Town Planning and Development Act 1928, s 2(1)

Brown Falconer Group Pty Ltd v City of Mount Gambier & Ors (2) [1998] SAERDC 535

Joint Property Ownership Pty Ltd v City of Subiaco (1998) 97 LGERA 269

Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211

Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316

City of Swan v Taylor [2005] WASCA 88

Joint Property Ownership Pty Ltd v The City of Subiaco, unreported; SCt of WA (Parker J); Library No 980055; 12 February 1998

Low v Swan Cove Holdings Pty Ltd [2003] WASCA 115; (2003) 127 LGERA 36

Re Minister for Planning; Ex parte City of Canning [1998] WASCA 339; (1999) 101 LGERA 284

Re Town Planning Appeal Tribunal; Ex parte Environmental Protection Authority [2003] WASCA 248; (2003) 27 WAR 374

1 TEMPLEMAN J: The City of Subiaco ("the City") appeals against a determination by the Town Planning Appeal Tribunal delivered on 10 December 2004 in which the Tribunal granted development approval to the respondent, Busen Pty Ltd ("Busen"), in respect of premises at 67 - 73 Rokeby Road, Subiaco.

2 The matter came before the Tribunal by way of an appeal from the decision of the City's Executive Council ("the Council"), on 27 July 2004, to refuse Busen's application for approval. Relevantly for present purposes, the Council's reasons included:

"Contrary to clause 70 of Town Planning Scheme No 4... inadequate carparking has been provided."

3 On Busen's appeal from that aspect of the Council's decision, the Tribunal held that although Busen proposed to provide fewer parking bays than were required by the City's Town Planning Scheme No 4 ("the Scheme"), a discretion existed to approve the proposal; and that this discretion should be exercised in Busen's favour.

4 In this appeal, the City contends that the Tribunal erred in law in a number of respects in making its determination. Busen also contends that the Tribunal erred in law but that its decision should be upheld on other grounds.

5 Before examining the rival contentions, it will be convenient to summarise the proposal which is the subject of Busen's application to the City.

6 The application was made in respect of a site at 61 - 73 Rokeby Road, Subiaco, which is at the intersection of Rokeby Road and Hay Street. At present, an Indian restaurant known as Chutney Mary's trades from the ground floor of 67 - 69 Rokeby Road. It has the benefit of a restaurant licence. The ground floor of the premises at 71 Rokeby Road is used as a shop but has been granted approval for use as a restaurant. The ground floor premises at 73 Rokeby Road are used as an unlicensed café. The upper floors of all these premises are used currently as offices.

7 Busen's proposal is to amalgamate all of the premises at 67 - 73 Rokeby Road and to operate them as a wine and coffee house pursuant to a category A liquor licence which it will seek to have issued under the Liquor Licensing Act 1988. The approximate cost of carrying out the works required to implement the proposal is said to be $490,000.

8 The application dealt extensively with car parking considerations. The car parking bays proposed originally are not the same as those now in issue. However, the application recognised that there would be a shortfall in the number of parking bays required by the application of the Scheme. Busen therefore sought to have the City exercise a discretion under cl 70(6) of the Scheme, and to approve the development on the basis that at least 75 per cent of the Scheme requirements would be met. I shall refer below to this subclause and to other relevant provisions of the Scheme.

9 Clause 22 is the opening provision in Pt 4 of the Scheme which deals with development approval. Clause 22(1) provides:

"In order to give full effect to the provisions and objectives of this Scheme, all development, including a change in the use of land, except as otherwise provided in clause 23 of the Scheme, requires the prior approval of the Council in each case. Accordingly, no person shall commence or carry out any development, including a change in the use of any land, without first having applied for and obtained the development approval of the Council pursuant to the provisions of this Part." [my emphasis]

10 By referring to a development as including a change in use of land, cl 22 reflects the definition of development as it is used in the Scheme. Although not defined in the Scheme, the term is given the same meaning as it has in the Town Planning and Development Act 1928. There, "development" is defined in s 2(1) to mean:

"the development or use of any land, including any demolition, erection, construction, alteration of or addition to any building or structure on the land and the carrying out on the land of any excavation or other works and, in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, also includes any act or thing that -

(a) is likely to change the character of that place or the external appearance of any building; or

(b) would constitute an irreversible alteration of the fabric of any building."

11 It is clear from the plans of the subject premises - as they are now, and as they would be if the proposal was implemented - that the works will include at least some alterations so as to create a large bar and restaurant area incorporating what is now a shop (71 Rokeby Road) and Alto's Café (73 Rokeby Road). In addition, existing storerooms on the first floors of 71 and 73 Rokeby Road are to be converted to male and female toilets.

12 In my view, these works fall within the definition of "development". I therefore respectfully agree with the finding by the Tribunal that:

"... upon any reasonable analysis... what is involved in the present application is a change of use but it also involves development." (Reasons, par [63])

13 Counsel for Busen submitted that, having regard to cl 23 of the Scheme, the development is not such as to require approval. So far as relevant, cl 23 provides:

"The development approval of the Council is not required for the following development of land:

...

(j) Development for non-residential purpose involving building works that do not materially affect the external appearance of the building and do not increase the plot ratio of the building ..."

14 The evidence is that the building works would not materially affect the external appearance of the subject premises. The only relevant works involve the replacement of windows which presently open, with non-opening windows containing thicker glass. This is required as a noise-abatement measure.

15 The term "plot ratio" is defined in the Scheme to mean:

"The ratio of the floor area of a building to the area of land within the boundaries of the lots on which that building is located ..."

16 I accept that, based on that definition, the proposed development does not involve any change in the plot ratio. I accept, therefore, that cl 23(1)(j) of the Scheme applies in this case. However, that is not the end of the matter. As I have noted above, cl 22(1) requires all development, including a change in use, to be approved.

17 It seems clear that this was the approach taken by the Council. In the minutes of the various meetings of Council dealing with this matter, the application was treated only as an application for change of use. But because approval is required by cl 22(1) in order to give "full effect to the provisions and objectives of this Scheme", such approval cannot be given unless the car parking requirements set out in Pt 6 of the Scheme are satisfied. It is therefore necessary to consider those provisions.

Part 6 of the Scheme

18 The principal provision in Pt 6 is cl 70. It is not necessary to set out cl 70(1), (2) or (3). They are the provisions by which the number of car parking spaces required in any given circumstances are to be calculated.

19 Clause 70(4), (5) and (6) are crucial to this appeal. They are as follows:

additional parking spaces shall, unless otherwise approved by Council, be provided to meet the requirements of the Scheme.

(5) When a development of any land is enlarged or partly or wholly redeveloped, parking spaces to meet the requirements of the Scheme shall be provided in respect of the new development.

(6) Clause 28 shall apply to the requirement to provide carparking spaces under this Part subject to the following:

(a) notwithstanding clause 28 the Council cannot grant development approval in respect of a development where a concession is sought as to the number of carparking spaces to be provided which exceeds 25% of the number required under this Part."

20 In my view, cl 70 is intended to provide for every kind of development. Subclauses (1) - (3) apply to a new development. Subclause (4) applies where there is to be a change or intensification of use; and subclause (5) applies where there is to be a change in the fabric of a building.

21 Although, as noted above, the term "development" incorporates "use", I do not think cl 70(5) was intended to apply to changes of use, because cl 70(4) applies in that situation.

22 It is to be noted that cl 70(1) - (3) and (5) do not contain any provision by which the Council is permitted to relax the car parking requirements of the Scheme. Clause 70(4) does contain such a provision: the car parking spaces required by the Scheme are to be provided "unless otherwise approved by Council".

23 The Tribunal regarded that as a "specific discretion": see Reasons [63]. I respectfully disagree. That is because, in my view, the only discretion available to Council is that arising under cl 70(6). That is a discretion which may be exercised in respect of a non-complying application in accordance with cl 28.

"Except for development in respect of which the Residential Planning Codes apply, if a development is the subject of an application for planning approval and does not comply with a standard or requirement prescribed under the Scheme, the Council may, despite the non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit."

25 However, cl 70(6) imposes a limitation on the cl 28 discretion. The limitation is that the Council cannot grant development approval where a concession is sought in respect of more than 25 per cent of the number of car parking spaces required "under this Part".

26 In my view, since cl 70(4) falls within "this Part", the limitation applies as much to that provision as it does to the others. Indeed it would be an odd result if that were not so. For example, an intensification of a use might involve an increase in parking requirements far greater than a partial redevelopment. That being so, there appears to be no logical reason for allowing the Council a general discretion to waive parking requirements in the former and only a limited discretion in the latter.

27 In my view, therefore, the issue which now falls to be determined is whether Busen is proposing to provide at least 75 per cent of the car parking spaces required under the Scheme in order to enable the Council to exercise its discretion under cl 70(6).

Have sufficient car parking bays been "provided"?

28 It is common ground that the application of the relevant provisions of the Scheme produces a requirement for 45 bays: and that 75 per cent of that number should be taken as 34 for present purposes.

29 Busen contends that it has provided at least 36 car parking bays (and arguably 38) made up as follows:

3 (and arguably 5) bays by way of a cash payment in lieu

31 The Tribunal dealt with this aspect of the matter at par [69] of its Reasons in the following way:

"69. The 18 bays are arrived at by the following method:

(a) there are 8 parking bays which are the subject of existing leases of 67 and 71 Rokeby Road;

(b) there are 3 parking bays under a conditional agreement undertaken on assignment of the lease by the Appellant for 73 Rokeby Road; and

(c) there is an agreement with Mr Chan on behalf of his two sons who are the owners of the subject property for an additional 7 parking bays."

32 The Tribunal went on in par [71] to find as a fact that the 18 bays were available. The basis of that finding appears to be the evidence of Mr Chris Chan, the father of the owners of the properties at 67 - 73 Rokeby Road. Mr Chan gave evidence to the effect that the owners had agreed to lease 18 car parking bays to Busen for the term of its proposed lease of the premises. The evidence was that those car parking bays had never been allocated to any of the individual tenants: and that there was no basis for any retrospective allocation under the Scheme. No doubt for that reason, the Tribunal held that the proposal to permit 18 car parking bays to be leased to Busen was "primarily... an issue between the owners of the properties and the respective tenants": see Reasons, par [73].

33 In this appeal, the City contends (as it did before the Tribunal) that Busen could not provide the 18 car parking bays on the site because they had been required to obtain approval for a development of the site in 1979.

34 Evidence was given by Patrick Gersch, an employee of the City, that there was a planning approval relating to what was then lots 30 to 35 and what was said to be "suburban lot 203" pursuant to an application in March 1979. The approval was given in April of that year. However, neither the application nor the formal approval could be produced. Further, the plan relating to the application and the approval was of such poor quality as to be almost unreadable.

35 Mr Gersch, who produced the relevant documents, had no direct knowledge of the 1979 approval. He was, however, cross-examined about the contents of the documents. It appeared from Mr Gersch's evidence that whatever the development was, "a total of 18 bays were retained to serve the existing shop, office and residential development at the corner of Hay Street and Rokeby Road" (AB 1216).

36 Mr Gersch said in his evidence that the only approval required in 1979 was in relation to some façade modifications and the removal of "various little outbuildings". There was no approval relating to car parking: nor was there any reference to the allocation of car parking bays: see AB 323 - 324.

37 In my view, it is not necessary to determine the precise scope and extent of the 1979 approval. That is because, on the application of the principle to which Judge Bowering referred in Brown Falconer Group Pty Ltd v City of Mount Gambier & Ors (2) [1998] SAERDC 535, at [28], an application to vary that approval is to be implied in Busen's present application. In other words, an approval of the present application would carry with it an approval to vary the parking arrangements (if any) existing as a result of the 1979 approval so as to permit Busen to provide the 18 bays referred to above.

38 It is, of course, the case that the agreement made between Busen and the present owners of the subject premises in relation to the 18 car parking bays would displace the tenants: they would have to park elsewhere. However, I do not think that detracts from the proposition that in making the agreement, Busen has "provided" the car parking bays in question.

39 At 500 Hay Street, close by the subject site, there is a public car park containing some 200 bays. The car park was provided as part of a development involving the Ace Cinema, showrooms, a restaurant and a hardware store. Approval for that development was given in September 1995.

40 In 1997, Secure Parking (WA) Pty Ltd ("Secure Parking") applied to the City to use the car parking bays provided for the cinema complex as a commercial car park. That application was refused.

41 Secure Parking then appealed to the Minister for Planning. In a letter dated 29 December 1997, the Acting Minister informed Secure Parking that:

"... the Minister has determined that the use of the parking spaces on the subject lot did not require planning approval and, therefore, the planning application and hence the appeal were not necessary under the provisions of the Scheme." (AB 1279 - 1280)

42 The Acting Minister went on to say that he had been asked by the Minister to make clear his view that:

"a fee-paying car park on the site is only possible if all of the bays (with the possible exception of the underground section) are available at all times to patrons of the other users on the lot. The underground carpark is required by the condition of development to be made available to the public, which may have wider connotations as to use."

43 On 17 June 1998, Secure Parking applied again to the City for the approval of a fee-paying car park at 500 Hay Street.

44 On 30 July 1998, the City approved the proposal subject to a number of conditions. Those conditions are not relevant because they were the subject of a successful appeal by Secure Parking to the Minister for Planning. In a letter dated 28 April 1999, the Acting Minister for Planning, writing on behalf of the Minister, informed Secure Parking that:

"The City having clearly indicated that it is prepared to agree to a fee paying carpark on the site, it seemed to the Minister that the more appropriate approach to the manner in which the fee paying carpark should be operated would be for it to form the subject of some agreement between the City and yourselves. This would allow for changes to be proposed and approved by the parties before their implementation so that responses to changing circumstances can be made within a short period of time."

45 For these reasons, the Minister decided to delete the conditions imposed by the City in its approval of 30 July 1998 and to replace them with the following condition:

"(a) Satisfactory arrangements being made between the proponent and the City by way of a legal agreement prepared at the proponent's cost to determine the manner in which the fee paying carpark and non fee paying carpark are to be used, the periods for which some parking will be free of cost or subject to reimbursement of fees paid to those visiting the businesses on the land and the bays which may be available for long-term parking including all day parking all of which may be varied by agreement between the parties. The agreement to include provision for an independent arbiter to resolve future disagreement on issues arising within the agreement." (AB 1294 - 1296)

46 It is common ground between the parties that no such legal agreement has ever been made as required by the Minister for Planning.

47 It is against this background that Busen has entered into an agreement with Secure Parking to provide 15 car parking bays at 500 Hay Street for the exclusive use of the proposed development.

48 In dealing with this aspect of the matter, the Tribunal noted that Busen had not placed reliance on cl 71 of the Scheme which permits the joint use of parking spaces by two or more owners in the circumstances there set out. Neither has any reliance been placed on cl 71 in this appeal. The Tribunal held:

"78. It does seem to me that there is strength in this aspect of the Appellant's argument. It is true that where the expression "car parking shall be provided" appears in clause 70 there is no requirement that the parking be provided on the subject property.

79. Such an interpretation is by no means inconsistent with the nature of the present application, its location generally and its specific location within the Town Centre precinct of the City of Subiaco.

80. This should also be understood against the background of the evidence of Ms Pickford, who agreed that there was no shortage of parking within the general Town Centre area for patrons wishing to use the premises on the subject property.

81. I am therefore satisfied that what the Appellant proposes is open to it within the provisions of TPS4 and represents a matter to be addressed in terms of any conditions to attach to the approval to be granted." (AB 46 - 47)

49 In my view, with respect, the Tribunal erred in reaching this conclusion. The correct analysis, I think, is that until the City enters into an agreement with Secure Parking as to the manner in which the car park at 500 Hay Street may be used, it is not open to Secure Parking to dedicate any bays to the exclusive use of Busen's development. Put another way, I do not think it open to Busen to contend that it has "provided" the 15 car parking bays in question unless the City agrees with Secure Parking that it will accept those arrangements.

50 Busen contends that because the car parking spaces at 500 Hay Street were not provided in order to meet the requirements of any development approval but were provided as part of the separate approval of the use of 500 Hay Street as a "fee paying car park", it would be open to Busen to enter into the arrangements it has with Secure Parking. Busen relies on the decision of Parker J in Joint Property Ownership Pty Ltd v City of Subiaco (1998) 97 LGERA 269. In that case, Parker J applied Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 in holding that use of the subject land in a way that was not incidental or subordinate to the approved use was impermissible.

51 In my view, given that the land at 500 Hay Street has been approved for use as a fee paying car park, Secure Parking would not be acting in breach of that approval by entering into the arrangement it has with Busen. That, however, is a different point: it has nothing to do with the question whether Busen has "provided" the 15 car parking spaces for the purpose of its application.

"An applicant for development approval may, if the Council so agrees, make a shortfall cash payment to the City in lieu of the provision of all or any of the number of carparking spaces required by the Scheme."

53 The clause goes on to set out the basis on which a cash payment may be made. Clause 75(6) then provides:

"The monies received by the City under this clause shall be paid into a reserve fund and shall only be used:

(a) for the provision of public parking;

(b) for reimbursing the City for any expenses incurred for the purpose of paragraph (a) including loan repayments."

54 According to the minutes of Council on 23 and 30 March 2004, cash in lieu payments had been made in respect of three car parking bays for the proposed development site. The minutes record these as "existing" credits which are said to have been "gained from previous development approvals" (AB 602). This appears to be a reference to payments about which Mr Gersch gave evidence. In his statement to the Tribunal, he referred to a payment made on 22 January 1988 for two car bays at 73 Rokeby Road. Mr Gersch referred also to a payment made on 9 April 1990. I assume, from the fact that Mr Gersch included this in his statement, that it relates to the subject land. However, neither Mr Gersch's statement nor the receipt annexed to it identifies the relevant approval (AB 1221 and 1298).

55 The City contends that because the cash in lieu payments were made and accepted in relation to previous development approvals, they cannot be regarded as applicable to the present application. Having regard to the decision in Brown Falconer Pty Ltd v City of Mount Gambier & Ors (2) (supra), I do not think that is correct. It must be accepted that when a cash payment is made in lieu of a car parking space, the effect is to create a notional space which must be regarded as attached to the subject property. That being so, I consider it would be open to the Council to treat the three car parking spaces notionally created for the previous development as now available for the development proposed by Busen. That is because the present application impliedly includes an application to vary the previous approvals. For that reason, the three cash in lieu parking spaces could now be regarded as having been "provided" by Busen for the purposes of its present application. That, I think, is a matter for the discretion of the Council.

56 This issue was raised in the appeal pursuant to Busen's notice of contention, to which I shall refer below. It was not an issue which it was necessary for the Tribunal to consider, having regard to its decision that Busen's application could be approved in the exercise of the "specific discretion" contained in cl 70(4) of the Scheme, without bringing any cash in lieu car parking spaces into account.

57 The Tribunal did, however, express the view that if the Council did not agree to accept cash in lieu of car parking spaces, "such a matter could not be forced upon (the City)": Reasons, par [85].

58 I respectfully agree. Accepting that the Tribunal stood in the shoes of the Council, I do not think it open to require Council to accept cash in lieu payments when cl 75(1) of the Scheme permits cash in lieu of car parking only if the Council so agrees.

59 I am supported in that view by the provisions of cl 75(6) which require cash payments in lieu of car parking to be paid into a reserve fund which may be used only for the provision of public parking and for reimbursing the City for any expenses incurred for that purpose. Thus, the decision whether or not to accept cash payments in lieu of car parking must depend on matters such as the existence or state of any reserve fund, the feasibility of providing public parking, the cost of so doing and the nature and extent of any expenses so incurred.

60 In my view, these are matters which should be within the exclusive jurisdiction of the Council. In other words, cl 75(1) does not give rise to a general discretion to permit an applicant for development approval to make cash payments in lieu of providing car parking spaces.

61 I have reached the conclusion that this appeal should be allowed. That is because Busen can be taken to have provided only 18 car parking bays. It is not, therefore, open to the Council to exercise any discretion in Busen's favour. In reaching this conclusion, I have had regard to the arguments presented in support of the notices of appeal and contention. I now set out the various grounds with my observations thereon.

The Tribunal erred in law in finding that the 15 car bays at the Ace Cinema site did not have to comply with cl.71 of the Town Planning Scheme ("the Scheme") and in failing to consider whether those bays complied with cl.71(3). The Tribunal should have found that the 15 car bays had been provided, and were continuing to be provided, in order to meet the requirements of a development approval granted under the Scheme in respect of the Ace Cinema site and, as a result, the bays could only be provided in accordance with the Scheme on a joint use basis. The Tribunal should have found that the requirements of cl.71(3) concerning joint use had not been met on the evidence.

62 As I have noted above, Busen has not relied on cl 71 of the Scheme in this appeal. In any event, the 15 car parking spaces at the Ace Cinema site were not said to have been provided on the basis of shared use, but exclusive use pursuant to an agreement with Secure Parking. I do not accept, therefore, that it was necessary for the Tribunal to consider the requirements of cl 71(3).

The Tribunal erred in law in finding that cl.70(6) of the Scheme does not qualify the discretion in cl.28. The Tribunal should have found that cl.70(6) qualifies the discretion in cl.28.

63 For the reasons given above, I consider this ground of appeal is made out.

The Tribunal breached the rules of procedural fairness in holding that the discretion provided for by cl.28 of the Scheme was not confined by cl.70(6) in circumstances where the respondent conceded that was the position in argument, the Tribunal acknowledged that concession, and in consequence, the appellant did not make further submissions on the issue.

The Tribunal erred in law in finding that there was a discretion under cl.28 and cl.70(4) of the Scheme to grant a concession as to car parking spaces that exceeded 25% of the car parking spaces required by the Scheme. The Tribunal should have found that by reason of the terms of cl.70(6) there was no such discretion and the development approval must be refused.

65 This ground adds nothing to ground 2 and does not require separate consideration.

The Tribunal erred in law in finding that the 18 car bays at the premises the subject of the development application could be counted in considering compliance with the Scheme. The Tribunal should have found that:

(a) the development approval sought a variation of earlier planning approvals which required the 18 car bays to be provided in respect of other users;

(b) the development approval could not be granted to the extent that it varied the earlier planning approvals in a manner that would not comply with the Scheme;

(c) the attribution of the 18 car bays to the respondent would cause the earlier planning approvals not to comply with the Scheme;

(d) alternatively to (a), (b) and (c), on a proper construction of cl.70 of the Scheme the car parking that could be provided to meet the requirements of cl.70 excluded car parking that was already being provided to meet the requirements of the Scheme, irrespective of whether the car parking was required to be provided under earlier planning approvals.

66 I have held that the 18 car bays at the premises should be regarded as having been provided by Busen pursuant to the arrangements made with the owners. That being so, I would not uphold ground 5.

Alternatively to ground 5, in deciding that the development approval should be granted, the Tribunal erred in law in failing to take account of the fact that, under the car parking arrangements proposed by the respondent, the 18 car bays at the premises being used by existing tenants would no longer be available to those tenants and their customers. The Tribunal was required to take account of the fact that the 18 car bays would no longer be available to the existing tenants and their customers as a matter relevant to:

(a) the exercise of the discretion whether to reduce the number of car parking spaces to be provided under cl.28 of the Scheme as limited by cl.70(b);

(b) the orderly and proper planning of the locality under cl.27(4) of the Scheme; and

(c) the potential impact of the development on the amenity and character of the locality under cl.27A(2)(a) of the Scheme

and should have done so.

67 Having regard to my conclusion that the shortfall in car parking spaces was more than 25 per cent, it was not open to the Tribunal to exercise any discretion in favour of Busen. This ground does not, therefore, fall to be considered.

As to the application of cl.70(5) of the City of Subiaco Town Planning Scheme No. 4 ("Scheme") to the proposed development:-

(a) to the extent that the Town Planning Appeal Tribunal ("Tribunal") determined that cl.70(5) of the Scheme was applicable to the proposed development, the Tribunal erred in law and in its interpretation of cl.23(1)(j), cl.70(4) and cl.70(5) of the Scheme and ought to have made the findings set out below; and

(b) alternatively, to the extent that the Tribunal determined that cl.70(5) was not applicable to the proposed development, the Tribunal's determination ought also to be affirmed on the alternative grounds set out below.

Having found that the physical works forming part of the proposed development were limited to "some internal alterations to facilitate the physical amalgamation of the tenancies", the Tribunal ought to have found that:-

(c) pursuant to clause 23(1)(j) the physical works were exempt from the requirement for approval under the Scheme;

(d) approval was only required under the Scheme for the change of use of the premises from "Restaurant" or "Shop" to "Tavern"; and

(e) accordingly, the requirement for carparking bays under the Scheme fell to be determined only pursuant to cl.70(4), not cl.70(5).

68 While I have accepted the propositions set out in par 1(c) and (d) above, I have not accepted that there was a general discretion arising under cl 70(4) of the Scheme. This ground therefore fails.

As to the issues raised in grounds 5 and 6 of the Amended Grounds of Appeal:

(a) to the extent that the Tribunal determined that the allocation of 18 on-site carparking bays to the appellant would mean that other tenancies in the building would be in breach of their respective planning approvals, the Tribunal erred in law in its interpretation of the planning approvals for the other tenancies and ought to have made the findings set out below; and

(b) alternatively, to the extent that the Tribunal determined that the 18 on-site carparking bays were available to meet the requirements of the Scheme, the Tribunal's determination ought also to be affirmed on the alternative grounds set out below.

The Tribunal ought to have found that the earlier planning approvals did not allocate any of the 18 on-site carparking bays to the other tenancies, so that the allocation of the 18 on-site carparking bays to the appellant would not result in the breach of any of the planning approvals.

69 I have accepted that none of the 18 on-site car parking spaces had been allocated to any of the existing or previous tenancies. That finding was, I think, implicit in the Tribunal's decision, with which I have agreed, that Busen should be taken to have provided the 18 spaces.

The Tribunal erred in law in its interpretation of cl.75 of the Scheme to the extent that the Tribunal found it could not impose upon the City of Subiaco a requirement to accept a cash payment in lieu of the provision of carparking bays. The Tribunal ought to have found that:-

(a) it was open to the Tribunal, exercising the powers of the City of Subiaco under cl.75 of the Scheme, to accept a cash payment in lieu of the provision of carparking bays; and

(b) on the evidence of witnesses on behalf of both Busen Pty Ltd and the City of Subiaco, it was appropriate in the present case to accept a cash payment in lieu of the provision of carparking bays.

70 I have not accepted that cl 75 of the Scheme would permit the Tribunal to impose on the City a requirement to accept a cash payment in lieu of providing car parking spaces.

71 Counsel for Busen submitted (in par [66] of his written outline) that:

"The overwhelming weight of evidence before the Tribunal was to the effect that it was appropriate, if necessary, for a cash payment to be made in respect of any shortfall in the number of carparking spaces required in respect of the proposed development."

72 Even assuming that submission to be factually correct, having regard to my conclusion in relation to this aspect of the matter, the extent of the support for Busen's proposal seems to me to be irrelevant. That is because, on the view I take it is not open to the Council to exercise any discretion in Busen's favour.

Generally, in relation to the provision of carparking bays, the Tribunal's determination that the proposed development satisfies the requirement of the Scheme for 45 carparking bays (by way of 18 on-site carparking bays, 15 carparking bays provided at the Ace Cinema site and the exercise of either the general discretion under cl.28 of the Scheme or the discretion contained in cl.70(4) when read with cl.70(6) in relation to the remaining 12 carparking bays), ought also to be affirmed on either of the alternative grounds that:-

(a) the proposed development satisfies the requirement of the Scheme for 45 carparking bays by way of:-

(i) an exercise of the discretions under cl.28, cl.70(4) or cl.70(5) of the Scheme to an extent of 25% of the number of carparking bays required, being 11 carparking bays;

(iii) 15 carparking bays provided at the Ace Cinema site;

(iv) a minimum of 2 carparking bays in respect of which, according to evidence on behalf of the City of Subiaco, cash payments had previously been accepted in relation to the premises the subject of the proposed development in lieu of the provision of carparking bays; and

(v) to the extent that one or more of (i), (ii), (iii) or (iv) above is not available to Busen Pty Ltd, either, or a combination of:-

(1) the exercise of the discretions under cl.28, cl.70(4) or cl.70(5) of the Scheme to an extent greater than 25% of the number of carparking bays required; or

(2) a cash payment in lieu of the provision of carparking bays, as set out in paragraph 3 above,

or

(b) having found that "there was no shortage of parking within the general Town Centre for patrons wishing to use the premises on the subject property", even if the particular proposal for the provision of carparking bays suggested by Busen Pty Ltd for the purposes of the hearing before the Tribunal was not available to it for any reason, the provision of carparking bays as required by the Scheme is a matter that is capable of being dealt with by way of a condition of planning approval.

73 I have dealt with the matters raised in ground 4(a) above which therefore needs no further comment.

74 As to ground 4(b): I do not accept that the provision of car parking bays can properly be made the subject of a conditional planning approval. As is clear from the text of the Scheme, development approval cannot be granted unless the parking requirements of the Scheme have been satisfied. That being so, an approval which is conditional upon the satisfaction of car parking requirements could not be a proper approval.

75 Given my view that Busen has provided only 18 car parking spaces, this number being rather less than 50 per cent of the requirements of the Scheme, it seems to me that the appropriate course is simply to allow the appeal and set aside the determination of the Tribunal. It would be pointless to remit the matter to the Tribunal (now the State Administrative Tribunal) because on the view I take, there is no discretion which could be exercised in Busen's favour so as to justify the grant of development approval. That discretion would fall to be exercised only if the Council decided to accept the arrangements made between Busen and the owners of 500 Hay Street (as part of the "legal agreement" required by the Minister) and to agree that the three cash in lieu bays referred to above should be regarded as attaching to the proposed development site.