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[2007] WASAT 156
State Administrative Tribunal (WA)
2007-06-21
Mr P
Original judgment source is linked above.
(i) The development shall be carried out in accordance with the plans drawn by Taylor Robinson entitled "0556 Darch neighbourhood centre drawings number 01 - 07" dated May 2006 and the "Landscape Plan drawn by Plan E" dated May 2006 except as varied by the following conditions.
(A1) Lot 100 and Lot 9028 Kingsway, corner Ashdale Boulevard, Darch shall be amalgamated and a copy of the new certificate of title to be forwarded to the City of Wanneroo for its records, prior to the first stage of development being occupied.
(B1) Prior to the issue of a building licence, the landowner shall make a contribution to the City of Wanneroo for the provision of arterial roads, public open space and associated facilities (including administrative costs) to service the East Wanneroo Structure Planning Cell No 6 in accordance with Pt 10 of the City of Wanneroo District Planning Scheme No 2.
(B2) The upgrading of Kingsway to a full urban standard in accordance with the specifications set out in the City of Wanneroo "Guidelines for the Development and Subdivision of Land" where it abuts the application area prior to the first stage of development being occupied. These works should include, but not be limited to, the removal of any redundant crossovers, the filling and grading of the northern verge to achieve a 2% positive grade, the provision of stormwater drainage facilities, street lighting and a dual use path along the northern verge.
(B3) The western 16 metres of Lot 9028, which is required for Carlingford Drive extension from Athenny Way to Kingway, plus associated 6 metre by 6 metre corner truncations at both Kingsway and Athenny Way, shall be dedicated as a public road free of cost and without payment of compensation prior to the first stage of the development being occupied.
(B4) The Carlingford Drive extension (including drainage and dual use paths) from Athenny Way to Kingsway shall be constructed in accordance with the City of Wanneroo's specification prior to the first stage of the development being occupied.
(B5) The abutting portions of the Ashdale Boulevard and Athenny Way verges shall provided with on-street car parking bays and otherwise be paved to the full width (with associated street trees) and at a 2% positive grade to a standard approved by the City of Wanneroo prior to the residential component of the development first being occupied.
(B6) Detailed engineering drawings are to be prepared indicating the proposed construction works for conditions B2 to B5 above and lodged with the City of Wanneroo. All works shall be undertaken in accordance with the engineering drawings approved by the City of Wanneroo.
(B6) The parking bays, driveways and points of ingress and egress shall be designed in accordance with the Australian Standard for Off Street Parking (AS2890). Such areas shall be constructed, drained and marked prior to the development first being occupied and thereafter maintained to a standard approved by the City of Wanneroo.
(B7) A proposal for the disposal of the stormwater drainage currently disposed of within the drainage easement located over Lot 9028 must be lodged with the City of Wanneroo for approval and subsequently carried out.
(B8) A stormwater drainage system with a storage capacity sufficient to contain a 1:100 year storm event within a 24 hour duration shall be provided on-site prior to the development first being occupied. The system shall thereafter be maintained to a standard approved by the City of Wanneroo.
(B9) A dedicated pick up/drop off area shall be provided within the shopping carpark area prior to stage 1 of the development first being occupied, to a maximum of two bays, and in close proximity to an entrance point within the main street.
(B10) Disabled car parking bays shall be provided at the rate required under the Australian Standard for Off Street Parking (AS2890) and shall be distributed across the site in locations convenient to the building entrances approved by the City of Wanneroo.
(B11) The car parking areas shall be provided with one shade tree for every four bays prior to the development first being occupied. The trees shall be located within tree wells protected from damage by vehicles and maintained to a standard approved by the City of Wanneroo.
(B12) Service vehicle manoeuvring to and within the site shall be provided in compliance with the Australian Standard for Off Street Parking Pt 2 - Commercial Vehicle Facilities (AS2890.2). A plan indicating service vehicle sweep paths shall be provided to the City of Wanneroo for approval prior to the submission of a building licence application.
(C1) The design being amended to provide for a 600 square metre community building (with associated development such as car parking and servicing) on a community purpose site of a maximum area of 2000 square metres to be set aside as a separate lot pending acquisition by the City of Wanneroo as part of the East Wanneroo Infrastructure Contribution arrangements. Reciprocal rights of carriageway and parking shall be mutually granted between the community centre and the neighbourhood centre sites.
(C2) The main street car parking bays, vehicle accessways and external row of car parking bays on the community purpose land shall be constructed by the proponent in conjunction with the commercial component of the development.
(D1) The landowner shall enter into a legal agreement with the City of Wanneroo prior to stage 1 of the development being occupied, outlining arrangements necessary to facilitate continued public access over the public space, and providing for City of Wanneroo events to be held within the space at no charge with the exception of any direct costs incurred by the landowners. The legal agreement shall be prepared by the City of Wanneroo's solicitors and all costs associated with the preparation of the agreement shall be met by the landowner.
(D2) The landowner shall enter into an easement in gross in favour of the public at large pursuant to s 196 of the Land Administration Act 1997 (WA). The easement shall cover all car parking areas, pedestrian paths and vehicular accessways. The easement shall be prepared to the City of Wanneroo's requirements by the City of Wanneroo's solicitors and registered on the title of the subject land prior to the relevant stage of development first being occupied. It shall make provision for the closure of the land, should it be required, subject to the approval of the Council in each case. All costs associated with the preparation of the easement shall be met by the landowner.
(E1) Detailed plans of the main street and adjacent public space showing details of:
to the satisfaction of the Director of Planning and Development shall be submitted prior to the issue of a building licence.
(E2) The angled parking layout in the main street will comply with AS2890.
(a) the number, species and location of vegetation proposed to be planted;
(d) materials proposed to be used in non-vegetation landscaping;
to the satisfaction of the Director of Planning and Development shall be submitted prior to the issue of a building licence. Such landscaping shall be developed in accordance with the approved plans and shall be maintained by the applicant.
(F1) The hours of operation of the tavern shall be:
(b) from 7 am to midnight on Friday and Saturday; and
Half an hour prior to closure on each trading day, the external licensed areas are to be vacated of customers and closed for service.
(F2) Food for offer must be available to patrons of the tavern at all times during trading hours.
(F3) A suitable sound engineering design to be carried out to ensure that, in conjunction with the acoustic engineer's report, any amplified music is delivered in a manner that ameliorates any noise emissions. Unless otherwise agreed by the City of Wanneroo, the recommendations of the sound engineer shall be implemented in the development. All external speakers are to be switched off when the alfresco areas are closed half an hour before the close of trading.
(F4) A Management Strategy for the tavern premises is to be submitted to the City of Wanneroo for approval prior to the operation of the tavern and thereafter the tavern shall be operated in accordance with the approved Management Strategy. The Management Strategy is to address the following matters:
(a) the number of licensed security staff present within hours of operations after 6 pm;
(e) patron control (including staff training) and external surveillance;
(f) access to taxi service and complementary calling service;
(g) lighting in and around the perimeter of the tavern premises;
(h) cleaning of the site and the public area around the site; and
(i) servicing times and service vehicle route for the tavern premises in terms of deliveries and pick up.
(G1) A pedestrian and cyclist permeability plan shall be submitted to and approved by the City of Wanneroo prior to the submission of the building licence application. This plan shall indicate how it is intended to provide generous, safe, clear and direct pedestrian and cyclist paths to the site and between car parking areas and key destinations within the site. The plan shall make provision for disabled access and indicate pathway grades, detail of crossing points and any proposed protruding service connections or other projections.
(G2) Pedestrian pathways on the site shall be provided with appropriate sightlines and pedestrian crossing facilities. Vegetation adjacent pathways where sightlines may be affected shall be planted and maintained to a maximum height of 450 millimetres from the pathway level. Protruding services or other obstructions shall not be located within the pedestrian paths without the prior approval of the City of Wanneroo. Car bays adjoining pedestrian pathways shall be provided with wheel stops to prevent vehicle overhang.
(G3) Parking areas, pedestrian spines the main street and adjacent public space shall be well lit with "white light" to encourage safe after hours use. Lighting shall be designed and installed so as not to cause nuisance or safety problems.
(G4) Bicycle parking facilities (number and design) shall be provided in accordance with the Australian Standard for Bicycle Parking Facilities (AS2890J-1993) and Austroads' Guide to Engineering Practice Pt 14: Bicycles at convenient locations along the main street approved by the City of Wanneroo, prior to the development first being occupied.
(G5) End of trip bicycle facilities including showers, change rooms and lockers shall be provided for access by centre staff in accordance with the requirements in Austroads' Guide to Engineering Practice Pt 14: Bicycles.
(H1) At least one shopping trolley collection area for each two rows of car bays must be provided in a mid block location. The design of the shopping trolley collection areas must be approved by the City of Wanneroo, and must be sufficient to contain the trolleys, protect them from damage by vehicles and be sign posted for easy identification by shoppers.
(H2) A recyclable bin enclosure shall be provided with dimensions of at least 8 metres by 3 metres. The enclosure must be located in a position approved by the City of Wanneroo that can accommodate service vehicle access.
(H3) Service areas shall be screened from view of public areas. No storage is allowed outside the service areas.
(H4) All services (such as air conditioning plant and compressors) shall be located away from public areas. All services and service yards shall be screened from view of streets and other public areas, including car parking areas, by an enclosure in keeping with the style and materials of the adjacent building. Roof mounted equipment such as air conditioning plant and antennae shall be screened from view of the street and other public areas, including car parking areas, by the roof form or parapets.
(I1) Detailed design of the residential component of the development does not form part of this approval and shall be subject to a separate development application
(I2) Prior to the titles being created for the residential component of the approved plans, the applicant shall:
(a) lodge a caveat against the Certificate/s of Title to the land requiring any development upon this land to incorporate measures (for example: double glazing or similar specifications) to attenuate potential noise penetration;
(b) lodge a notification on the certificate/s of title for the urban residential development alerting potential purchasers of the proximity to commercial uses within the surrounding area that may lead to emission of noise beyond normal day trading hours from the adjacent commercial businesses.
(J1) An acoustic consultant's report shall be submitted to the City of Wanneroo with the building licence application for each relevant stage. The purpose of the report is to determine what noise attenuation measures are necessary to ensure that any noise emissions comply with the requirements of the Environmental Protection (Noise) Regulations 1997 (WA). The report shall also indicate recommended mitigation measures for the residential component to minimise the risk of noise nuisance from the commercial component of the development. Unless otherwise agreed by the City of Wanneroo, the recommendations of the approved acoustic consultant's report shall be implemented in the development.
(J2) Revised plans addressing the various conditions of approval shall be submitted to and must be endorsed by the City of Wanneroo prior to the submission of a building licence application.
(J3) At least one public telephone shall be provided (subject to Telstra agreement) within the main street area in a place approved by the City of Wanneroo prior to the development first being occupied. The telephone shall be maintained unless otherwise agreed in writing by the City of Wanneroo.
(J4) All signage is excluded from this approval. An overall signage strategy for the shopping centre shall be submitted to and approved by the City of Wanneroo prior to the submission of a building licence application. All signage should be integrated with the building. Building elevations shall include integrated signage panels sufficient for each external tenancy.
(J5) A construction and staging management plan must be submitted to the City of Wanneroo for approval prior to the commencement of construction detailing how it is proposed to manage:
(a) road construction works required as part of this approval;
(b) pedestrian, vehicular and service access as well as adequate car parking both during construction and at each stage of development;
(c) the location of the site office, delivery and storage of materials and equipment to the site;
(d) the parking arrangements for the contractors and subcontractors;
(e) operation times including delivery of materials; and
(f) any other matters likely to impact on the safety and amenity of the surrounding area.
(J6) A non-sacrificial anti-graffiti coating shall be applied to external shopping centre walls. In the event of any graffiti being applied to these areas, then steps are to be taken to remove it as soon as possible.
(a) any application for costs and supporting submissions shall be filed on the other party by 5 July 2007;
(b) the responding party shall file and provide to the other party its submission in reply by 19 July 2007;
(c) the moving party shall file any submissions in reply by 26 July 2007:
(d) unless either party specifically requests an oral hearing on costs, the question of costs is to be decided entirely on written submissions.
I certify that this and the preceding [144] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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53 Mr Slarke referred the Tribunal to Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124 where the Tribunal found that only incidental aspects of a development should properly be the subject of a condition which requires the preparation of some plan, detail or specification for approval by the decision-maker and then require that plan to be implemented. Mr Slarke submitted that a condition cannot lawfully defer for later consideration a non-incidental aspect of a development, or leave open the possibility that a development carried out in accordance with that consent will be significantly different from the development for which the application was made.
75 The Tribunal in Busen Pty Ltd and City of Subiaco [2007] WASAT 49, Fazio and City of Fremantle [2006] WASAT 169 and the former Town Planning Appeals Tribunal Sistaro Pty Ltd & Anor and City of Joondalup [2003] WATPAT 43 has considered the issue and found that the style of operation and the management regime of licensed premises can have a significant effect on the amenity impacts associated with such facilities.
90 In Springmist Pty Ltd and Shire of Augusta Margaret River [2005] WASAT 143, the Tribunal determined that where an applicant can demonstrate that the actual parking demand generated by the development would be satisfied by the provision of the proposed number of shared parking bays, a variation to the parking provisions of the Scheme could be considered. In this instance, a convincing argument has been put forward by the applicant in support of the shared parking arrangements in respect to this particular development. The Tribunal is of the view that the applicant has demonstrated, through Mr Levey's evidence, that the actual demand generated by the proposed development is likely to be satisfied by the provision of 355 shared car parking spaces.