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[2017] WASAT 94
State Administrative Tribunal (WA)
2017-06-29
Original judgment source is linked above.
37 Consequently, the Council made no varied or substitute decision under s 31(2)(b) or s 31(2)(c) of the SAT Act.
38 The Tribunal, at a directions hearing held on 20 December 2016, granted leave to amend the application for review so that the application was in respect of the applicant's revised without prejudice proposal dated 24 October 2016, including the explanatory and supporting commentary dated 25 October 2016 (applicant's revised proposal) and made programming orders for the recommencement of the final hearing of the matter.
39 The final hearing was reconvened on 28 February 2017 and continued for a half day on 10 March 2017.
40 During the course of the hearing on 28 February 2017, it became apparent to the Tribunal that a number of modifications had been made to the proposed building that did not relate to condition 14 or its underlying purpose of ameliorating amenity impacts. It would appear that the modifications to the plans had transpired during the course of the conferral of acoustic experts.
41 The applicant, at the hearing on 10 March 2017, conceded that the following modifications (extraneous modifications) did not fall within the scope of the application for review as they did not relate to the requested variation to condition 14:
42 The respondent in closing submissions acknowledged that the proceedings did not have the effect of opening up the entire approval but submitted there was scope to either refuse the modifications as requested or approve the modifications subject to conditions. The respondent accepted that the revised plans include a significant number of changes to the plans that were approved by Council on 24 March 2015 and that many of those changes have no connection with condition 14 or its underlying purpose of ameliorating amenity impacts.
43 The respondent argued that cl 7.9 of the Scheme does not set out the nature or extent of the decisionmaker's powers in determining a request made under that provision and as the clause enables requests to be made, it must implicitly confer, on the decisionmaker, power to approve that request. The respondent submitted that the clause does not purport to limit the power to reconsider an approval to simply either approving or refusing the precise variation of the condition sought by the applicant but rather confers a discretion on the decisionmaker to consider matters more broadly and to view the underlying purpose for which the condition was imposed. The respondent's reasoning for this position is that the condition can be connected with other conditions such that a change in one necessitates a change in other conditions or a variation of the condition may give rise to other consequential issues which may require the imposition of additional conditions.
44 The respondent also relied on s 27 of the SAT Act, which provides as follows:
(1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3) The reasons for decision provided by the decision-maker, or any grounds of review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
45 The respondent submitted that under s 27(1) of the SAT Act, the ability for the Tribunal to consider new material whether or not it existed at the time that the decision was made and therefore, the Tribunal can consider the additional information about the proposed operational development, including the commencement of the activities as early as 5 am, which emerged from the applicant's evidence at the hearing.
46 The respondent says that it is relevant to consider the underlying purpose for which condition 14 was imposed, which was the amelioration of adverse amenity impacts on the nearby residential properties that may be caused by activities undertaken as part of the approved uses. What has transpired through the assessment of the acoustic consultants is that a number of amelioration measures associated with noise issues have now been proposed by the applicant that do not expressly relate to the hours of 5 pm to 9 pm. The respondent urges the Tribunal to take the approach that the contemplated changes are appropriate because they assist in reaching the correct and preferable decision and the underlying purpose of condition 14 which is to regulate the amelioration of any adverse amenity impacts. The respondent does not support the applicant's position to delete the modifications as set out in [41] as it considers that this would leave the proposal in an unsatisfactory state because matters associated with noise and odour remain unresolved and the basis for addressing those matters is unclear. The respondent argued that the issue of noise, whether it be between 5 pm to 9 pm or outside of those hours, is an issue that needs to be before the Tribunal.
47 The respondent was particularly concerned about the exhaust fan for the bakery, which had formed part of the proposal to which the acoustic experts had considered and relied on in making their assessment and recommendations as to the suitability of noise arising from the proposed operation. The respondent was concerned that the deletion of the fan results in a situation where the applicant has not disclosed on what basis the bakery component of the kitchen is now intended to be ventilated nor the position of any extraction fans. The respondent submits that this situation leaves open the question of how the applicant intends to treat noise, in respect to this element, both in terms of compliance with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) but also in terms of impact on the amenity on the adjoining property. The respondent argues that the treatment of or elements relating to noise should not be left to later approval but be considered as part of the application before the Tribunal.
48 The real issue is that the Tribunal granted leave to amend the application for review at a time when the Tribunal was unaware that the elements listed in [41] formed part of the applicant's revised proposal. At that time, the Tribunal did not turn its mind to whether the modifications were a substantially different application as opposed to an amended application. By analogy with the cases in this area when considering a fresh application, it is not open to the Tribunal to purport to review a substantially different application: Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71; Yaksich v Town Planning Board (Unreported; Town Planning Appeals Tribunal; Appeal No 15 of 1979); 19 December 1979); Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269
49 Further, the powers conferred by s 29 of the SAT Act are conferred on the Tribunal 'when dealing with a matter in the exercise of its review jurisdiction'. The 'matter' which the Tribunal deals with when an application is brought under s 252(1) of the PD Act, is a review of the responsible authority's decision. In this case, the decision of the City to, in effect, refuse to vary condition 14 of the planning approval determined on 24 March 2015.
50 Section 29(9) of the SAT Act provides as follows:
To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision-maker.
51 Therefore, it is only the review of the decision in respect of the refusal to vary condition 14 that falls for determination by the Tribunal. Section 29(9) of the SAT Act is specifically designed to make that position clear.
52 The question of whether the modifications were a substantially different application as opposed to an amended application is a question of degree. The matter for determination by the Tribunal is whether condition 14 should be modified to allow for trading hours to be extended from 5 pm to 9 pm. As identified by the respondent, this involves consideration of whether the extended trading hours give rise to unacceptable adverse amenity impacts on the surrounding residential area. The acoustic experts, as a result of their conferral, have recommended a number of ameliorative measures to the proposal that directly relate the extension of the trading hours. These include:
53 While a number of these modifications will also assist in ameliorating noise impacts outside of the requested extended trading hours, the purpose of these measures are to ensure that the noise arising from the activities associated the extended trading hours are compliant with the Noise Regulations.
54 The extraneous modifications and associated ameliorative measures bear no relationship with the extended trading hours and are elements that relate to matters that have not been considered by the original decisionmaker and are clearly matters that are different in essence from the matter that was before the decisionmaker. The Tribunal finds that the inclusion of the extraneous modifications is a substantially different application.
55 Although it might be preferable to consider the extraneous modifications so that the outstanding issues relating to this development are dealt with, however, it is not open for the Tribunal to do so. Further, it does not matter whether the Tribunal looks at the clause in TPS 6 as it stood or as it is now (cl 77 of the deemed provisions), because neither version gives the power to the Tribunal, on review, to consider a substantially different application that has not been considered by the respondent.
56 So although the Tribunal's order of 20 December 2016 gave leave to amend the application for review such that the applicant's revised proposal was the application under review, given the Tribunal had no power and given the parties have now had the opportunity to address this issue, the Tribunal finds it is appropriate that the Tribunal officially amend the order dated 20 December 2016, so that the proposal under review is the applicant's revised proposal deleting all references to the extraneous modifications as identified by the applicant at [41].
57 At the commencement of the final hearing in March 2016, the following four issues were identified for determination in relation to this matter:
58 However, given the progress of this matter, the issues have somewhat merged and as such, the Tribunal will address issues 1 and 3 separately and issues 2 and 4 together.
Whether the proposed extended trading hours, being 5 pm to 9 pm, seven days a week, gives rise to unacceptable adverse amenity impacts on the surrounding residential area in terms of noise, traffic and nuisance
59 The Tribunal received witness statements from four nearby residents: Mr Robert Anson (who resides at No 4 Banksia Terrace); Mr Nich Hajigabriel (who resides at No 334 Mill Point Road); Ms Adele Johnson (who resides at No 331A Mill Point Road) and Mr David Juers (who resides at No 2 Banksia Terrace) seeking the retention of the trading hours of 7 am to 5 pm as per condition 14 of the planning approval granted on 24 March 2015. All four neighbours raised amenity concerns relating to noise associated with the operations of the commercial activity, privacy, parking (particularly in regards to onstreet parking), increased traffic and security issues. Both Ms Johnson and Mr Juers also referred to the impacts arising from operating hours as opposed to trading hours and Ms Johnson raised the issue of odour arising from the kitchen operations.
60 The Tribunal, pursuant to s 242 of the PD Act, also received written submissions from both Ms Johnson and Mr Juers in respect to the applicant's revised proposal.
61 The Tribunal had the benefit of expert evidence from Mr Peter Simpson, a town planning consultant, Ms Rebecca Ireland, an acoustical consultant called on behalf of the applicant, Mr Tom Hockley, a town planning consultant and Mr Terry George, an acoustic engineer, called on behalf of the respondent.
62 It is clear from the evidence given by both the town planning and acoustic experts that the extended trading hours sought by the applicant has the potential to give rise to unacceptable noise impacts on the residential properties located at No 331A Mill Point Road and No 2 Banksia Terrace (adjoining residential properties).
63 It was agreed by the acoustic experts that there are a variety of sources that could generate noise emissions that may impact on the amenity of the adjoining residential properties. These included mechanical plant, deliveries to the premises, noise associated with the use of the rear car parking area and noise associated with patrons entering and leaving the premises.
64 Mr Hockley initially held the view that in the absence of any supporting acoustic evidence, the proposal to extend the trading hours would have the potential to unreasonably impact on the amenity of the adjoining residential properties and should not be allowed.
65 Ms Ireland completed a number of acoustical assessments of the subject land in respect to noise (15110257-01 dated 25 February 2016; 15110257-02 dated 15 March 2016; and 15110257-3 dated 11 May 2016). According to Ms Ireland, the results of the noise assessments show that the proposed Shop, éé/Restaurant can comply with the assigned noise level associated with the Noise Regulations at nearby residential receivers subject to certain ameliorative measures being implemented. Ms Ireland concluded 'that based on a quantitative amenity assessment criteria, the proposed Shop, Café/Restaurant will comply with the methodologies and noise criteria and the site will not cause unacceptable impact on the acoustic amenity of nearby residential premises'.
66 Mr George (Lloyd George Accoustics) had the opportunity to review Ms Ireland's assessments and both experts engaged in two conferrals and produced two joint statements for the Tribunal, which resulted in the production of an agreed set of conditions (see Exhibit 34). The conditions were based on the applicant's revised proposal and therefore included conditions relating to the extraneous modifications and time periods outside of the extended trading hours applied for. The acoustic experts agreed that if these conditions were imposed, the extended trading hours sought would not unreasonably impact on the amenity of the adjoining residential properties.
67 Mr Hockley, in his supplementary witness statement dated 30 January 2017 (supplementary witness statement) accepted that, subject to the imposition of appropriate conditions, the 'unreasonable amenity impacts are likely to be capable of being managed'.
68 Mr Hockley in his supplementary witness statement accepted that the applicant's revised proposal addressed noise associated with the use of the car parking area between 5 pm and 9 pm, such that the proposal, subject to confirmation through a noise monitoring period, could operate within the limits assigned by the Noise Regulations. He further accepted that the physical measures incorporated into the plans, together with the management measures ameliorated the majority of noise impacts associated with the use of the onsite parking area by staff and patrons.
69 As to the number of car parking bays provided on-site, Mr Hockley acknowledged the previous assessment by the respondent and did not criticise that assessment. Further, no evidence was adduced by the respondent to demonstrate that the number of car parking bays provided on-site was insufficient to cater for the demand generated by the extended trading hours. Mr Simpson referred to the 2010 and 2011 approvals of the respondent (which granted approval for opening hours from 7 am to 9 pm) and observed that the only difference between those approvals and 2015 approval was that the 2015 approval required the provision of nine car parking bays, cash in lieu for one car bay and nine bicycle bays, while the 2010 and 2011 approvals showed 10 car parking bays. He considered the number of car parking bays provided to be consistent with the 2010 and 2011 approvals and appropriate for the use. He further commented on the provision of bicycle bays as being supportive of the respondent's policy promoting alternative forms of transport.
70 Mr Hockley was concerned that on-street parking availability during the evening may be limited with residents and visitors occupying these bays during the late afternoon and evening, however, he did not consider that this issue on its own was likely to result in undue and adverse impacts.
71 There was agreement by the town planning experts that delivery times should be restricted as this activity would have an adverse impact on the amenity of the resident and therefore deliveries should be made prior to 6 pm.
72 It is clear from the evidence that the extension of the trading hours from 5 pm to 9 pm has the potential to give rise to unacceptable amenity impacts on the adjoining residents. The concerns raised by the residents are valid, however, these need to be considered in light of the fact that the land is zoned 'Local Commercial' in the Scheme and the historical use of the site for commercial purposes. This Tribunal, and the former Town Planning Appeals Tribunal (TPAT), have considered circumstances where residential uses adjoin commercial sites and held the view that 'the residents adjoining a commercial site are to expect a diminished level of comfort' and that 'it barely needs to be said that residential uses in close proximity to nonresidential uses cannot expect the same degree of amenity as would be found in a homogeneous residential suburb': see New Frontier Pty Ltd and City of Vincent [2013] WASAT 187; St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318; Woolworths Ltd and City of Joondalup [2009] WASAT 41 (Woolworths and City of Joondalup); BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110; and Gosatti Holding Pty Ltd v City of Fremantle (2000) 23 SR WA 367. The same can be said in this instance. It is the degree of impact that will determine whether the development, as proposed by the applicant, is acceptable or not.
73 Both the acoustic and the town planning experts agree that if ameliorative measures to mitigate potential impacts of the proposed extended trading hours are undertaken then the extended trading hours will not unreasonably impact on the amenity of the residents of the adjoining properties. Although the experts considered the extraneous modifications and suggested ameliorative measures in relation to some of those modifications, the deletion of these ameliorative measures does not impinge on their assessment of amenity in respect to the extended trading hours.
74 The Tribunal acknowledges the concern raised by the residents of adjoining properties, but is satisfied based on the additional work undertaken by all the experts during the course of this hearing that subject to the ameliorative measures recommended by the experts being imposed on an approval, the degree of impact from the extended trading hours will not be so unreasonable to warrant refusal of the extended trading hours.
Is condition 14 necessary and appropriate in order to protect the amenity interest of the surrounding residential area? Is the second sentence of condition 14 valid having regard to issues of finality, certainty and deferring for later consideration of a non-incidental aspect or aspects of the development leaving open the possibility of the development being carried out in a significantly different manner to that which was approved?
75 Both town planning experts agreed, and the Tribunal concurs, that condition 14 is necessary and appropriate in some form to protect the amenity of the surrounding residential area.
76 In Phil Lukin Pty Ltd & Anor and Shire of Busselton [2006] WASAT 124, the Tribunal held at [85] as follows:
... condition cannot lawfully defer, for later consideration, a nonincidental aspect of a development and cannot 'leave open the possibility that development carried out in accordance with the consent and condition will be significantly different from the development for which the application was made' (Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 per Priestley JA; see Randall and Town of Vincent [2005] WASAT 147 at [14] [22]). The determination of whether an aspect of a development is incidental is one of fact and degree in the circumstances of each case[.]
77 The Tribunal is of the view that the second sentence, as contained in condition 14, lacks finality and/or certainty as the deferment of noise related issues for later consideration leaves open the possibility of a totally different outcome from that applied for and therefore is devoid of certainty. It was accepted by the planning experts, and the Tribunal agrees, that the intent contained in the second sentence of condition 14 could be more appropriately dealt with by the imposition of a number of conditions, as expressed by the acoustic experts, in order to ensure that any noise exceedances were addressed through monitoring and management actions. In essence, it was agreed that condition 14 should be replaced with a number of conditions that addressed the impacts of the extended trading hours on the adjoining residents.
78 The respondent's principal position in respect to this matter is that the application to vary condition 14 should be refused, particularly in the absence of the information about the location of the exhaust fan to the bakery as issues associated with noise and odour remain unresolved.
79 The alternative position is that if the Tribunal determines that condition 14 should be varied, then such an approval should only be granted on the basis of the proposed consolidated set of conditions (proposed consolidated conditions), which arise from the Respondent's Revised Without Prejudice Draft Conditions; the Applicant's Response to the Respondent's Revised Without Prejudice Draft Conditions; and the Joint Witness Statement of Expert Witnesses in relation to Noise Conditions. The proposed consolidated conditions are as follows:
(i) To ensure compliance with the Environmental Protection (Noise) Regulations 1997, the Applicant is to conduct noise monitoring as set out below in (iii)-(v) and in accordance with the Environmental Protection (Noise) Regulations 1997.
(ii) After each occasion of monitoring, the Applicant is to report the results to the City of South Perth within fourteen (14) days.
(iii) The monitoring is to be carried out on two separate occasions. The first occasion is to be within one month of the commencement of trading from 5:00pm to 9:00pm, and the second occasion is to be six months after the first occasion.
(iv) On each occasion of monitoring, the monitoring is to:
- be conducted over a representative period sufficient to quantify the different noise sources in their different operational states including mechanical plant (both speeds), alfresco area patrons and car park activities;
- be undertaken at each residential location identified for in the acoustic reports or representative location.
(v) The monitoring is to be of noise emitted from the approved uses of 333 Mill Point Road.
(vi) If the noise monitoring discloses any exceedances of the Environmental (Noise) Regulations 1997 then the source of the exceedance is to be identified and the applicant is to ameliorate the noise within 28 days. Following the amelioration of noise, noise monitoring is to demonstrate compliance and be reported to the City of South Perth within fourteen (14) days following the noise monitoring.
(i) The roof structure above EAF02, extending from the building facade to the boundary wall adjoining 331A Mill Point Road and approximately 1.5 m either side of EAF0.2. Roof to be sheet metal with 50 mm thick, 11kg/m³ installation to the underside.
(ii) Acoustically absorbent screens shall be installed to two sides (Southwest and Southeast) of EAF01. Screens shall consist of 1.2 mm thick steel sheet with 50 mm thick, 11kg/m³ insulation to the equipment side of the screen. Height of the screens shall be 1.5 times the height of the fan above the roof.
(iii) A carport structure shall be constructed above the car bays adjoining the residence of Lot 4 (2) Banksia Terrace. The carport shall be a metal deck roof with 50 mm thick, 11kg/m³ insulation to the underside. The carport roof shall be sealed against the boundary wall to minimise any gaps.
(i) Delivery drivers, at the time of arrival, shall be verbally instructed by management to turn off their engines while on the premises.
(ii) Music shall not be permitted in the alfresco area.
(iii) Prior to 9am on a Sunday the maximum number of patrons permitted in the alfresco area is 18, unless shown otherwise by the noise monitoring or the alfresco area is provided with a glass or acoustically rated Perspex (e.g Plexiglass Soundstop) screen parallel to Banksia Terrace. The screen shall be constructed for the full length of the alfresco area to a minimum height of 1.5 metres above floor level. Sofit of slab above shall be lined with 50 mm thick, 11kg/m³ insulation (or approved equivalent), which can be covered with perforated or slotted fibre cement/plywood if desired.
(iv) All exhaust and supply air fans shall be fitted with variable speed drives to limit the speed of the fans to 60% of maximum during the night (10pm to 7am Monday to Saturdays and 10pm to 9am Sundays).
(v) Signage is to be installed advising patrons and staff of the surrounding residential area and be respectful, courteous and leave in a quiet manner. Should loud or unruly behaviour be observed by management/staff, management/staff are to request offending persons to leave the premises. Where this is not adhered to, management/staff shall take the following action as required:
- record their vehicle registration number of the offending person(s) and provide to relevant authorities; and
- record the incident in the noise complaints register.
(vi) A noise complaints register is to be maintained and record the following:
80 The applicant opposes proposed consolidated conditions 3, 4 and 10 and asserts that condition 9(vi) should be modified to refer to the extended trading hours applied for.
81 Further, in anticipation of the Tribunal's concerns about the extraneous modifications, the applicant's representative prepared modified versions of the proposed consolidated conditions (proposed modified consolidated conditions) not objected to, that deleted references to the extraneous matters. These are as follows:
(ii) inclusion of roof mounted fan on roof above ground floor foyer area (SAF01);
(iii) minor relocation of shopfront pedestrian entry from Mill Point Road;
(iv) increase in bin store area and inclusion of storeroom and resulting loss of a staff toilet;
(vi) identification of additional roof space within loft area for storage of mechanical plant.
(i) Acoustically absorbent screens shall be installed to two sides (southwest and southeast) of EAF01. The screens shall consist of 1.2mm thick steel sheet with 50mm thick, 11kg/m³ insulation to the equipment side of the screen. The height of the screens shall be 1.5 times the height of the fan above the roof.
(ii) A carport structure and supporting wall shall be constructed above the car bays adjoining the residence of Lot 4 (2) Banksia Terrace. The carport shall be a metal deck roof with 50mm thick, 11kg/m³ insulation to the underside. The carport roof shall be sealed against the supporting wall to minimise any gaps[.]
82 The applicant did not make any suggested modifications to condition 9.
83 The test of validity of a condition of planning approval is well known: Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury test). A condition is valid if:
84 The Tribunal is of the view that conditions 1, 2 and 5 as agreed by the parties satisfy the three limbs of the Newbury test and should be imposed as conditions on the extension of the trading hours.
85 In regards to conditions 6, 7, and 8, given the Tribunal's findings in respect to the extraneous modifications included in the applicant's revised proposal (see [41]), conditions 6, 7 and 8 should reflect those findings and therefore the proposed modified consolidated conditions should be imposed.
86 Condition 9 is agreed between the parties but the scope of the agreed condition goes beyond what is being applied for and imposes restrictions on hours outside of the extended trading hours sought. The Tribunal considers that it is appropriate to impose a condition requiring a noise management plan but that plan can only relate to matters that relate to the variation in trading hours. The present drafting of the condition raise some concerns. The Tribunal finds that parts (i), (iii) and (iv) of condition 9 fail to meet the second limb of the Newbury test (nexus test) in that those parts of the condition do not fairly and reasonable related to the variation sought to the trading hours. Parts (ii) and (vi) of condition 9 can be easily modified so that the requirements apply to the trading hours between 5 pm and 9 pm and therefore can be imposed. The Tribunal is satisfied that the behaviour referred in part (v) of condition 9 is more likely to occur between the hours of 5 pm to 9 pm than at other times during the day and therefore considers that part (v) of condition 9 reasonably relates to the extended trading hours.
87 Conditions 3, 4 and 10 are conditions that also fail the nexus test as each of these conditions seek to restrict some operational aspect of the approved use that do not arise from the proposal to extend the trading hours and should not be imposed for the following reasons.
88 Condition 3 seeks to deal with hours of operation separately to trading hours. The respondent argues that the reference to 'trading' in condition 14 of the original approval takes in all activities associated with the approved land uses (except deliveries, which were referred to separately) and does not import the distinction between different types of activity. The respondent asserts that the undertaking of activities outside of the approved hours was not part of the development approval and therefore, not approved by the respondent and that the applicant is, in effect, seeking to modify its proposed use of the subject land by undertaking activities before 7 am and after 5 pm.
89 Mr Hockley, in this witness statement, states that condition 14 of the planning approval dated 24 March 2015 'restricts trading hours of the eé/Restaurant and Shop to 7 am to 5 pm, seven days a week, it places no time limit on the hours of operation. This suggests that the hours of operation are unlimited so long as no trading to the public occurs after 5 pm or before 7 am, seven days a week'. This view differs from the submissions put by the respondent.
90 The question of hours of operation is not related to the extension of trading hours and falls outside of the ambit of this review. Clearly, these are two separate functions of the business. The operational activities associated with the bakery, as identified by Ms Gay, were apparently always an aspect of the development and the change in trading hours does not result in an impact on the acoustic or other amenity caused by those activities and therefore a condition imposing a restriction on hours of operation has no nexus with the change to trading hours. If there is a dispute about whether activities occurring outside of trading hours are covered by the development approval, then that is a question for another forum and maybe a further planning approval.
91 Condition 4, which seeks to prohibit wholesale sales from the site, has no nexus with the extending trading hours being sought. The respondent submits that sales and supply of food on a wholesale basis would constitute an intensification of the use and the imposition of a condition prohibiting whole sales is a proper response to ensuring that the intensification of the use is limited. The Tribunal agrees that wholesale sales would represent an intensification of use, however, there has been no suggestion from that applicant that such sales are intended to take place onsite, in fact, Ms Gay expressly stated in her oral evidence that '[w] are not going to be wholesaling'. (T:23; 14.03.2016) The approved uses of 'Café/Restaurant' and 'Shop' as defined in Sch 1 Definitions of the Scheme do not contemplate the wholesale sale of goods or produce and therefore any such intensification would require a subsequent planning approval.
92 Condition 10, which requires the preparation of an odour plan, arises in the context of the applicant's revised proposal in regards to the relocation of the extraction fan associated with the bakery. As the Tribunal has determined that this element is one of the extraneous modifications and is to be deleted from the plans, the condition serves no purpose, does not reasonably relate to the extended trading hours and therefore, should not be imposed as a condition.
Whether condition 14 should permit trading hours of 7 am to 9 pm seven days a week so as to be consistent with approvals granted by the respondent in respect of the subject land on 25 May 2010 and 13 December 2011
93 In Rossi and City of Bayswater [2010] WASAT 33; (2010) 70 SR (WA) 107, the Tribunal, at [23], observed as follows:
Orderly and proper planning requires that planning decisions be made in a consistent way in relation to a site where the planning framework is the same and the circumstances have not changed in any substantial or material way[.]
94 A decision to approve the extended trading hours is consistent with the previous decisions of the respondent, although due to the additional expert evidence available to the Tribunal in this review, any final decision will be subject to appropriate conditions.
95 The application for review should be allowed and the determination of the respondent be set aside and a decision substituted approving the application subject to conditions.
For the above reasons, the Tribunal makes the following orders:
14.1 The maximum trading hours of the Café/Restaurant and Shop shall be limited to 7 am to 9 pm, seven days a week.
14.2 Delivery shall be limited to 7 am to 5 pm Monday to Saturday and 9 am to 5 pm Sunday.
14.3 Noise monitoring shall be undertaken as follows:
(i) To ensure compliance with the Environmental Protection (Noise) Regulations 1997 (WA), the applicant is to conduct noise monitoring as set out below in (iii) (v) and in accordance with the Environmental Protection (Noise) Regulations 1997.
(ii) After each occasion of monitoring, the applicant is to report the results to the City of South Perth within fourteen (14) days.
(iii) The monitoring is to be carried out on two separate occasions. The first occasion is to be within one month of the commencement of trading from 5 pm to 9 pm, and the second occasion is to be six months after the first occasion.
(iv) On each occasion of monitoring, the monitoring is to:
- be conducted over a representative period sufficient to quantify the different noise sources in their different operational states including mechanical plant (both speeds), alfresco area patrons and car park activities;
- be undertaken at each residential location identified for in the acoustic reports or representative location.
(v) The monitoring is to be of noise emitted from the approved uses of No 333 Mill Point Road.
(vi) If the noise monitoring discloses any exceedances of the Environmental Protection (Noise) Regulations 1997 then the source of the exceedance is to be identified and the applicant is to ameliorate the noise within 28 days. Following the amelioration of noise, noise monitoring is to demonstrate compliance and be reported to the City of South Perth within fourteen (14) days following the noise monitoring.
14.4 The plans entitled 'Bakery 333 Mill Point Road Air Conditioning & Mechanical Services Ground & First Floor Plans' and dated June 2016 is to be complied with, except in respect of the following elements:
(ii) the inclusion of roof mounted fan on roof above ground floor foyer area (SAF01);
(iii) minor relocation of shop front pedestrian entry from Mill Point Road;
(iv) increase in bin store area and inclusion of storeroom and resulting loss of staff toilet;
(vi) identification of additional roof space within loft area for storage of mechanical plant.
14.5 The air conditioning and ventilation equipment is to be as specified in sections 2 and 3 of the document entitled 'Mill Point Road Bakery Performance Brief Air Conditioning & Ventilation' dated 29 April 2016, except in respect of EAF02 and SAF01.
14.6 The acoustic measures as depicted and described within revision 16 of the drawings dated 24 October 2016, with the exception of the 48 degrees pitch sheet metal roof depicted in section B on sheet A08, are to be implemented and include:
(i) Acoustically absorbent screens shall be installed to two sides (southwest and southeast) of EAF01. The screens shall consist of 1.2 mm thick steel sheet with 50 mm thick, 11kg/m³ insulation to the equipment side of the screen. The height of the screens shall be 1.5 times the height of the fan above the roof.
(ii) A carport structure and supporting wall shall be constructed above the car bays adjoining the residence of Lot 4 No 2 Banksia Terrace. The carport shall be a metal deck roof with 50 mm thick, 11kg/m³ insulation to the underside. The carport roof shall be sealed against the supporting wall to minimise any gaps.
14.7 Noise management shall be undertaken in accordance with the following:
(i) Music shall not be permitted in the alfresco area between the hours of 5 pm and 9 pm.
(ii) Signage is to be installed advising patrons and staff of the surrounding residential area and be respectful, courteous and leave in a quiet manner. Should loud or unruly behaviour be observed by management/staff, management/staff are to request offending persons to leave the premises. Where this is not adhered to, management/staff shall take the following action as required:
- record the vehicle registration number of the offending person(s) and provide to relevant authorities; and
- record the incident in the noise complaints register.
(iii) For trading hours between 5 pm and 9 pm a noise complaints register is to be maintained and record the following:-
I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
_________________________________
Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269
New Frontier Pty Ltd and City of Vincent [2013] WASAT 187
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Phil Lukin Pty Ltd & Anor and Shire of Busselton [2006] WASAT 124
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Rossi and City of Bayswater [2010] WASAT 33; (2010) 70 SR (WA) 107
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
Woolworths Ltd and City of Joondalup [2009] WASAT 41
(1993) 84 LGERA 71
(1991) 23 NSWLR 734