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[2007] WASAT 49
State Administrative Tribunal (WA)
2007-02-22
Original judgment source is linked above.
(1) The development shall be carried out in accordance with the plan entitled Proposed Tavern Application drawn by Oldfield Knott Architects Pty Ltd Job No 04013 Drawing No PO1 Rev F dated 18 January 2007.
(2) The maximum number of patrons permitted within the tavern is not to exceed 108 patrons at any time.
(3) Hours of operation are from 8 am to 12 midnight Monday to Wednesday, 8 am to 1 am (next day) Thursday to Saturday, and 10 am to 10 pm Sunday, but with no service of liquor prior to 12 midday on any day.
(4) Hot and cold food must be available to patrons at all times during trading hours. In particular, a regular full menu must be available at all times up until 10.30 pm Monday to Saturday and 10 pm Sunday. From 10.30 pm Monday to Saturday, an extensive snack menu must be made available which, upon request by the City's Building and Health Services, must be approved by it.
(5) No live music is to be played from the premises.
(6) Car parking spaces are to be provided as follows:
(i) Nine of the existing car parking spaces on site for full time use by staff and patrons of the tavern;
(ii) Six car parking spaces for use by staff and patrons of the tavern during times when the commercial tenancies at 77 Rokeby Road, 479 Hay Street and upstairs offices are not operating.
(7) The one car bay allocated to the approved 42 square metre office upstairs is to be made available to the approved tavern at all times when the office is not operating.
(8) The maximum eating and drinking area in the tavern at 71 - 75 Rokeby Road, Subiaco is limited to 92 square metres of which:
(i) a maximum of 68 square metres may be used at any time that the tavern is operating; and
(ii) the 24 square metres located towards the rear of the tavern as marked on the approved plans may only be used at times when the commercial tenancies at 77 Rokeby Road, 479 Hay Street and upstairs offices are not operating; and
(iii) the 34 square metres located towards the front (east) of the building as marked on the approved plans is to permanently include tables and chairs during trading hours; and
(iv) tables and chairs are to be provided for at least 70 patrons at all times during trading hours, including tables and chairs for at least 30 patrons in the area referred to in (iii) above.
(9) A Management Strategy for the premises is to be approved by the City and implemented to the City's satisfaction prior to the operation of the tavern and thereafter maintained to the City's satisfaction. The Management Strategy is to contain, but is not limited to:
(vii) access to taxi rank, complementary taxi calling service;
(ix) cleaning of the site and the public area around the site;
(x) management of the restricted seating area located towards the rear of the tavern as marked on the approved plans during times when the commercial tenancies at 77 Rokeby Road, 479 Hay Street and upstairs offices are operating; and
(10) The sale of liquor for consumption off site is not permitted.
(11) All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City's stormwater drainage system unless otherwise approved.
(12) Existing ground levels at lot boundaries are to remain unaltered or, alternatively, any fill or excavation required as a result of any alteration of these levels is to be retained. Details of any proposed retaining walls are required to be submitted for approval prior to commencement of the development. Development approval may also be required for any proposed retaining walls greater than 0.5 metre in height above natural ground level.
(13) All infrastructure in the road reserve adjacent to and bounding the development site is to be protected from damage for the duration of the construction of the development, and at the conclusion of construction, reinstated to the condition that existed prior to the construction of the development commencing. The manner in which the infrastructure is to be protected and retained is to be to the satisfaction of the Director Technical Services.
(14) The proposed dry store and washing up area currently being used by the existing Chutney Mary's Indian Restaurant is to be relocated to the satisfaction of the City's Building and Health Services.
(15) Fire hose reels and fire hydrants are required to be installed to service the entire building, to the satisfaction of the City's Director of Development Services.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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16 The Tribunal notes that a previous development application for use of the northern two-thirds of the site and the area of Chutney Mary's Indian Restaurant as a tavern was ultimately refused by the Supreme Court, because the application could not be approved in the exercise of planning discretion in consequence of a lack of sufficient car parking bays so as to comply with TPS 4: see City of Subiaco v Busen Pty Ltd [2005] WASC 230. However, it is common ground in this review that the proposed tavern use does not require any more car parking bays than the approved restaurant use of the site and that, if agreed conditions are imposed on the grant of development approval, the number of car bays available in the car park at the rear of the building satisfies the requirements of the Scheme.
33 Mr LA Tsaknis, counsel for the City, submits, correctly, that a properly adopted planning policy, such as the Liquor Policy, is a fundamental element in, or a focal point of the decision-making process: Fryer and City of Subiaco [2006] WASAT 199 at [56] citing Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 at [75]. However, "the existence of such a 'policy' is not intended to replace the discretion of the [decision-maker] in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it", although "the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application": Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24] per Barker J.
45 In Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [59], the Tribunal identified four principal matters for consideration in determining what weight should appropriately be given to a draft amendment to a planning instrument. The four considerations are:
(2001) 115 LGERA 373
(2002) 122 LGERA 433