reasons for the affirmation of the SJDAP decision (RB page 1055) identify six reasons for refusal as follows:
1. The proposed development is inconsistent with Objective No. 2 and Policies a) and e) of the 'Business' zone as the proposal will fragment the town centre by excluding land to the west and north of the property along Dunn Bay Road from being able to connect in a meaningful way to the established main street.
2. The proposed development is inconsistent with the strategic direction of the town centre established in the Local Commercial Planning Strategy and Dunsborough Town Centre Conceptual Plan.
3. The proposed development will have a detrimental impact on the visual and pedestrian amenity of Dunn Bay Road and Cyrillean Way. It does not contain a façade that addresses the streetscape or promotes pedestrian amenity and is inconsistent with the established character and likely future amenity of the area.
4. The proposed development will detrimentally impact on the development and use of adjoining lots and potentially conflicts with future sensitive land uses permitted on these lots including residential development, tourist accommodation, offices, restaurants and shops.
5. The removal of on-street parking is inappropriate and inconsistent with the function of Dunn Bay Road as a 'main street' for the town centre.
6. The proposed development will generate traffic such that there will be an unacceptable impact on traffic flows and increase conflicts between vehicles and pedestrian during peak times.
20 The traffic issues at that point crystallised into the following considerations:
(a) whether the proposed development would interfere with and have a detrimental impact on the proposed amenity, and streetscape of the Dunn Bay Road, and
(b) whether the proposed development would have a negative impact on pedestrian access along Dunn Bay Road and traffic on Dunn Bay Road;
21 because of the asserted increase traffic generation at 'peak times' and the proposed development's need for a wide crossover access for, inter alia, refuelling tankers.
22 The remaining planning issues at that point crystallised into the following:
(a) that the proposed development was inconsistent with the:
(i) 'established character' of the area;
(ii) 'likely future amenity of the area';
(iii) western and northern neighbouring properties connecting 'in a meaningful way to the established main street';
(iv) 'established' strategic direction of the town centre;
(v) future sensitive land uses permitted on adjoining lots including residential development, tourist accommodation, offices, restaurants and shops;
(b) that the proposed development would have a detrimental impact on the visual amenity of both Dunn Bay Road and Cyrillean Way;
(c) that the proposed development would fragment the town centre;
(d) that the proposed development did not contain a façade that:
(e) that the removal of one on-street car parking bay was inconsistent with the 'main street' of the town centre;
(f) that Dunn Bay Road was a 'main street' of the town centre.
The revised plans and details of the applicant's DA for reconsideration
23 The applicant's application, on reconsideration by the SJDAP, was based on revised plans provided to the SJDAP on or about 19 October 2016. The revised plans and details are summarised by the applicant's solicitor in a letter dated 19 October 2016 (RB page 1057) and was accompanied by the revised plans previously referred to, including a proposed site plan, floor plans, elevations and a traffic management plan (RB pages 1060 1075) and presented in a table with comments as follows:
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Additional comments/Justification
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Relocating the retail building from the western boundary to front the corner of Dunn Bay Road and Cyrillean Way.
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Provides an active street corner, which accords with the City's desire for development consistent with 'main street' design principles.
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Minor increase to the floor area of the retail building from 188m² to 191m².
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A service window to the southern wall of the retail building providing for the sale of coffee.
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Providing activation and interaction with Dunn Bay Road.
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A covered alfresco dining and outdoor seating area.
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Providing further activation and interaction with Dunn Bay Road.
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2.5m wide landscaping strip along the extent of the western lot boundary.
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Softens the visual impact of the development on neighbouring property.
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Landscaping strips along the Dunn Bay Road and Cyrillean Way lot boundaries.
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Providing a soft street edge and pedestrian amenity.
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Green wall installations along the eastern wall of the retail building.
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Providing visual interest and building articulation towards Cyrillean Way.
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Indicative location for public art identified on the southern wall of the retail building.
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Creates visual interest along the primary street frontage and articulation.
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Provision of 7 car parking bays fronting the retail building and 3 parallel car parking bays along the western lot boundary.
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2 car bays in excess of the 8 required under the City's Local Planning Policy 2 Traffic and Transport Policy.
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Relocation and increase in width (from 6m to 9m) of the proposed Dunn Bay Road crossover.
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Provides safe and efficient traffic movements to and from the site.
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Provision of a bicycle rack with 4 spaces, within the alfresco area and beneath the awning.
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Encourages alternate travel options and facilities for local residents and tourists.
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New footpath along Cyrillean Way.
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Promotes greater pedestrian amenity along Cyrillean Way.
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Front of store footpath connecting with the Dunn Bay Road verge footpath.
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Improving walkability, and pedestrian access and safety.
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Relocation of the proposed pylon sign from the corner of Dunn Bay Road and Cyrillean Way to adjacent to the western lot boundary.
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Allows for activation of the street corner.
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24 In respect of the traffic management plan the applicant, through its solicitor, commented as follows:
The enclosed Traffic Management Plan (TMP) includes the amended site layout with three options for the tanker access as discussed at mediation, albeit the tanker does not stay lane correct. This is the preferred option. The TMP recommends delivery times avoid weekday peak periods to minimise to alleviate the issue.
A modified layout is also shown with two tanker access options staying lane correct. The truck cannot stay lane correct whilst negotiating the Dunn Bay Road/Cyrillean Way intersection, which is already constructed.
The statutory framework
25 Section 252(1) of the PD Act, within Pt 14 of the PD Act, relevantly provides:
Subject to subsection (3), if
(a) under a planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; and
(b) a person has applied to the responsible authority for such a grant; and
(c) the responsible authority has
(i) refused the application
…
the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority's decision.
26 Whilst 'responsible authority' is defined by s 4 of the PD Act to mean the local government in the case of a local planning scheme, it is to be remembered that this application was to be determined by the SJDAP, by reason of reg 18 of the DAP Regulations 'as if' the determination were a determination of a responsible authority'.
27 The phrase 'planning scheme' in s 252(1) of the PD Act is defined by s 4 of the PD Act, relevantly, to mean 'a local planning scheme' and is further expressed to include:
(a) the provisions of the scheme being
(i) the provisions set out in the scheme; and
(ii) any State planning policy that, with any modifications set out in the scheme, has effect under section 77(2)(b) as part of the scheme; and
(iii) any provisions that have effect under section 257B(2) as part of the scheme;
and
(b) all maps, plans, specifications and other particulars contained in the scheme and colourings, markings or legends on the scheme.
28 Section 87(4) of the PD Act provides that:
A local planning scheme or amendment to a local planning scheme, when approved by the Minister and published in the Gazette, has full force and effect as if it were enacted by this Act. (Tribunal emphasis)
29 LPS 21 was prepared pursuant to s 72 of the PD Act and originally published in the Government Gazette on 15 October 2014. There have been further amendments that have been the subject of subsequent publication in the Government Gazette on various dates up until 2 December 2016 and that is the version that has force and effect as if it were enacted by the PD Act, as at the date of the Tribunal's decision. However, the version published in the Government Gazette on 2 December 2016 does not differ relevantly from that version at RB pages 527 - 726 being published as at 23 September 2016.
30 Section 69(1) of the PD Act provides that a local planning scheme may be made under the PD Act:
… with respect to any land
(a) with the general objects of making suitable provision for the improvement, development and use of land in the local planning scheme area; and
(b) making provision for all or any of the purposes, provisions, powers or works referred to in Schedule 7.
31 Schedule 7 of the PD Act identifies the matters which may be dealt with by a local planning scheme and includes the following:
…
6. Zoning
(1) Zoning of the scheme area for appropriate purposes.
(2) Designation of users in zones as permitted, prohibited or requiring approval.
7. Controls for land management
Controls for land or site management for matters to which this Act relates.
8. Development standards
Standards for the development of any class or kind of building, structure, work or advertisement including standards in respect of
(a) size;
(b) appearance;
(c) placement;
(d) location;
(e) number;
(f) landscaping;
(g) open space;
(h) parking;
(i) measures to maximise energy efficiency;
(j) any other activity or requirement arising from the development.
9. Development controls
Approval, refusal or approval subject to conditions of any use or class or kind of development by a consideration of any matter to which the Act relates including the public interest.
32 Section 69(1) of the PD Act is expressed to apply 'subject to s 256 and the regulations made under it and s 257A and 257B' (s 69(3) of the PD Act). Section 256(1) of the PD Act empowers the Minister to:
33 The Minister is empowered to regulate the objects of a local planning scheme (s 69(1)(b) and Sch 7 of the PD Act) and the carrying out of those objects by promulgating regulations. In making any such regulations the Minister must designate whether the regulations is a 'model provision' (s 256(5)(a) of the PD Act) or a 'deemed provision' (s 256(5)(b) of the PD Act. LPS 21, having been approved by the Minister and published in the Government Gazette as provided for by s 87 of the PD Act, takes effect as if enacted by the PD Act and is a local planning scheme to which a deemed provision may apply.
34 A deemed provision is one to which s 257B of the PD Act applies which provides, relevantly:
…
(2) Deemed provisions, as amended from time to time, have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force.
(3) If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.
35 On 19 October 2015, the substantive provisions of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) came into force and effect (reg 2 of the LPS Regulations).
36 Regulation 10 of the LPS Regulations provides:
(1) The provisions in Schedules 1 and 2 are prescribed for the purposes of section 256 of the Act.
…
(4) The provisions in Schedule 2 are deemed provisions, being provisions to which section 257B of the Act applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text.
37 In this proceeding, the parties do not dispute that the relevant documents and matters that comprise the local planning scheme is LPS 21 including, all text, maps, plans specifications and other particulars contained in the scheme and colourings, markings or legends on the scheme map, including the Zoning Table referred to in cl 4.3 of LPS 21 (RB pages 562 - 571) and the deemed provisions imposed by reason of the promulgation of the LPS Regulations, described and identified as those clauses in Sch 2 of the LPS Regulations (deemed provisions).
38 Clause 1.5 of LPS 21 relevantly provides:
The purposes of the Scheme are to
(a) set out the local government's planning aims and intentions for the Scheme area;
…
(c) zone land within the Scheme area for the purposes defined in the Scheme;
(d) control and guide land use and development;
(e) set out procedures for the assessment and determination of applications for planning approval;
(f) make provision for the administration and enforcement of the Scheme.
39 Clause 1.6 identifies the aims of LPS 21 and provides
The aims of the Scheme are
(a) to provide for the development and, where necessary, the improvement of the City of Busselton in physical, social and economic terms (and, in particular, to broaden its economic base) and for orderly and economic development and optimum use of its land and other resources, consistent with the conservation of important natural and manmade features, and to do so in such a way that the likely need and aspirations of the people of the City, the region and the State will be provided for and realised;
(b) to provide a comprehensive planning instrument for the City that is clear and explicit but which provides flexibility in its application;
(c) to provide resourceful guidance to
(i) the preparation of Development Guide Plans;
(ii) public authorities in respect of the likely future needs of the City;
(iii) the private sector in terms of future development opportunities and requirements; and
(iv) the community in respect of the manner in which the effects of growth and change are proposed to be managed;
(d) to ensure that rational decisions are made with regard to land use and that the assessment and classification of land resources on the basis of capability and suitability are an essential facet of the planning process;
(e) to facilitate the provision of public amenities and community support services consistent with the development and growth of the City;
(f) to ensure that growth and development of the City occurs in a way which preserves existing environmental qualities and minimises adverse environmental impacts;
(g) to ensure that existing and future residents enjoy a range of attractive living environments and have access to the widest possible range of services and amenities;
(h) to protect and enhance areas within the City identified as being of significant environmental value.
(Tribunal emphasis)
40 The City's intention, as expressed by the purposes and aims of LPS 21, is that LPS 21 is to provide clarity to all those who may rely upon it, as to the plan that the City has for the scheme land.
41 Clause 1.7.1 of LPS 21 provides:
Unless the Scheme or the context otherwise requires, words and expressions used in the Scheme have the same meaning as they have
(a) in the Planning and Development Act; or
(b) if they are not defined in that Act
42 Schedule 1 of LPS 21 defines the term 'Convenience Store'. For the purposes of this proceeding the deemed provisions definitions are not inconsistent with any of the definitions contained within Sch 1 of LPS 21, although they contain additional relevant definitions.
43 Consistently with cl 6 of Sch 7 of the PD Act, LPS 21 identifies zones of land for particular purposes and designates 'uses' that are 'permitted, prohibited or require approval'. The word 'zone' is not defined in the PD Act nor in LPS 21. It is, however, defined in cl 1 of the deemed provisions as follows:
zone means a portion of the Scheme area identified on the Scheme Map as a zone for the purpose of indicating the controls imposed by this Scheme on the use of, or the carrying out of works on, land, but does not include a reserve or special control area.
44 Part 4 of LPS 21 is concerned with 'zones'. Clause 4.1.1 of LPS 21 classifies the scheme land identified in scheme maps into 14 zones. The zones are delineated on the scheme map according to the legend on the scheme map (cl 4.1.2). That is, there are 14 zones identified in the scheme map that indicate the different controls imposed by LPS 21, 'on the use of or the carrying out of works on' scheme land.
45 The definition of 'development' is contained in s 4 of the PD Act and applies to LPS 21 by reason of cl 1.7.1(a). The term 'development' in s 4 of the PD Act is defined as follows:
… means the development or use of any land, including
(a) any demolition, erection, construction, alteration of or addition to any building or structure on the Land;
(b) the carrying out on the Land of any excavation or other works[.]
46 The PD Act does not define 'use'. LPS 21 does not define 'use' and the deemed provisions do not define 'use'. The definitions in (a) and (b) of the definition of 'development' in the PD Act exactly mirror the definition of 'works' as provided for in cl 1 of the deemed provisions:
… in relation to land, means
(a) any demolition, erection, construction, alteration of or addition to any building or structure on the Land; and
(b) the carrying out on the Land of any excavation or other works[.]
47 The definition of 'development' in the PD Act expressly combines both 'use' and what is defined as 'works' in the deemed provisions and it is clear that within the definition of development, 'use' is separate to that which appears in (a) and (b). Together the term 'use' and the definition of 'works' referred to above, and the definition of 'development' as provided for in the PD Act each, encompasses the two meanings of 'use' referred to by Burt CJ in University of Western Australia v City of Subiaco and Anor [1980] WASC 28 (11 March 1980) (UWA v City of Subiaco) at page 7, citing Lord Denning in Parkes v Environment Secretary (1978) 1 WLR 1308 (Parks v Environment Secretary) at page 1311:
… activities which are done in…or on the Land but do not interfere with the actual physical characteristics of the Land
48 (first sense) and
... activities which result in some physical alteration to land which has some degree of permanence to the Land itself
49 (second sense).
50 The Zoning Table refers only to 'use' and in that respect, given its specific purpose and given that LPS 21 devotes a number of provisions to the control of 'works', the term is used in the first sense in the Zoning Table (UWA v City of Subiaco).
51 The terms 'Business' or 'Business Zone' are not defined in LPS 21, the deemed provisions nor the PD Act. There is no dispute that the Land falls within the area delineated on the scheme map as the 'Business' zone. The objectives and policies of each zone label is the subject of cl 4.2 of LPS 21. Clause 4.2 of LPS 21 identifies the meaning of each zone label referred to in cl 4.1.1 by reference to the express objectives and policies specified as applicable for each zone label. Clause 4.2.2 of LPS 21 articulates the 'objectives' and 'policies' of the 'Business Zone' as:
Objectives
(a) To provide for convenientlylocated shopping and other service associated commercial activities to service each centre's catchment area, as determined by the relevant planning framework.
(b) To maintain and reinforce the viability of existing commercial centres, including those supporting adjoining agricultural areas.
Policies
(a) To encourage the provision of retail and other business services and associated development to add to the strength and diversity of existing centres.
(b) As far as is practical and appropriate to allow market forces to influence the location of retail and office uses within existing centres with minimal intervention by the local government.
(c) To allow residential development only where it is a component of commercial development.
(d) To utilise and strengthen the existing town centres of Busselton and Dunsborough as the primary retail and commercial centres of the City by active discouragement of any new 'out of town' shopping centres other than neighbourhood shopping centres, convenience stores and the like.
(e) The consolidation of land to assemble larger land parcels suitable for integrated development or redevelopment is encouraged and supported. Fragmentation of land, unless it is part of an overall plan for integrated development or redevelopment, will generally not be supported.
52 In this proceeding, there was no expert evidence concerning the 'viability of the existing commercial centres' or the 'viability impact of the proposed development and use' referred to in objective (b) above. There were non-expert statements made by a number of witnesses about the 'need' for the proposed development or the economic impact of the proposed development on other nearby similar businesses, but such statements are not reliable as opinion evidence and in any event the need for such a business and its impact on competitors within the locality is not a relevant factor for the Tribunal's consideration in this proceeding, given the direction contained in cl 4.2.2 of LPS 21.
53 The reference to 'as determined by the relevant planning framework' in Business Zone objective (a) referred to above, includes a reference to the Zoning Table, as it forms part of the 'relevant planning framework' of LPS 21 and the deemed provisions.
54 Clause 4.3 of LPS 21 refers to the Zoning Table and cl 4.3.1 of LPS 21 states:
Table 1 Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in the various zones[.]
(Tribunal emphasis)
55 Although LPS 21 provides for controls over land within a zone and those controls extend to 'use' and 'works' which together comprise 'development' for the purposes of the PD Act, the Zoning Table on its face is relevant only to 'use' of land within a zone.
56 Clause 4.3.1 of LPS 21 proceeds to instruct how the Zoning Table is to operate:
... The permissibility of any uses is determined by crossreference between the list of use classes on the left hand side of the Zoning Table and the list of zones at the top of the Zoning Table.
57 In short, the intersection of the vertical and horizontal axes of the Zoning Table identifies a letter/symbol. In this proceeding, the relevant letter/symbol is 'P'.
58 Clause 4.3.2 of LPS 21 provides the legend to decipher the letters/symbols found within the Zoning Table. Consistently with cl 6 of Sch 7 to the PD Act, the definition applicable to each letter/symbol describes whether the use is 'permitted, prohibited or requiring approval'. Clause 4.3.2 provides that the symbols used in the Zoning Table have the following meanings:
'P' means that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme;
'D' means that the use is not permitted unless the local government has exercised its discretion by granting planning approval;
'A' means that the use is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 10.4;
'X' means a use that is not permitted by the Scheme.
59 To the extent that the Zoning Table intends or aims to clearly identify to public and private interests alike the controls applicable to scheme land in a zone, where it identifies that the use classification is permitted in a particular zone, the City, whose task it was to formulate the scheme, has concluded that the specific use classification conforms with the objectives and policies relevant to that zone. In the case of a 'Convenience Store' within the 'Business Zone' the use classification is described as 'P'. Provided that the Convenience Store use complies with the 'relevant development standards' and 'the requirements of the Scheme' that is, any other requirements of the scheme there is no discretion to refuse the application based on the use classification. As cl 4.3.1 of LPS 21 provides, the Zoning Table is indicative of the degree of permission of use classifications in specified zones, but that indication remains subject to the balance of the provisions in LPS 21, so that if there are specific provisions concerning a particular aspect or feature of the application for development (for example: bulk, size and number of necessary structures or other structures, hours and manner of operation, parking, traffic, noise issues), the permission indicated in the Zoning Table may be overtaken by other factors that result in the specific application for development, identified by the plans and details of the application, being refused. In such a situation the application for development is not refused because the use classification is not permitted.
60 The role of the Zoning Table in LPS 21 is to indicate the City's determination concerning a specified defined use classification's suitability to the specified zone and the zone objectives and policies referred to in cl 4.2. The scheme map and legend indicates which sites are determined by the City to be suited to the specified zone policies and objectives. There is no room for the decision-maker to reconsider those issues because that is the purpose of the scheme map, the legend and the Zoning Table. If the City had been unsure whether all the sites in the Business Zone are suitable for use as a Convenience Store, then the Zoning Table should have reflected that by specifying 'D' or 'A'. If the City had been certain that none of the sites in the Business Zone are suitable for use as a Convenience Store, then the Zoning Table should have reflected that position by specifying 'X'. To that extent the Tribunal concludes that the assessment whether the use classification is suited to the zone, by reference to the objectives and policies specified for the Business Zone in cl 4.2.2 of LPS 21, is determined by the Zoning Table in the affirmative as indicated by the 'P' symbol.
61 In every case, whether the proposed development use and works is permitted is a question of statutory construction of LPS 21 as a whole (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355) and the Zoning Table indicates a control over the use of scheme land. LPS 21, read as a whole, provides that a use classification in a zone that is permitted implies that the necessary and obvious additions or modifications to the scheme land that are necessary to conduct the activities referred to in the permitted use classification definition, are also permitted but subject to the remaining requirements of LPS 21. To conclude that the use is permitted but approval may be withheld because of the obvious and necessary works to perform the activities comprised in the use, would render the Zoning Table otiose and would not meet the express purposes and aims of clarity of LPS 21.
62 The SJDAP's opening submissions concede that the applicant's application for use of the Land as a defined Convenience Store complies with the relevant Business Zone development standards identified in cl 5.19 to cl 5.23 of LPS 21 or that with conditions it could be compliant with the same (paragraph 21 of the SJDAP's opening submissions). The SJDAP, however, contends that the permitted use must still comply with 'the requirements of the Scheme' which extends to assessing whether the works necessary for the permitted activity to take effect are suitable for the site within the Business Zone. For the reasons explained above, the Tribunal rejects that proposition and restates that it is not a question of the nature of the works being 'suitable' to the site, but rather, whether the proposed development, as a whole, meets the terms of LPS 21, in light of the fact that the use classification is permitted in the Business Zone and on scheme land within that zone and, specifically on the Land.
63 The applicant contends that if the use is 'permitted' by the Zoning Table then the decisionmaker's discretion is very much more limited and a refusal of the development application on the basis of the suitability of the use to the subject site is not open to the decisionmaker and the balance of the decisionmaker's considerations extend to the application of conditions to meet the development standards and conditions of the Scheme in question (ASIFC paragraphs 24 32). The applicant asserts that this interpretation arises from the Zoning Table itself. For the reasons referred to above, the Tribunal rejects that proposition as well.
64 In further aid of that the applicant's contention that once the Zoning Table identifies the use in the zone as permitted, then the use is permitted 'as of right' the applicant refers to the following notes which appears in italics at the conclusion of cl 4.3.5 and before the commencement of cl 4.4.1 of LPS 21:
Notes: 1. The planning approval of the local government is required for the development of land in addition to any approval granted for the use of land. In normal circumstances one application is made for both the use and development of land.
2. The local government will not refuse a 'P' use because of the unsuitability of the use for the zone but may impose conditions on the use of the land to comply with any relevant development standards or requirements of the Scheme, and may refuse or impose conditions on any development of the land.
3. In considering a 'D' or 'A' use, the local government will have regard to the matters set out in clause 11.2.
4. Unless otherwise provided for, the local government must refuse to approve any 'X' use of land. Approval to an 'X' use of land may only proceed by way of an amendment to the Scheme.
65 The SJDAP contends that these notes do not form part of LPS 21 and relies upon cl 1.7.3 LPS 21 which directs that:
Notes, and instructions printed in italics, are not part of the Scheme.
66 The deemed provisions contain no provisions concerning notes in italics or otherwise. Read literally, cl 1.7.3 of LPS 21 directs, as a matter of interpretation, that the italicized notes are not to be given any consideration when interpreting LPS 21.
67 To defeat the SJDAP's contention and the clear directive of cl 1.7.3 of LPS 21, the applicant relies upon the provisions of s 31(2) of the Interpretation Act 1984 (WA) (Interpretation Act) which relevantly provides:
An appendix or schedule to or a table in a written law, together with any notes thereto, forms part of the written law.
(Tribunal Emphasis)
68 It is not in dispute that the provisions of LPS 21 are 'subsidiary legislation' and also a 'written law' within the meaning of those phases as defined by the Interpretation Act. There is no dispute that the provisions of the Interpretation Act apply to LPS 21. The applicant relies on the decision of this Tribunal in 36 Chester Avenue Pty Ltd and City of Stirling [2012] WASAT 198 (36 Chester). The applicant asserts (ASIFC paragraph 20ff) that the Tribunal in 36 Chester did not give full effect to the express words of a clause similar to cl 1.7.3 of LPS 21 because of the application of s 31(2) of the Interpretation Act. The applicant further asserts that the Tribunal in 36 Chester could have relied on s 43(1) of the Interpretation Act to strike down cl 1.7.3 as being inconsistent with s 31(2) of the Interpretation Act.
69 The Tribunal concludes that 36 Chester determined, as a matter of law, a very limited issue whether superscript 2 to the Zoning Table had legislative meaning. In that proceeding, the issue was how to interpret the Zoning Table and whether the the superscript 2 marked by a dagger symbol is a note that comprised part of the Zoning Table. In 36 Chester the superscript 2 marked by a dagger symbol appeared in the Zoning Table and at the foot of the Zoning Table, with an explanation of what it meant; did not appear elsewhere in the scheme under consideration and was not printed in italics. These facts are marked differences to the position in LPS 21.
70 Section 31(2) of the Interpretation Act is not a provision that is directed to interpreting notes in written laws. Rather, it is directed to appendices and schedules to or tables in written laws and it directs that such documents form part of the written law that they are appended or scheduled to or in which the table appears 'together with any notes thereto'. The 'notes thereto' refer to any notes applicable to the appendix or the schedule appended to or the table within the written law and not to a note in the written law generally.
71 The provisions of s 31(2) of the Interpretation Act and the decision in 36 Chester do not, in the Tribunal's view, support the applicant's contention that italicized notes 1, 2, 3, and 4 positioned between cl 4.3.5(d) and cl 4.4.1 of LPS 21 and several pages before the Zoning Table, form part of the Zoning Table or LPS 21 and have legislative operation.
72 The SJDAP also submits that s 32(2) of the Interpretation Act applies in this matter to direct that, as a matter of law, the notes in question in this proceeding do not have legislative operation and do not form part of LPS 21. The Tribunal concludes that s 32(2) of the Interpretation Act has no application in this proceeding because that provision is only concerned with 'marginal' or 'footnotes' to a written law that is, notes orientated in particular places within the written law (the margin or the foot of the written law). If the Tribunal is wrong in that view however, and the notes in issue in this proceeding are marginal or footnotes, then the provisions of s 32(2) of the Interpretation Act direct that such notes do not form part of the law and therefore do not form part of LPS 21.
73 In short, the Tribunal concludes that notes 1, 2, 3 and 4 that appear between cl 4.3.5(d) and 4.4.1 in italics do not form part of the written law, LPS 21. The Tribunal shall have no regard to those notes in determining the correct law applicable in this proceeding.
74 In complying with the other requirements of LPS 21, cl 60 of the deemed provisions relevantly direct that approval of the development must be obtained under Pt 8 of the deemed provisions. It is obvious from cl 63 of the deemed provision, concerning the material to accompany any application for development approval, that the 'works' and the proposed manner of the operation of the activities falling within the defined use classification are relevant in the consideration of whether to approve, refuse or impose conditions to any approval of the application.
75 A development application's proposal for the specific design, bulk, size, scale, orientation and number of fixtures and structures on the land, along with the proposed hours of operation, vehicular and pedestrian access, parking needs and location of parking bays are all matters that are not the subject of the Zoning Table but remain to be considered by the responsible authority in granting or refusing approval, in accordance with the requirements of LPS 21. It is therefore possible for a development proposal for a use classification that is permitted by reason the Zoning Table, to be refused because of the specific works or the manner of intended operation of the use for which approval is sought Puma Energy Australia and City of Cockburn [2016] WASAT 36 at [35] (Puma Energy). Alternatively, the operation of the permitted activities may be a basis to impose conditions, where on the facts the locality is sensitive to some aspect of the intended operation of the activities falling within the permitted use classification.
76 As the SJDAP does not dispute that the DA, based on the revised plans and details, meets the relevant development standards of LPS 21 or is capable of meeting the same, the Tribunal turns to the other requirements of LPS 21, relevantly.
77 Turning to the other requirements LPS 21, the applicant in its ASIFC agrees with the SJDAP's statement at paragraphs 19 and 20 of RSIFC that:
The matters that inform the exercise of discretion in relation to development control are set out at cl 67 of the PD (LPS) Regulations.
Clause 67 of the PD(LPS) Regulations has the effect of replacing cl 11.2 of [LPS 21] on the basis that the two provisions are inconsistent and in such circumstances the deemed provision applies: see Puma Energy Australia and City of Cockburn [2016] WASAT 36
78 Clause 67 of the deemed provisions, relevantly, provides:
In considering an application for development approval the [SJDAP] is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application
(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b) the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c) any approved State planning policy;
…
(e) any policy of the Commission;
(f) any policy of the State;
(g) any local planning policy for the Scheme area;
(h) any structure plan, activity centre plan or local development plan that relates to the development;
…
(m) the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n) the amenity of the locality including the following
(i) environmental impacts of the development;
(ii) the character of the locality;
(iii) social impacts of the development;
…
(p) whether adequate provision has been made for the Landscaping of the Land to which the application relates and whether any trees or other vegetation on the Land should be preserved;
…
(s) the adequacy of
(i) the proposed means of access to and egress from the site; and
(ii) arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t) the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(x) the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y) any submissions received on the application;
(za) the comments or submissions received from any authority consulted under clause 66;
(zb) any other planning consideration the local government considers appropriate.
Discussion\
79 In discussing the planning merits of the proposed works and the manner of intended operation of the proposed development, the Tribunal has examined planning documents to which the SJDAP asserted it was necessary to have due regard. The planning witnesses cited particular passages of those documents in support of their respective positions on the planning merits of the proposed development.
80 The Tribunal commenced its analysis by noting that it considers that when examining and considering a particular planning document, it is not appropriate to examine and consider passages cited in isolation, but it must examine and consider the context of the cited passages and the purpose for which the particular planning document as a whole was prepared.
81 Further, the Tribunal observes and concludes on the evidence of the planning material put before the Tribunal, that the preparation and adoption by the City of various planning documents, including LPS 21 amendments and development guide plans, as provided for at cl 7.5 of LPS 21, to control development applications in the Business Zone, remains, in significant instances, inchoate, if commenced at all. The City has undertaken significant work preparing what it has sometimes termed as 'strategies' to set out what it considers needs to be done next to impose controls on development in the Business Zone or in a number of instances started, the process of bringing into existence the 'strategies' in clear and precise written directives for use as a basis for development control but has not yet completed that process. The various documents cited by the SJDAP are considered below. In examining and considering the various planning documents, the Tribunal is mindful that LPS 21 was published in the Government Gazette on 15 October 2014.
Shire of Busselton Local Commercial Planning Strategy and Local planning Strategy
82 Section 5 of the Local Commercial Planning Strategy (Commercial Strategy) is concerned with 'Urban Design Principles'. Clause 5.3 deals specifically with 'Urban Design Principles' in Dunsborough. Under the heading 'Precinct Planning', Mr Algeri and Mr Needham, planning experts called by the SJDAP, cited from the Commercial Strategy (RB page 240):
As has been noted in various studies, Dunsborough ought to consolidate its commercial floor space in a 'Main Street' format … Despite significant changes, the current form of the town centre does not yet wholly reflect a Main Street' approach to urban design or land use planning. 83 Reference was made by them to 'built form' under clause 5.3.3 of the Commercial Strategy, which states (RB page 237):
• Key Principles: Develop a more cohesive, 'seaside' based architectural style and control the intrusion of poorer quality and ad hoc building styles.
The built form in Dunsborough is ad hoc with no cohesion or design theme evident. This should be addressed as a priority. There are opportunities to develop a 'seaside' theme which would further link the development of the town to its coastal location.
84 Reference was also made to 'pedestrian links' from clause 5.3.3 of the Commercial Strategy, which states (RB page 238):
• Key Principle: Increase safe and efficient pedestrian movement in the town.
A number of actions have been suggested for this key principle:
– Encourage pedestrian movement from the town to the foreshore as a focal point.
– Improve the legibility of pedestrian links between sites within the town.
– Review the large roundabout at the intersection of Dunn Bay Road and Naturaliste Terrace to prioritise for pedestrian movement or potential removal.
– Undertake a traffic study to resolve pedestrian vehicular conflict in the town centre.
85 In relation to 'car parking' cited from clause 5.3.3 of the Commercial Strategy is expressed as (RB page 238):
• Key Principle: Provide well located car parks to encourage pedestrian movement in the centre of town
Key elements to consider are:
– The potential consolidation of parking facilities in peripheral locations to discourage fragmented and small parking locations.
– Provision of dedicated staff parking facilities to avoid the overlap with users of the town centre.
– The delineation of bays at the rear of future development to allow for the provision of a zero setback streetscape.
86 Mr Algeri and Mr Needham stated, respectively, that in their opinion the resultant development 'would not adequately and appropriately address the strategic planning direction of the Dunsborough town centre' and was 'not consistent with the clearly articulated direction of the relevant planning framework'.
87 Mr Algeri and Mr Needham, in their opinion, considered that the built form of the proposed development would further add to the ad hoc building styles currently present along Dunn Bay Road; would not achieve the zero setback streetscape required for the desired main street character for Dunn Bay Road and would not have the potential to be integrated with and be consistent with adjoining developments. They said the proposed development would be in conflict with desired pedestrian movement because it would be vehicle orientated, designed to attract cars and have wide crossovers.
88 The Tribunal notes that Mr Algeri and Mr Needham identified and relied upon particular passages in the Commercial Strategy that supported their opinions and conclusions. The Tribunal has noted that the Commercial Strategy was adopted by the City in 2011 for a particular purpose. In the Executive Summary of the Commercial Strategy it states (RB page 197):
Recommended actions to capitalise on the opportunities include:
• Commissioning a study of urban design themes for inclusion into the TPS as a policy to guide the aesthetics of future development.
• Amending the TPS to lift height limits in the town centre and rezoning select surrounding sites to an R40-R80 designation.
• Reviewing the pedestrian movement and traffic circulation network in the town centre (in conjunction with the parking study currently being conducted).
Council should integrate the general urban design criteria espoused in the Liveable Neighbourhoods policy document (WAPC) into the TPS as a general guideline for the development of commercial centres.
… By implementing the various actions documented in this LCPS, Council can help create vibrant, active, safe and efficient commercial centres.
89 The Tribunal also notes the Commercial Strategy includes the following recommendations to achieve its stated aims (RB page 245):
28) Council should consider the preparation of an amendment to the TPS to facilitate the following land use changes in the Dunsborough town centre:
a. A clarification of the term subsidiary in reference to residential uses in the policies for the Business zone (as per the suggested amendment for Busselton).
b. The rezoning of the land along Dunn Bay Road (excluding the parkland) to allow higher intensity, mixed use development.
c. The office, administrative and consulting precinct shown on Figure 27 should not have a different zoning to the rest of the Dunsborough town centre.
29) Council should commission a study of urban design improvements in the Dunsborough town centre, with particular reference to the development of a design theme for inclusion into the TPS as a policy.
30) Council consider amending the TPS to lift height limits in the town centre and to rezone the selected sites to an R40-R80 designation.
31) The development of buildings higher than three storeys in Dunsborough town centre should require a careful consideration of design issues and the development of more detailed planning guidelines relating to taller buildings.
90 From the evidence before the Tribunal, the only action the City has taken in pursuit of the recommendations referred to is to prepare, process and submit for final approval Amendment 1 to LPS 21 in relation to height limits and residential density as part of mixed use development in the commercial centre of Dunsborough. The City has not prepared an urban design study for adoption as a local planning policy as provided for under LPS 21. It has not taken steps to 'integrate the general urban design criteria espoused in the Western Australian Planning Commission (WAPC) policy entitled 'Liveable Neighbourhoods' into LPS 21 as a general guideline for the development of commercial centres.
91 The Tribunal notes the evidence that on Dunn Bay Road there is one development, the shopping centre to the east across Cyrillean Way that has been built consistently with what can be considered as 'main street' development. The Tribunal infers that this is a design option chosen by the owners of that development because there was no obligation or directive in LPS 21 or any other adopted policies, guides and strategies directing that design option and there still is none. It may be that this neighbouring development will be consistent with any guidelines on urban design for Dunsborough, should they ever be produced and adopted. It can also be seen from the comments on the applicant's revised design and the comments referred to in the table above, that the applicant was and is conscious of the City’s aspirations in this regard. The Tribunal returns, however, to the definition of a Convenience Store in LPS 21 and the particular constraints on buildings permitted for such a use. The proposed development must be considered in light of the adopted development controls currently in force.
92 The Tribunal has found that the City has adopted a document to inform itself what has to be done to implement the development and design guidelines suggested as appropriate for Dunsborough. The Tribunal does not accept, however, that the Commercial Strategy itself makes compliance with LPS 21 in whole or in part unnecessary; that the Commercial Strategy is a substitute or part substitute for Amendment 1 to LPS 21 or LPS 21 or that the Commercial Strategy is to be adopted in lieu of adopted local planning policies and guidelines to achieve the stated urban design outcomes by the imposition of controls on development.
93 At this point, it is noted that in March 2016 the City published a draft Local Planning Strategy (RB pages 1175 - 1232), which includes themes and comments relevant to Dunsborough as an 'activity centre'. It refers to expansion of the activity centre, including along 'main street' lines and to be accompanied by an 'Activity Centre Plan' and a 'Retail Activity Assessment'. The draft Local Planning Strategy also states that in relation to implementation of the same, that following adoption of the same and within five years thereafter, the City intends to adopt a yet to be devised and documented structure plan to guide development in the Dunsborough Urban Area. That is, the draft Local Planning Strategy has not yet been adopted by the City and no steps have been taken to devise and document, in final form, the further plans, strategies and guides identified within it as being necessary.
94 An applicant for development approval is entitled to look to and rely upon the documents that comprise the local planning scheme, and relevant adopted policies, guidelines and strategies, in making an application. The Tribunal in making its decision in this proceeding is directed to consider the planning framework as described above and adopted policies, guidelines and strategies. It is inconsistent with orderly and proper planning for the SJDAP to attempt to control development, not by adopted policies, guidelines and strategies, but by documents that essentially direct the City to take particular steps to prepare and adopt required policies and guidelines and relevant local planning scheme amendments. Such documents in the Tribunal's view do not fall within cl 67(b) of the deemed provisions. For this reason the Tribunal, although it has paid due regard to them, does not attribute significant weight to either the Commercial Strategy or the draft Local Planning Strategy.
City of Busselton Local Cultural Planning Strategy
95 The SJDAP's planning witnesses, Mr Algeri and Mr Needham, referred to the recommendations for town centres and clause 8.2.5.2 of the City of Busselton Local Cultural Strategy (Cultural Strategy) (RB pages 357 - 526) which deals with 'place making' and states (RB page 450):
• Main street planning: Main streets and urban commercial corridors are one of the most important ways of keeping towns and cities vital the goal is to look beyond mere aesthetics. To create a street where people want to be and are happy to patronise local businesses, we must make sure it is more than a thoroughfare for traffic, and focus on the ways we can transform a street into a place where people come first.
96 The Tribunal notes that the SJDAP's planning witness, Mr Needham and Mr Algeri both gave evidence that the proposed development and in particular the proposed works would be in conflict with this objective. Their opinions are largely based on their view that the proposed crossovers on Dunn Bay Road and Cyrillean Way and the hardstand accommodating fuel bowsers for fuelling of vehicles, would be orientated toward traffic and not pedestrians and would not be a place where people come first. That is an obvious consequence of conducting the activities that fall within the defined use classification of Convenience Store and which consequence is implicitly accepted when the Zoning Table and LPS 21 read as a whole permits such a use on the Land. Their evidence in the Tribunal's view goes to the suitability of the use classification for the Land, a matter that is determined by the terms of LPS 21 as referred to above.
97 The Tribunal observes that the above quoted statement in the Cultural Strategy is followed by recommendation 9 (RB page 451), which states:
That the review of the Local Planning Scheme and local planning policy outcomes address the issues of placemaking relating to public open space, town squares, main streets, cultural and heritage precincts, and other community spaces, and that project management and process control measures are implemented to ensure the enhancement of existing places of cultural significance, including incorporation of public art and cultural interpretation.
98 The Cultural Strategy final report is dated August 2011 and so predates LPS 21. LPS 21 does not address the issue of placemaking relating to main streets nor do the adopted local planning policies address this. The Tribunal is of the opinion that, as with the Commercial Strategy, the Cultural Strategy is a document that instructs the City on what it needs to do to address various issues, such as main street development, but is not in fact the document that directs or instructs that the development controls imposed over the scheme land. For the reasons referred to above the Tribunal is of the view that the Cultural Strategy is not to be afforded significant weight and considers that it is no more than a plan for a future plan that has not been implemented despite the publication of LPS 21 in October 2014 and some three years after the Cultural Strategy was created.
99 It is inconsistent with the orderly and proper planning of the locality to elevate the statements in the Cultural Strategy to the level of an adopted policy, guide or strategy controlling the development of the Scheme land, as it is merely a strategy to develop a policy, guide or strategy to control the development of scheme land in the future.
Liveable Neighbourhoods (WAPC)
100 The SJDAP's planning witnesses, Mr Needham and Mr Algeri, refer to the WAPC's Liveable Neighbourhoods policy (RB pages 10 - 187), citing particularly Element 7 which relates to 'Activity centres and Employment'. Element 7 discusses the preference for main street frontage retail outlets, an emphasis on facilitating and encouraging walking, parking behind buildings and 'building typologies that generate good street frontage'.
101 Mr Algeri gave evidence that, in his opinion, the principles in Liveable Neighbourhoods could be referred to because of the various references to 'main street' in what he considered to be the relevant applicable policy framework. Mr Needham said Liveable Neighbourhoods provides useful and relevant advice when assessing development applications where urban design is an important consideration.
102 The Tribunal notes, however, that both witnesses acknowledge that Liveable Neighbourhoods has been produced by the WAPC as an operational policy for the design and assessment of structure plans, as well as for the subdivision of new urban areas. This purpose can be found in the statements found in the 'Guide to Liveable Neighbourhoods' under the headings 'Where Liveable Neighbourhoods applies' and 'Status of policy'. In the Tribunal's view, Mr Algeri correctly acknowledged the Liveable Neighbourhoods policy was not intended for use in the assessment of standalone developments and Mr Needham correctly acknowledged that the Liveable Neighbourhoods policy was an important consideration for the City when developing the planned Activity Centre Plan for the town centre of Dunsborough. But, as stated above, that Activity Centre Plan has not been developed and as at the date of the hearing had not proceeded further than Mr Needham asserting (witness statement paragraph 37 and attachment 2 thereto) by way of an email from the WAPC that, as at 23 September 2016:
… the WAPC Chairman under delegated authority from the WAPC has supported the following recommendation:
'That the [WAPC] resolves, … that activity centre plans are required for the Busselton city centre and the Dunsborough town centre for the purposes of orderly and proper planning'.
103 Element 7 of Liveable Neighbourhoods must be viewed in the context of the purpose for which Liveable Neighbourhoods was adopted by the WAPC referred to above. The Tribunal does not accept that it is open to the SJDAP to rely on the principles in Liveable Neighbourhoods to assess this particular development application in circumstances where the City has failed to prepare an applicable structure plan or an activity centre plan to apply those principles. For these reasons, the Tribunal, having given due regard to the context of the content of Liveable Neighbourhoods, has concluded that Liveable Neighbourhoods should be afforded little weight as a development control document to refuse the application.
SPP 6.1 Leeuwin-Naturaliste Ridge Policy
104 Mr Needham gave evidence that in his opinion the proposed development would be in conflict with the State Planning Policy No 6.1 LeeuwinNaturaliste Ridge (SPP 6.1) (RB pages 1144 - 1174) because it would not contribute to the overall vision of good urban design and fostering a sense of community. He also stated that contrary to the intent of settlement patterns at cl 4.1 of SPP 6.1, the proposed development would not reinforce townscape principles, would detract from identity and sense of place, and be inconsistent with the vision of the community as a whole for the town centre.
105 The Tribunal considers these opinions to be based on Mr Needham's professional views on urban design and also on comments the City has received. The comments comprise statements made in a petition document which appears to bear the signatures of individuals who may or may not reside in Dunsborough (Attachment 5 to Mr Needham's witness statement). The authenticity of those signatures is not known and there was no attempt to prove the same. The truth as to the contents such as whether the individual described did or did not reside in the locality and therefore the relevance of those signatures was not proved nor was it attempted to be proved. No one was called to give evidence concerning the petition statements. The petition statements purportedly adopted by those who signed the same cannot constitute any form of expert evidence and the petition statement itself is a statement of opinion. The Tribunal concludes that no weight should be attributed to the petition in Tribunal proceedings which concerns the resolution of a dispute based upon the statutory framework, interpretation of the same and principles of planning because they are not relevant to the interpretation and application of the statutory framework including LPS 21 as a matter of law, notwithstanding the firmly held view of community members as to how development of the town centre should be controlled by the statutory framework.
106 The Tribunal finds that there is no basis for Mr Needham's comments and opinion in the wording of LPS 21, any formally adopted LPS 21 amendment or formally adopted local planning policy, guide or strategy. The City has set out what controls it should put in place for the future development of the scheme land, but has not yet completed, and in a number of instances, not started the process of bringing into existence the actual development control documents to give effect to a particular vision for and the particular townscape principles to apply to development in the Business Zone.
107 Policy LUS 1.2 of SPP 6.1 refers to urban development at Dunsborough being consolidated in accordance with the approved Dunsborough Town Centre Plan. Mr Needham gave evidence that in his opinion this is a reference to the 'Dunsborough Townscape Plan'. The Dunsborough Townscape Plan is dated October 2002 and is discussed further below. However, for the reasons referred to below, that Tribunal concludes that interpretation of the Dunsborough Townscape Plan is influenced by the Dunsborough Town Centre Conceptual Plan (RB page 883), adopted in January 2014, which leads, in turn, to the need to prepare site specific design and guidance documents.
108 The Tribunal is of the view that SPP 6.1 sets out what settlement design should incorporate but it does not provide a substitute for the absence of adopted specific planning policies, guides, strategies, designs and plans that control use of a specific lot and guide the determination of development applications. In any event the limitations of any such planning documents, if they existed, would be limited where the proposed use classification is permitted under LPS 21. Having given due regard to the SPP 6.1, the Tribunal concludes little weight should be attributed to the same in this proceeding.
SPP 3 Urban growth and settlement
109 The Tribunal considered State Planning Policy No SPP.3 Urban growth and Settlement (SPP 3) (RB pages 1090 1101) relied upon by the SJDAP. The Tribunal directed itself specifically to its content and purpose. In the introduction SPP.3 states:
This policy sets out the principles and considerations which apply to planning for urban growth and settlement in Western Australia. It is a broad sector policy under Statement of Planning Policy No.1: State Planning Framework. The policy will be implemented by more detailed policies on particular matters relating to planning for urban settlements that require additional guidance.
…
The overall aim of the policy is to facilitate sustainable patterns of urban growth and settlement by setting out the requirements of sustainable settlements and communities and the broad policy in accommodating growth and change. This policy should be taken into account in preparing regional and local planning strategies, and planning schemes and amendments, and given weight in statutory decision making in relation to urban growth and settlement.
110 Under the heading at 5.2 'Managing urban growth and settlement across Western Australia' SPP 3 provides (RB page 1097):
…
Local planning strategies are the main framework for planning at the local level enabling local government to plan ahead. They express the strategic vision, policies and proposals of the local government and reflect local needs and aspirations. They are also the key instrument for translating State and regional plans and policies to the local level and provide the rationale for the zonings and other provisions in local government town planning schemes.
…
The orderly planning of urban growth and settlement should be facilitated by structure plans, which should take into account the strategic and physical context of the locality, provide for the development of safe, convenient and attractive neighbourhoods which meet the diverse needs of the community, and facilitate logical and timely provision of infrastructure and services. Structure plans may consist of a hierarchy of plans ranging from broad district structure plans to more detailed plans for neighbourhoods and precincts[.]
111 Under the heading at 5.4 'Planning for liveable neighbourhoods' SPP 3 provides (RB page 1099):
…
The Liveable Neighbourhoods principles apply to the preparation and review of regional and district structure plans for new growth areas, local structure plans for new subdivisions, and in planning for the revitalisation or redevelopment of existing areas[.]
112 Finally, under the heading at 6 'Implementation', SPP 3 provides (RB page 1100):
Implementation of this policy will be through related statements of planning policy, regional strategies, local planning strategies and regional and local planning schemes. Implementation will also occur through the day-to-day process of decision-making on rezoning, structure plans, subdivisions and development applications, and the actions of other State agencies in carrying out their responsibilities.
113 The Tribunal has cited the above passages from SPP 3 to illustrate what it considers to be the context in which the various design principles for managing urban growth and planning for liveable neighbourhoods are set out in some detail in SPP.3.
114 The SJDAP's planning witnesses, Mr Needham and Mr Algeri, placed considerable emphasis on how they considered the proposed development would not satisfy a significant number of the design principles, required to be considered by SPP 3. However, the Tribunal concludes that in order for the design principles identified in SPP 3 to be applicable, they must be incorporated or specifically adopted into planning instruments that set out a planning strategy for a particular urban centre included in LPS 21 provisions and adopted local planning policies and guidelines. The daytoday decisionmaking on development applications, referred to above, is considered by the Tribunal to require that the design principles and controls to be applied are in place in properly adopted planning instruments and documents prepared for the particular location and site. Having given SPP.3 due regard, the Tribunal considers that little weight is to be attributed to it in the context of these proceedings.
City of Busselton Local Planning Policy 8A Car Parking Provisions
115 City of Busselton Local Planning Policy (LPP 8A) (RB pages 1233 1286), is a local planning policy applicable to the subject site and LPP 8A has been prepared and adopted as provided for in LPS 21. LPP 8A identifies standards that relate to the rate of on-site car parking bays to be provided in a development. The proposed development satisfies those provisions and there is no dispute between the parties on this matter.
116 LPP 8A also provides for cashinlieu contributions for required car parking bays not provided onsite. The SJDAP has submitted that because the proposed development will require the loss of two existing on-street parking bays on Dunn Bay Road (because of the required width of the crossover to accommodate refuelling tankers and customer vehicles), any approval of the DA should include a cash contribution. This condition is discussed in more detail below, but at this point the Tribunal concludes that it is not satisfied that such a contribution is warranted in circumstances in which the loss of the on-street car parking bays is consistent and implicit in the permitted use. In considering the provisions of LPS 21, as a whole, the Tribunal considers that in the context of the permitted use on the Land, the imposition of the cash in lieu condition is not reasonable.
Proposed Amendment 1 to LPS 21
117 The Tribunal agrees with the SJDAP that, as required under cl 67(b) of the deemed provisions, it is necessary to have due regard to proposed Amendment 1 to LPS 21 (Amendment 1).
118 The Tribunal notes that Amendment 1 does not change the 'permitted' designation of a Convenience Store use for scheme land within the Business Zone as provided for in LPS 21. Nor does it alter the 'discretionary' designation for multiple and grouped dwellings in the Business Zone of the Zoning Table of LPS 21. What Amendment 1 proposes is to add a residential density code in to the Business Zone of RAC3. If approved, this will allow additional height to residential development, in certain circumstances, where residential development is to be included to create a mixed use development in the Business Zone. Amendment 1 proposes to provide plot ratio bonuses where residential use is greater than 25% of the plot ratio area or where uses that provide informal social interaction, such as a restaurant or tavern, are proposed to be included in the mixed use development. In this respect, it is the one document that is proposed to implement certain recommendations from the Town Centre Conceptual Plan (referred to below), the Commercial Strategy and the Cultural Strategy.
119 The SJDAP planning witnesses, Mr Needham and Mr Algeri, gave evidence that the DA, on the basis of the revised plans and details, does not include residential or the uses considered appropriate to foster social interaction. In their opinion, the development would not facilitate a higher intensity of mixed use development and so would be incongruent and inconsistent with the planning direction proposed for the Business Zone in which the Land is located.
120 It does not follow that the application for development concerning a permitted use classification on the land, should be refused because the application does not include a discretionary element of residential development. Not taking up the incentive provided in Amendment 1 concerning height and plot ratio bonuses that would flow from a mixed use development proposal is not a proper basis to refuse the DA. Having paid due regard to Amendment 1, the Tribunal concludes that the provisions of Amendment 1 do not persuade the Tribunal that the DA, as revised, should be refused or should be the subject of specific conditions.
Dunsborough Town Centre Conceptual Plan
121 Mr Needham and Mr Algeri referred to the City's Dunsborough Town Centre Conceptual Plan, adopted 29 January 2014 (RB page 883) (Town Centre Conceptual Plan). Mr Needham also refers to the Dunsborough Townscape Plan, October 2002 (attachment 3, Mr Needham's witness statement). These two plans include notes, with the latter referring to establishing Dunn Bay Road as a main road with a uniform streetscape, incorporating shops and restaurants in future developments and developing a street frontage boundary along Dunn Bay Road.
122 In a report to the City on 13 March 2013 (page 89 of Mr Needham's witness statement), the adoption of the Town Centre Conceptual Plan is supported, and the report provides:
... there is currently no overall urban design guidance for the Dunsborough Town Centre. It is considered broad guidance … would be appropriate and should be developed. It is envisaged that a 'Dunsborough Town Centre urban design policy' would be developed covering not only the existing 'Business' zoned core of the Town Centre but also the adjoining area… Modified powers in relation to the preparation of Development Guide Plans set out in Scheme 21 which is expected to be finalised early in 2013 would allow such plans to be prepared for each identified area.
123 Mr Needham gave evidence in his witness statement that the powers were subsequently rendered redundant by the publication of the Government Gazette of the LPS Regulations.
124 The 2014 Town Centre Conceptual Plan identifies the Land as located in 'cell 1'. The legend provides that there is required 'sitespecific design guidance/integration'. The City has not prepared any guidance for the design of cell 1, or any other cell identified in the Town Centre Conceptual Plan. The only specific design guidance is that found in LPS 21, which was published in the Government Gazette in October 2014, with which the proposed use complies. In respect to the earlier Townscape Plan, there has not yet been developed a 'coastal theme' for guidance, and the Tribunal considers that in looking to what is required for developing the street frontage boundary along Dunn Bay Road, it must be directed by what the permitted uses include, which in this instance is the Convenience Store complete with petrol bowsers and the necessary access to them.
125 In relation to sitespecific design guidance referred to in the Town Centre Conceptual Plan, Mr Needham said the City has sought to develop such guidance. He referred to the email from the WAPC dated 23 September 2016, which was said to grant the City permission to develop an activity centre plan, as provided for in the deemed provisions for the Dunsborough town centre (attachment 2 to Mr Needham's statement). The Tribunal notes that in the email the WAPC resolution states that it was resolved, pursuant to Pt 5 of Sch 2 of the deemed provisions that 'activity centre plans are required for the Dunsborough town centre for the purposes of orderly and proper planning'. The City has only sought approval to prepare an activity centre plan. There is no such plan to date.
126 The Tribunal notes that cl 43(2) of the deemed provisions provides that where no activity centre plan has been approved by the WAPC, the decisionmaker may approve a development if satisfied that:
…
(a) the proposed development … does not conflict with the principles of orderly and proper planning; and
(b) the proposed development … would not prejudice the overall development potential of the area.
127 These tests relate to the matters to be considered under cl 67 of the LPS Regulations and the objectives of LPS 21, which are discussed below.
LPS 21
128 Clause 4.2.2 of LPS 21 sets out objectives and policies for the Business Zone. Two of these policies are considered relevant to the proposed development by both of the SJDAP's planning witnesses. These are:
(a) To encourage the provision of retail and other business services and associated development to add to the strength and diversity of existing centres.
…
(f) The consolidation of land to assemble larger land parcels suitable for integrated development or redevelopment is encouraged and supported. Fragmentation of land, unless it is part of an overall plan for integrated development or redevelopment, will generally not be supported.
129 The SJDAP's planning witnesses, Mr Needham and Mr Algeri, were of the opinion that the proposed development would be inconsistent with these two policies because:
a) adding another petrol outlet to the two already in the town was not adding to 'diversity'; and
b) the proposed use would result in fragmentation because it would break up the desired main street development form along Dunn Bay Road.
130 As stated above, having expressly provided that a Convenience Store is a permitted use in the Business Zone, albeit subject to the balance of the provisions of LPS 21, the City as the author of the same has determined that the Land is suitable for that use and implicitly that it meets its intentions and expectations of the operation of the policies and objectives relevant to the Business Zone as provided for in cl 4.2.2. Further, cl 4.2.2 policy (b) directs that the it is not the role of planning to interfere with market forces and that what is intended by LPS 21 and the application of provisions thereof in the Business Zone is to result in 'minimal intervention by the local government'. LPS 21 expressly provides that apart from 'providing guidance to the private sector in terms of future development opportunities and requirements' as provided for on cl 1.6(c)(iii) of LPS 21, it is not intended to empower the decision maker to interfere or question the economic need or desirability of the use. The Tribunal concludes as a matter of interpretation of LPS 21 that, in this proceeding, it is not the role of the planning framework to limit or direct when or if there are too many premises with the same use.
131 In relation to 'fragmenting' the desired main street character, as pointed out above, 'main street' has not yet been incorporated into any design guidelines or LPS 21 provisions that can be applied to the proposed development, although there are strategies, policies and guidelines to include them in the statutory planning framework. LPS 21 requires, by definition, that in the case of a Convenience Store, the building comprise no more than a 300m² net lettable area. The Dunn Bay Road frontage of the site is 49 metres and so it is not possible or desirable to have the Convenience Store building extend between the proposed crossover and the Cyrillean Way corner. This is an example where the specific definition of the permitted defined use classification may not meet the letter of the Business Zone objectives and policies on a plain reading of the same, but none the less the use classification has been approved for that zone. As stated, it is not a proper interpretation of LPS 21 that the provisions of the same, and in particular the provisions of cl 4.2.2, be utilized to undermine the express provisions thereof as provided by the Zoning Table and all relevant clauses related thereto. The discretion to refuse the DA remains but not on the grounds that the use classification and all implicit necessary modifications to the site arising from that use classification do not meet all other aspects of LPS 21. The Tribunal concludes that the objectives and policies of cl 4.2.2 of LPS 21 do not provide a basis for refusing the proposed development.
Matters to be considered under cl 67 of the deemed provisions
132 The planning witnesses listed the matters from cl 67 of the deemed provisions that they considered relevant to the proposed development. The Tribunal agrees they are relevant. The matters already dealt with in the discussion above are:
(a) the aims and provisions of this Scheme … ;
(b) … any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c) any approved State planning policy;
…
(e) any policy of the Commission;
…
(g) any local planning policy for the Scheme area[.]
133 Those subclauses of cl 67 of the deemed provisions still to be considered will now be addressed in turn.
134 Clause 67(b) of the deemed provisions require the Tribunal to pay due regard to:
the requirements of orderly and proper planning[.]
135 The Tribunal considers that this item is significant in the determination of this matter and is best addressed after all the other items requiring consideration have been discussed. See below for the discussion on orderly and proper planning under its own heading.
136 Clause 67(m) of the deemed provisions requires the Tribunal to pay due regard to:
the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development[.]
137 The planning witnesses acknowledged that, other than the Dunsborough Centrepoint development on the opposite corner of Cyrillean Way and Dunn Bay Road, there is no other development in this section of Dunn Bay Road that is built up to the street with parking to the rear, consistent with 'main street' design principles. The Land is one of only two largely vacant sites at the western end of Dunn Bay Road. It was put to the Tribunal that the proposed 'standalone' development would not enable integration with the development of adjoining land and the desired 'pedestrian friendly and activated environment through to Cape Naturaliste Road'.
138 Mr Kotsoglo, the expert planning witness called by the applicant was of the opinion that the proposed development, based on the revised plans and details, did locate the building near the Dunn Bay Road frontage and because of the outdoor seating provided for the coffee kiosk, to be operated from the window facing Dunn Bay Road, the proposed development did contribute to a 'pedestrian friendly and activated environment'. The SJDAP expert witnesses, Mr Algeri and Mr Needham, gave evidence that in their opinion the proposed development was unacceptable because it did not provide for pedestrian movement across the site to adjoining land uses and did not provide a continuation of buildings up to and along the footpath with windows to 'activate' the street.
139 There was discussion before the Tribunal of potential residential development as part of a future mixed use development on the lot adjoining the site to the west which is in the Business Zone (currently held by Eldorado Pty Ltd). This is referred to in the discussion of cl 67(y) of the deemed provisions. The Tribunal notes that there is no evidence that there is currently an application before the City for residential development on the lot to the west in any event. The Tribunal refers to and adopts the statements made in respect to noise below, especially in respect to the principle referred to in St Patrick's Community Support Centre and City Of Fremantle [2007] WASAT 318 (St Patrick's) at [57] and relevant to this proceeding. The expert evidence of all parties and their examination and cross-examination at the final hearing, did not reveal how pedestrian activity on the land to the west would provide for integration of pedestrian movement through that development or any development on the lot to the west of the Land or the north of the Land. There is an absence of any guidance of how the aspiration of pedestrian movement, other than on existing footpaths and perhaps via an extension of Clark Street and Cyrillian Way, is to be achieved incorporating privately owned developments in this western or northern area of Dunn Bay Road in any event.
140 Clause 67(n) of the deemed provisions require the Tribunal to pay due regard to:
the amenity of the locality including the following
(i) environmental impacts of the development;
(ii) the character of the locality;
(iii) social impacts of the development[.]
141 The matters considered hereunder are relevant to the submissions by Eldorado Pty Ltd as well to the application generally. In relation to environmental impacts of the proposed development, the parties and their witnesses discussed noise, odour and the separation distances in the Environmental Protection Authority (EPA) Guidance Statement No 3 (attached to the witness statement of Mr Kotsoglo).
142 In relation to noise, the Tribunal had before it evidence from one noise expert, Mr Tim Reynolds, called as a witness by the applicant. Mr Reynolds concluded that the proposed development would comply with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations). He added that if a noise sensitive usage was developed on the lot to the west of the Land, then to comply with the regulatory requirements, a 1.8 metre high fence would need to be constructed and any refuelling tanker delivering fuel to the Land could be restricted to day and evening periods of refuelling. Mr Reynolds said this would also be applicable to any noise sensitive development on the lot adjoining the site to the north as well. The existing noise sensitive development to the west of the land a restaurant will, in the Tribunal's view be protected by conditions to realise the proposals made by Mr Reynolds.
143 Mr Reynolds was examined further on the potential of the site to the west to be developed with a multi-story mixed use development, with multiple dwellings at the upper levels. There was comment that dwellings higher than ground floor level might be subject to excessive noise levels, even with the fence erected.
144 The Tribunal has considered possible noise impact on future neighbouring land use, keeping in mind the following principle from St Patrick's at [57]:
The concerns raised by the residents are valid; however, the range and extent of non-residential activities within this locality unequivocally 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 Holding 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 non-residential uses cannot expect the same degree of amenity as would be found in a homogeneous residential suburb". The Tribunal concurs with these findings and considers this to be the case in this instance[.]
145 In this matter, the discussion was about potential future residential development on adjoining lots. Those lots are in the Business Zone. If, in the future, the City puts in place development controls and guidelines that result in main street developments that encourage pedestrian movement and 'vitality' then that will have an influence also on future residential uses. If part of a mixed use, the residences will be above commercial uses as well as adjacent to nonresidential use.
146 The Tribunal concludes that approval of the proposed development on the Land subject to conditions such as appropriate fencing and control of delivery vehicle times is both reasonable and arises from the proposed development. The Tribunal cannot anticipate what controls might be needed for any potential sensitive uses on the adjoining lots to the north and west of the Land. The design of future development on adjoining sites must have regard to zoning and location, consistent with the principle referred to in St Patrick's cited to above, and the impact of the same on the amenity and the potential level of amenity of any future residences on those adjoining lots. As a Convenience Store is a permitted use in the zone, as are a number of other non-residential uses, any landowner of adjoining lots is taken to be conscious of this fact when considering how to use its land.
147 The Tribunal has concluded that, subject to conditions suggested by Mr Reynolds being imposed, noise is not a factor that would warrant refusal of the development.
148 Odour or fumes was raised as an issue because the use includes the sale of petroleum products and where this occurs on the site, it might affect neighbours (see: Eldorado Pty Ltd's submissions paragraphs 20 49).
149 The SJDAP did not call any witnesses on this issue, the applicant called Mr Ronald Visser, an expert in the storage and handling of hydrocarbons. Mr Visser said the development must comply with the licencing requirements of the Dangerous Goods Safety (Storage and Handling of Nonexplosives) Regulations 2007 (WA) (DGS Regulations). These requirements, in summary, dictate that the requirement for approved bowsers with protective bollards to dispense fuel, a hardstand designed to contain any spilt fuel, safe and unobstructed entrances and exits to enable people to leave the site and the operator ensuring that persons on the site are not exposed to dangerous goods at concentrations that exceed maximum concentrations in the applicable standard. These measures, when designed are subject to a review that considers emergency plans, risk assessment, security, placarding, lighting as well as firefighting. Should the proposed development be found to be noncompliant, the site would not be endorsed for licencing pursuant to the DGS Regulations and without a licence the use would not be able to sell fuel.
150 In a letter dated 14 December 2016 to Puma Energy (attached to Mr Visser's witness statement), Mr Visser referred to Australian Standard AS/NZS 60079, which is said to provide guidance on explosive gas atmospheres and hazardous zones and provides the tools to delineate the extent of hazardous zones. Mr Visser's interpretation was that there would be a hazardous zone of petrol vapours to about four metres from bowsers and 1.5 metres from the vent stack of an underground tank. Mr Visser said that from experience, he did not expect fuel odour to extend much beyond these hazardous zones.
151 Mr Visser was cross-examined on not having qualifications to conduct odour impact assessments or assessments for the purposes of the Noise Regulations. He acknowledged that he had not considered the proposal relative to the EPA Guidance Statement No 3 on separation distances for service stations, but believed that the EPA Guidance Statement No 3 was reflected in the hazardous zone distances.
152 Mr Kotsoglo referred to a service station in Subiaco near commercial and residential uses and his understanding that there were no complaints about odour. The Tribunal was also reminded of the existence of the two other service stations in Dunsborough. The Tribunal was not provided with any empirical evidence about odour from other service stations or convenience stores or any other evidence to discredit the experience of Mr Visser, that odour generally did not extend beyond the respective hazardous zones.
153 As the proposed development must be the subject of a grant of a licence pursuant to the DGS Regulations and must comply with hydrocarbon storage, handling and dispensing regulations in order to operate as a Convenience Store as defines, the Tribunal concludes that if a licence is so granted the neighbouring lots are unlikely to be impacted by odour from the proposed use.
154 EPA Guidance Statement No 3 sets out separation distances between industrial and sensitive land uses (both the current 2005 edition and the draft 2015 revision were referred to by the parties' planning witnesses). A Convenience Store is not listed in the EPA Guidance Statement No 3