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[2013] WASAT 66
General information, not legal advice.
State Administrative Tribunal (WA)
2013-05-09
Original judgment source is linked above.
The application for review was allowed and the structure plan was amended as sought by the applicants.
AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 281 ALR 694
Chiefari v Brisbane City Council [2005] QPEC 9;
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Goldrange Pty Ltd and City of Wanneroo [2011] WASAT 48
1 Goldrange Pty Ltd and Greenpark Asset Pty Ltd (applicants) own Lots 810 and 811 Drovers Place, Wanneroo, which contains a commercial centre known as 'Drovers Place' with frontages to Joondalup Drive and Wanneroo Road. Drovers Place includes, on Lot 810, a 'Growers Mart' (comprising processing, wholesale and retail butchery, fruit and vegetable, bakery and fishmonger businesses accessed via common entries), a lunch bar deli, a veterinary clinic and a Pet City retail outlet, and, on Lot 811, a retail nursery and café, a warehouse, a showroom and a gym. These and ancillary uses have a total floor area of approximately 17,000m2.
2 Lots 810 and 811 are zoned Urban Development under the City of Wanneroo District Planning Scheme No. 2 (Scheme). Land use permissibility in the Urban Development Zone is 'determined in accordance with the provisions of the relevant Agreed Structure Plan' (cl 3.14.4 of the Scheme). The Agreed Structure Plan applicable to Lots 810 and 811 and adjoining and adjacent properties is the Drovers Place Precinct Local Structure Plan No. 80 (SP 80) which was adopted by the Western Australian Planning Commission (Commission) on 10 July 2012 and by the City of Wanneroo (City) on 24 August 2012. Lots 810 and 811 are contained within the Central Precinct under SP 80. SP 80 replaced the previously applicable Drovers Place Precinct Local Structure Plan No. 47 (SP 47).
3 The applicants seek review by the Tribunal of the Commission's determination of their application for amendment of SP 80. Ultimately, in this review, the applicants seek the following amendments to SP 80:
4 The proposed additional discretionary land uses are intended by the applicants to facilitate development approval for a hairdresser with an area of 150m2 in a nominated part of a building on Lot 810 and approval of a development application by Coles Ltd for a First Choice Liquor Superstore with an area of 1,276m2 in a nominated part of a building on Lot 811. Growers Mart is a discretionary use for which development approval can be granted by the City at Drovers Place under the Scheme and SP 80.
State Planning Policy 4.2 Activity Centres for Perth and Peel
5 State Planning Policy 4.2 Activity Centres for Perth and Peel (SPP 4.2) was gazetted on 31 August 2010. Section 241(1) of the Planning and Development Act 2005 (WA) (PD Act) requires the Tribunal to have 'due regard' to SPP 4.2 in determining the application for review. Furthermore, as Barker J held in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24], while the existence of a policy cannot replace the discretion of the decisionmaker in the sense that it is to be inflexibly applied regardless of the merits of the particular case, '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'.
6 The 'main purpose' of SPP 4.2 is 'to specify broad planning requirements for the planning and development of new activity centres and the redevelopment and renewal of existing centres in Perth and Peel' (cl 2). It is 'mainly concerned with the distribution, function, broad land use and urban design criteria of activity centres, and with coordinating their land use and infrastructure planning' (cl 2). Other purposes of SPP 4.2 include 'the integration of activity centres with public transport; ensuring they contain a range of activities to promote community benefits through infrastructure efficiency and economic benefits of business clusters; and lower transport energy use and associated carbon emissions' (cl 2). SPP 4.2 covers activity centres identified as Perth City, Strategic Metropolitan Centres, Secondary Centres, Specialised Centres, District Centres and Neighbourhood Centres (supplemented by Local Centres). However, SPP 4.2 does not recognise Drovers Place as an activity centre.
7 Clause 3 of SPP 4.2 states that the policy applies to 'the preparation and review of local planning strategies, schemes and structure plans; and development control'. Clause 5.1(2) of SPP 4.2 states that 'the responsible authority should not support activity centre structure plans or development proposals that are likely to undermine the established and planned activity centre hierarchy' which is set out in Table 2. Clause 5.6 of SPP 4.2 concerns 'out of centre development' and states as follows:
(1) Health, welfare, community services, entertainment, recreation, commercial and cultural facilities (Appendix 1) likely to attract a significant number employees or users and/or generate significant vehicle trips should generally be located in, or adjacent to, activity centres.
(2) Where such uses cannot be accommodated within, or adjacent to, activity centres development should be restricted to established Mixed Business or equivalent zones with good access to public transport, rather than being dispersed. (Emphasis in italics added).
8 Appendix 1 includes 'Planning land use category 5; Shop/retail' which, in turn, includes 'liquor retail', 'men's hairdressers' and 'women's hairdressers including unisex'. Development in accordance with the proposed large format liquor store and hairdresser land uses at Drovers Place is likely to attract a significant number of employees or users and generate significant vehicle trips. Clause 5.6(1) of SPP 4.2 therefore requires that these uses should generally be located in, or adjacent to, activity centres. However, Drovers Place is not in, or adjacent to, an activity centre recognised by SPP 4.2.
9 Mr Peter Goff, a town planner called by the applicants, expressed the opinion that the range of discretionary uses which are capable of approval in the Central Precinct listed in cl 2.1 of Table C of SP 80 is such that the Central Precinct is an 'established Mixed Business or equivalent zone' within the meaning of cl 5.6(2) of SPP 4.2. There are 28 discretionary land uses listed in cl 2.1 of Table C of SP 80, including retail uses such as bakery, butcher, fishmonger, growers mart, hardware store, lunch bar, retail nursery and restaurant, and other commercial uses such as auction room, costume hire, dry cleaning premises, funeral parlour, laundromat, office, reception centre, veterinary consulting rooms and veterinary hospital. Although, given the breadth of retail and other commercial uses which are capable of approval in the Central Precinct, there is strength in Mr Goff's view, it is ultimately unnecessary to decide this question. This is because, in our view, the following three factors provide a cogent basis for not applying cl 5.6 of SPP 4.2 to the strategic planning decisions that we are called upon to make in the particular circumstances of this case.
10 First, the Commission (and the Council) adopted a specific strategic planning instrument for the Drovers Place Precinct, namely SP 80, in the knowledge and after the gazettal of SPP 4.2, which provides for and regulates a broad range of commercial and other uses which are likely to attract a significant number of employees or users and generate significant vehicle trips, even though the Drovers Place Precinct is not recognised as an activity centre, and is not located adjacent to an activity centre, under SPP 4.2. SP 80 also contains a statement of intent and detailed development provisions for each precinct. SP 80 and, in particular, its statement of intent for the Central Precinct is, therefore, the principal planning document which guides the strategic planning decisions in this review.
11 Secondly, cl 5.6(1) of SPP 4.2 qualifies the requirement that the facilities should be located in, or adjacent to, activity centres with the word 'generally'. 'Generally' means 'usually; commonly; ordinarily' (The Macquarie Dictionary, 5th ed., page 693). However, the planning circumstances of Drovers Place are anything but usual, common, or ordinary. The historical development and planning recognition and regulation in SP 80 of Drovers Place, which is a significant, existing commercial centre of 17,000m2 floor area, but one nevertheless not recognised within the activity centre hierarchy in SPP 4.2, is, as Mr Angus Witherby, a town planner called by the applicants, said, based on 30 years of experience as a town planning practitioner and 13 years as a town planning teacher, not only unusual, but 'a quite unique animal' (oral evidence 30/4/13).
12 Thirdly, Mr Witherby gave evidence that SPP 4.2 is 'largely silent when it comes to the type of development that we have at Drovers Place' (T:69.9, 27.2.13). In particular, Mr Witherby explained that SPP 4.2 'doesn't grapple with [the] question of wide catchment developments' (T:70.2, 27.2.13). Mr Witherby and Mr Goff both gave evidence, which was not disputed by Mr Chris O'Neill, a town planner called by the Commission, that the historic and current 'Growers Mart' land use on Lot 810 is a 'destination based' and 'wide catchment' development. As we find below, both of the additional discretionary land uses proposed by the applicants are also destination based and wide catchment uses. Furthermore, as Mr Witherby said:
SP 80 in a sense has taken the next step in terms of policy development by recognising that, you know, these types of things exist, they're real, that they serve a community benefit, but they need to be controlled and managed.
You don't want them willynilly, you don't want a free for all. So, to my mind, you know, SP 80 in a sense is taking the next step beyond [SPP 4.2] in terms of having a serious go with grappling with this particular class of use. (T:71.9, 27.2.13).
13 We find that, in the particular circumstances of this case, SP 80 and, in particular, its statement of intent for the Central Precinct, is the primary planning document which guides the determination of whether a large format liquor store and a large format hairdresser with a general training component are each an acceptable and appropriate discretionary land use in the Central Precinct under SP 80. In our view, the greatest significance of SPP 4.2 to the strategic planning decisions in this review is in terms of its requirement in cl 5.1(2) that structure plans and development proposals should not be supported if they are likely to undermine the established and planned activity centre hierarchy under the policy. This is because the activity centre hierarchy is fundamental to the policy and the requirement in cl 5.1(2) of a SPP 4.2 is reflected in the statement of intent for the Central Precinct in SP 80 and in a specific development provision (cl 3.5 of Table C) referred to below.
14 Clause 1.1 of Table C of SP 80 sets out the statement of intent for the Central Precinct as follows:
The intent of the Central Precinct is to provide for niche business and cultural uses that benefit from high exposure to Wanneroo Road but do not significantly compromise the viability of nearby activity centres and encourage a built form that respects and recognises the environment of Yellagonga Regional Park.
15 The term 'niche business' is not defined in SP 80 or in the Scheme. None of the planning expert witnesses are aware of the use of this term in any other planning instrument or policy.
16 As noted earlier, cl 3.14.4 of the Scheme provides that the permissibility of uses in the Urban Development Zone, including Drovers Place, is 'determined in accordance with the provisions of the relevant Agreed Structure Plan', in this case SP 80. Furthermore, cl 9.8.2 of the Scheme provides that where an Agreed Structure Plan imposes land use classifications, until it is replaced by an amendment to the Scheme imposing such classifications:
The provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme ...
17 Under s 68(1)(b) of the PD Act, the Scheme 'has effect as if it were enacted by this Act'. Thus, the provisions of SP 80 are deemed to be incorporated in the Scheme and the meaning of the statement of intent for the Central Precinct, including the term 'niche business', is to be determined as a matter of legislative interpretation, although in a town planning context.
18 As the High Court of Australia said in AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 281 ALR 694 at [10], 'What is comprehended by [a legislative provision] falls to be determined by construing its terms in the context of the [legislation] as a whole and by reference to its evident purposes' (Citations omitted). Moreover, as Wilson J held in the Queensland Planning and Environment Court in Chiefari v Brisbane City Council [2005] QPEC 9; [2005] QPELR 500 (Chiefari) at 502, the provisions of a planning scheme 'will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose'.
19 The most apposite ordinary meaning of 'niche' is (as a noun) 'a place or position suitable or appropriate for a person or thing' and (as an adjective) 'designed for a specific niche market' (The Macquarie Dictionary, 5th ed., page 1127). The noun 'niche market' means 'a section of a market ... usually small, which can be highly profitable if the product supplied is specially designed to meet targeted needs' (page 1127).
20 Although the proper interpretation of legislation is a matter for the Tribunal, SAT's practice in planning cases, where it is called upon to interpret the meaning of planning instruments or policies, is to invite expert town planning witnesses, who draft, interpret and apply planning instruments and policies in their daily work, to express considered views to assist the Tribunal to determine their meaning. As Wilson J said in Chiefari, planning instruments (and policies) are largely the work of town planners and they are to be interpreted in a practical and commonsense way, and in a town planning context. While the proper interpretation of planning instruments and policies is for the Tribunal to determine, town planning expert witnesses are often able to assist the Tribunal in the task of ascertaining their meaning.
21 Having regard to the ordinary meaning of the word 'niche', particularly in a town planning context, Mr Goff and Mr Witherby each consider that 'niche' relevantly refers to a business use that is specialised or differentiated from other businesses of that type. Mr Witherby also considers that, related to specialisation and differentiation, is the concept of 'complementality', in that a niche business complements nonniche businesses of that type in other locations.
22 Mr O'Neill does not disagree that specialisation, differentiation and complementality are relevant to the meaning of 'niche business', but places particular emphasis on parts of the Explanatory Report in Part 2 of SP 80 which 'contains supporting information to clarify aspects of Part 1 and provide[s] an indication of future planning for the Structure Plan Area' (cl 5.0 of SP 80).
23 The Explanatory Report of SP 80 contains the following text which is of assistance in understanding the meaning of the statement of intent for the Central Precinct in cl 1.1 of Table C, including the expression 'niche business':
The location of the Drovers Place Precinct is not identified as an Activity Centre; uses proposed within the structure plan will not result in the creation of a centre as described by the draft Activity Centres State Planning Policy [as SPP 4.2 was at the time when the Explanatory Report was written in 2009], however, will facilitate commercial and office uses and other niche business uses not appropriate for inclusion within a centre as described by the draft State Planning Policy. (Clause 2.5) (Emphasis added).
Provisions of the Drovers Place Precinct Structure Plan provide for restricted business uses that are not likely to compete with defined centres, providing a blend of tourism and cultural uses, with niche businesses not appropriate for location within walkable, mixed use activity centres. (Clause 2.8) (Emphasis added).
Development within the Drovers Place Precinct will expand upon existing development to be a hub of educational, cultural, and tourism uses supported by niche businesses that respect and create relationships with the environment of Yellagonga Regional Park. Development will support business uses that complement, and do not detract, from viable activity centres in the surrounding region. (Clause 4.1) (Emphasis added).
Development within the Central Precinct, therefore, will allow appropriate niche business uses that will benefit from the high exposure location and not affect the viability of planned activity centres. Those uses inappropriate to the environmental setting or that directly compete with activity centres will be prohibited. It is reasonable that smallscale business development that is not appropriate for siting within walkable, mixed use activity centres in a built form setting that fits with the Yellagonga Regional Park be supported in the area. (Clause 4.2.2) (Emphasis added).
24 Mr O'Neill places particular emphasis on these parts of the Explanatory Report and considers that 'the context of that reference to niche uses [in the statement of intent for the Central Precinct] is clearly looking at uses which can't easily be accommodated within designated centres and won't interfere with similar development in those centres'.
25 Finally, the legislative context in which the meaning of the statement of intent for the Central Precinct, including the term 'niche business', is to be determined, includes certain other provisions of SP 80. Clause 7.0 of SP 80 states that the general objectives of the Structure Plan include to 'complement surrounding activity centres through provision of niche business uses reliant on highway exposure' (par (b)). Clause 8.1 of SP 80 states that Tables AF form part of the statutory provisions of the Structure Plan and 'prescribe the standards, requirements and prerequisites for subdivision and development in the corresponding precincts'. Table C sets out planning requirements for the Central Precinct and is divided into four parts, namely 'Intent' (cl 1.1 set out earlier), 'Zoning' (prescribing 28 Discretionary 'D' uses in cl 2.1 and the definitions of three uses in cl 2.4, among other provisions), 'Development Provisions' and 'Detailed Area Plan Requirements'. The Development Provisions include the following in cl 3.5:
Development proposals shall be accompanied by an assessment undertaken by the proponent, which demonstrates to the satisfaction of the City of Wanneroo that the proposed uses will complement rather than compete with or compromise the viability of nearby activity centres.
26 In our view, on its proper interpretation, construing it in the context of the other provisions of SP 80 and the Explanatory Report referred to above and in a 'practical and commonsense, and not an overly technical way, and in a fashion which will best achieve [its] evident purpose' in a planning context, the statement of intent for the Central Precinct involves a single planning concept and vision for land use and development in the precinct, rather than imposing three separate and distinct tests. Read as a whole and in context, cl 1.1 of Table C indicates that the Central Precinct is intended to accommodate specialised or differentiated business and cultural uses that, because of their nature, are particularly suited and appropriately located on the site ('reliant on highway exposure': cl 7.0(b) of SP 80), but not particularly suited and appropriately located within nearby 'walkable, mixed use activity centres' (cl 2.8 and cl 4.2.2 of the Explanatory Report), and which 'complement, and do not detract from viable activity centres in the surrounding region' (cl 4.1 of the Explanatory Report) or 'compromise the viability' (cl 3.5 of Table C of SP 80) of such centres.
27 Although cl 4.2.2 of the Explanatory Report states that '... uses ... that directly compete with activity centres will be prohibited' and cl 3.5 of Table C of SP 80 uses the words 'compete with or compromise the viability of nearby activity centres', in our view, on its proper interpretation, the statement of intent for the Central Precinct does not seek to preclude a use simply because it competes with a use in an activity centre, for the following three reasons.
28 First, plainly, many of the 28 Discretionary 'D' uses, including retail uses, listed in cl 2.1 of Table C, which are capable of approval in the Central Precinct, will compete with uses in nearby activity centres. Second, the statement of intent in cl 1.1 of Table C does not say that it seeks to prohibit any business use which would compete with uses in nearby activity centres; rather, it precludes uses which 'significantly compromise the viability of nearby activity centres'. Third, cl 4.2.2 of the Explanatory Report and cl 3.5 of Table C also, in substance, are concerned with protecting the function and viability of activity centres, not preventing competition between uses; cl 4.2.2 of the Explanatory Report precludes ' ... uses ... that directly compete with activity centres', not uses that directly compete with uses in activity centres; and cl 3.5 of Table C uses the words 'compete with' as part of a wider phrase 'complement rather than compete with or compromise the viability of nearby activity centres', which seeks to prevent the Central Precinct from undermining the role of nearby activity centres or compromising their viability.
29 Finally, we note that Drovers Place is not included in the City's current Centres Policy 2000 or in its draft Activity Centres Policy 2012. We do not consider that any weight should be given to these policies in the circumstances of this case, given that the City has recently adopted SP 80 which is a specific strategic planning instrument for Drovers Place and adjoining and adjacent land. As found earlier, SP 80 is the principal planning document which guides the strategic planning decisions in this review.
30 The issues for determination in this review are:
32 For the reasons which follow, we find that the proposed land use 'Large Format Liquor Store with a minimum area of 1,250m2' is an acceptable and appropriate land use on Lot 811, because it is consistent with the statement of intent of the Central Precinct, will complement rather than compete with or compromise the viability of nearby activity centres under cl 3.5 of Table C of SP 80, and will not undermine the established and planned activity centre hierarchy under SPP 4.2.
33 Mr O'Neill is of the opinion that a large format liquor store, such as a First Choice Liquor Superstore operated by Coles Ltd or a Dan Murphy's outlet operated by Woolworths Ltd, is not sufficiently specialised or differentiated from liquor stores generally to constitute a 'niche business ... use' within the meaning of cl 1.1 of Table C of SP 80. However, the evidence of Mr Curtis Field, the National Business Development Manager of the Coles Liquor Group, supported by expert planning and economic evidence called by the applicants, demonstrates that a large format liquor store is specialised and differentiated from a traditional convenience liquor store, and is relevantly a 'niche business ... use', for essentially six reasons.
34 First, a typical large format liquor store carries a significantly greater range of products than a traditional convenience liquor store. Mr Field gave evidence that a First Choice Liquor Superstore carries approximately 133% more products (approximately 2,800 as opposed to approximately 1,200 products), and, in particular, between approximately 150% and almost 300% more wine products (approximately 1,0001,500 as opposed to approximately 400 products) than a Liquorland outlet which is Coles' convenience liquor store. Consequently, a large format liquor store requires a significantly greater floor size than a convenience liquor store and offers a significantly greater choice of products, especially wine.
35 Secondly, the way the stock is laid out in a large format liquor store is significantly different to a convenience liquor store. Mr Field gave evidence that the typical display of products in a First Choice Liquor Superstore involves a dozen individual bottles available for purchase and also about twothirds of all stock displayed as available for purchase by carton. In contrast, a typical convenience store 'usually doesn't show wine cartons, wine by the carton at all, all just by loose bottle' (T:4.5, 27.2.13).
36 Thirdly, Mr Field gave evidence that 'large format First Choicebranded retail stores have significantly different trading profiles to the rest of the Liquorland fleet' (T:3.2, 27.2.13) in two key respects. First, 'the basket size, which is the total value of the transaction purchased by each customer, is significantly higher than you would expect in what we would consider to be a normal convenience bottle shop, some 74 to 85 per cent higher' (T:3.4, 27.2.13). Second, 'the basket size in dollars also being significantly larger, the quantity of goods purchased also is significantly larger to the tune of between 50 and 90 per cent higher' (T:3.5, 27.2.13).
37 In his witness statement, Mr Field explained that 'First Choice Liquor Superstores satisfy a growing demand for customers who wish to purchase in bulk at large format liquor stores' and consequently 'customer purchase patterns are quite different to conventional "convenience" liquor stores'. He said that bulk purchases are 'most common in the wine category, where First Choice customers typically purchase wine by the caselot (either 6 or 12 bottles), whereas typical convenience liquor customers purchase between 1 and 3 bottles'.
38 Mr Goff, who has been involved in the applications for all of the Dan Murphy's outlets in the Perth metropolitan area and several of the First Choice Liquor Superstore outlets, explained in his witness statement that the bulk purchasing which is typical at large format liquor stores results both from 'a particular segment of the market that is ... looking to purchase significant quantities of packaged liquor in order to furnish their home cellars' and restaurants and clubs that, 'because of their relatively small volume requirements, ... can get their stock cheaper at a First Choice or Dan Murphy's outlet than they can from a wholesaler'.
39 Fourthly, in consequence of the foregoing reasons, large format liquor stores are, as Mr Field said, 'destination stores by their nature' and 'rely on being able to draw people from a little bit further afield' than traditional liquor stores (T:7.3, 27.2.13). Mr Field explained that the high exposure of Drovers Place to Wanneroo Road is particularly important to the decision to establish, and the likely success of, a large format liquor store at that location. He said that:
The subject site has the benefit of being proximate to traffic travelling on both Joondalup Drive and Wanneroo Road and it's a very prominent corner site that affords us the visibility and access that we desire for large format. (T:6.2, 27.2.13).
With respect to largeformat liquor I'd go further and say not only is [high exposure to arterial roads] of benefit but it's a requirement for that particular type of [business] basically to operate successfully. (T:49.2, 27.2.13).
41 Mr Goff and Mr Witherby also each described large format liquor stores as 'destination' stores in the sense that, because of their nature and attributes, and particularly the significantly greater range and stock of products than in traditional convenience liquor stores, customers specifically drive to them as a destination for the purpose of purchasing typically bulk supplies of liquor, whereas they go to convenience liquor stores as part of their weekly shopping and pick up one or two bottles of wine.
42 Large format liquor stores are, therefore, distinguishable from traditional convenience liquor stores because they are, by their nature, destination based and wide catchment developments, generally requiring a prominent location and access from a major arterial road, whereas traditional convenience liquor stores are not. Further, the proposed large format liquor store use is 'a niche business [use] reliant on highway exposure' (cl 7.0(b) of SP 80) which objective (b) of SP 80 contemplates should be accommodated in the Drovers Place Precinct to 'complement surrounding activity centres'.
43 Fifthly, large format liquor stores are specialised and differentiated from traditional convenience liquor stores, because, although they all sell liquor, there are and are likely to remain relatively few large format liquor stores in the Perth metropolitan area and they perform a different function so that they can be located quite close to convenience liquor stores without affecting the viability of the convenience liquor stores. As Mr Field explained, a convenience liquor store such as a Liquorland store involves 'a discrete, different customer proposition and we see it as a different offer' (T:2.2, 27.2.13) in comparison to a large format liquor store such as a First Choice Liquor Superstore. Consequently, Mr Field said that Coles will pursue the establishment of a Liquorland store in the Clarkson neighbourhood centre, located within a kilometre of Drovers Place, if a First Choice Superstore were established at Drovers Place. He also gave evidence that Coles proposes to establish a Liquorland store (but not a large format liquor store) at the Banksia Grove District Centre, two to three kilometres to the northeast of Drovers Place, irrespective of the outcome of the proposal to establish a First Choice Liquor Superstore at Drovers Place. He explained that Banksia Grove is more suited to a Liquorland store, proximate to a Coles supermarket, to enable weekly shopping, than to a First Choice Liquor Superstore.
44 The applicants also called Mr Brian Haratsis, an economist and planner specialising in, among other fields, commercial and retail planning. Mr Haratsis carried out a detailed economic assessment of the proposal to establish a large format liquor store and a large format hairdresser at Drovers Place which demonstrates, for the purposes of cl 3.5 of Table C of SP 80, that the proposed uses will complement rather than compete with or compromise the viability of nearby activity centres. In his witness statement, Mr Haratsis explained that, 'because of its size, range and pricing, the First Choice Liquor Superstore will ... be quite different both in its market positioning and in the role which it will play from the majority of existing liquor stores throughout the trade area'.
45 Similarly, Mr Witherby gave the following evidence:
Certainly in terms of largeformat liquor, if you look at the number of these things that are likely to ultimately exist within the Perth metropolitan area, I think we'd have to conclude that the characteristic of largeformat liquor is niche. It's quite possible to get a largeformat liquor outlet in very close proximity to convenience liquor outlets in fact a number of convenience outlets, all of which are trading well and that, to my mind, suggests that the largeformat liquor is a different animal.
If it's performing a different function it's a different use but by its nature, it's not a common or a frequent use throughout a metropolitan area. So, that, to my mind, says it is differentiated from other forms of liquor outlet. It is specialised and is therefore niche. (T:47.848.2, 27.2.13).
46 Mr Haratsis gave evidence that there are currently only about 18 or 20 large format liquor stores in the Perth metropolitan area and that Coles and Woolworths 'both think there's probably around about 30 or 35 at the most [that] could ever be developed in Perth' (T:62.5, 27.2.13).
47 Sixthly, because of the bulk nature of typical purchases and the weight of the products, Mr Field explained that, for a large format liquor store 'we need to satisfy ourselves that customers have access, unobstructed access, to adequate parking' (T:7.8, 27.2.13). Although customers who purchase liquor from a convenience liquor store may also need to return with their purchases to their car, the evidence shows that, because of its particular nature, proximate and dedicated car parking is far more essential for a large format liquor store than for a convenience liquor store. As Mr Goff explained:
... the liquor product is generally heavier than what you would have from a supermarket shopping trip, so that if you filled your trolley at a Dan Murphy's or a First Choice, there's much greater weight to push so that there is a far greater imperative to have the vehicle parked closer to the store than there is in ordinary shopping. (T:54.4, 27.2.13).
48 In his witness statement, Mr Goff also said that:
The large format stores provide specially designed trolleys for these customers to wheel purchases to parked cars. There are few pedestrian customers. In this regard, the large format stores effectively require a dedicated car park. For this reason, they would not normally locate within a standard shopping centre where customers would need to compete for nearby parking spaces with the customers of the supermarkets and other standard retail outlets.
49 Mr O'Neill expressed the opinion in his witness statement that SP 80 indicates that 'the Drovers Place complex is not intended to include development which competes with nearby activity centres'. However, as found earlier, that is not the case. Rather, SP 80 seeks to prevent the Central Precinct from undermining the role of nearby activity centres or compromising their viability.
50 The economic analysis undertaken by Mr Haratsis shows that although the establishment of a large format liquor store at Drovers Place would reduce the average sales per square metre of large format liquor stores in the area (including by 33 % for the Dan Murphy's store at Currambine in 2015), in Mr Haratsis' words, the existing and likely future large format liquor stores in the area would still have 'acceptable and in my view sustainable trading levels' (supplementary joint statement). There is currently a significant leakage of 50% to 60% of liquor spending from the catchment and relatively poor access to liquor stores in the area. Mr Haratsis also gave evidence that 'the growth in population [in the area] is so dramatic, and [so is] the growth [in liquor] expenditure' (T:64.2, 27.2.13) that 'around $6 million a year is added to the liquor spend in the overall catchment ... that would be a new largeformat [liquor] store every three years for the next 10 or 15 years' (T:64.3, 27.2.13). As Mr Haratsis said, the economic analysis 'shows that there is the potential within the Drovers Place / Wanneroo area to support all of the three additional large format stores which exist or are proposed to be added' (supplementary joint statement).
51 We find, based on Mr Haratsis' evidence, that the uses under consideration in this review will complement rather than compete with or compromise the viability of nearby activity centres.
52 Indeed, ultimately, Mr O'Neill, who is not an economist, conceded that the proposal to establish a large format liquor store and a large format hairdresser would not compromise the viability of nearby activity centres, but considered that a large format liquor store at Drovers Place would preclude the establishment of a large format liquor store at the Banksia Grove District Centre. However, it is unlikely that a large format liquor store would be established at Banksia Grove, whether or not one would be accommodated at Drovers Place.
53 Mr Field, who has been responsible for overseeing the opening and ongoing operations of approximately 50 new First Choice Liquor Superstores around Australia, gave evidence, which he maintained under crossexamination, that a large format liquor store is not appropriate at Banksia Grove, because of the nature of the market there which, from a liquor perspective, is 'quite local'. Hence, the decision of Coles Ltd to establish a Liquorland convenience liquor store associated with a Coles supermarket at that site.
54 Mr Field's view was supported, from a planning perspective, by both Mr Goff and Mr Witherby, and, from an economic perspective, by Mr Haratsis. Mr Goff pointed out that, under the Banksia Grove District Centre Local Structure Plan No. 65, a large format liquor store cannot be accommodated in the Business Mixed Use Precinct which abuts the major road frontages of Pinjar Road and Joondalup Drive. Mr O'Neill conceded that a large format liquor store, if established, should be located with high exposure to the major roads. Mr Witherby explained that, from a retail planning hierarchy perspective, Banksia Grove is likely to perform as a large neighbourhood centre, rather than as a full district centre. Similarly, Mr Haratsis gave the following evidence in the further joint statement:
I consider a large format liquor store at Banksia Grove would provide for a much more localised catchment than for a similar facility at Drovers Place or Wanneroo Central. This is primarily due to the surrounding road networks and inability for Banksia Grove to serve a similar regional catchment by virtue of its location. It is likely to include however a smaller liquor outlet.
55 The evidence in relation to the locational requirements for large format liquor stores referred to earlier, namely that they generally require a prominent location and access from a major arterial road, also shows that a large format liquor store is particularly suited and appropriately located at Drovers Place, given that '[t]he intent of the Central Precinct is to provide for niche business ... uses that benefit from high exposure to Wanneroo Road ... '.
56 In contrast, the evidence shows that large format liquor stores are not particularly suited or appropriately located within walkable, mixed use activity centres. Mr Field was crossexamined in relation to a number of large format liquor stores in the Perth metropolitan area which are located at the periphery of, or adjacent to, activity centres. He explained that the proximity of location was due to the shopping centres being on busy arterial roads, rather than any desirability for large format liquor stores to be proximate to activity centres. He gave the following evidence:
So it's the arterial road that's really the driver for us and in fact locating a largeformat liquor store within a very busy shopping environment such as the one at Midland is a really good example. We have attempted that on a couple of occasions in other states and they've been miserable failures. Very very difficult for customers to navigate their purchases when sometimes they're parking their car a kilometre from the door of the store. (T:16.6, 27.2.13).
57 Similarly, Mr Goff gave the following evidence in his witness statement:
I have been involved in the applications for all of the Dan Murphy's outlets in the metropolitan area and several of the First Choice outlets. In nearly every case, these outlets occupy 'out of centre' locations in that they are in the fringe areas of a retail centre or in a bulky goods area, quite separate from a retail centre. The main exception is Dan Murphy's at Balga which forms part of a neighbourhood centre however, the Dan Murphy's store so dominates this centre that the car park is effectively dedicated to Dan Murphy's customers.
58 Furthermore, large format liquor stores are, in contrast to convenience liquor stores, not particularly suited and unlikely to be located within walkable mixed use activity centres, because of the cost and limited availability of the large floor space required for this particular type of use within pedestrian areas of activity centres. Mr Field gave the following evidence:
How easy [is] it for you to get 1,200 square meters in a busy shopping centre? --- Not easy, no. In fact the busier shopping centre, the harder it is to find space and the more expensive the space is so, as a proposal, it doesn't even begin its life. (T:16.917.1, 27.2.13).
59 For the reasons which follow, we find that the proposed land use of 'Hairdresser with a general training component and with a minimum area of 150m2' is an acceptable and appropriate land use on Lot 810, because it is consistent with the intent of Central Precinct, will complement rather than compete with or compromise the viability of nearby activity centres under cl 3.5 of Table C, and will not undermine the established and planned activity centre hierarchy under SPP 4.2.
60 For the following five reasons, we prefer the evidence of both Mr Goff and Mr Witherby that the proposed hairdresser with a general training component use is specialised and differentiated from traditional hairdressers, and is relevantly a 'niche business ... use', to the evidence of Mr O'Neill that, although 'the proposal might have some unusual characteristics, ... it is not a niche business' (oral evidence 30.4.13).
61 First, there are only six comparable developments to the proposed hairdresser with a general training component land use in the Perth metropolitan area. The closest is approximately 20 kilometres away.
62 Secondly, Mr Haratsis gave evidence, which was not questioned or contradicted, that traditional hairdressers are typically located within retail centres and are accommodated in shops of approximately 50m2. The proposed use has three times the floor space.
63 Thirdly, although hairdressers typically have trainees or apprentices, they do not perform a general training function for the industry. In contrast, the proposed use would train hairdressers for the wider industry, not just for the particular hairdressing establishment.
64 Fourthly, Mr Witherby gave evidence, which was not questioned or contradicted, that a characteristic of the proposed use is that, for customers, there is a 'known risk' that 'you take what you get', because the customer's hair is likely to be cut by a trainee, and there is a consequent discount in price to reflect the risk assumed by the customer.
65 Fifthly, Mr Haratsis gave evidence, which was not questioned or contradicted, that, like a large format liquor store, but unlike traditional hairdressers, a large format hairdresser with a minimum area of 150m2 is destination based and 'requires the very large catchment to be viable' (oral evidence 30.4.13). Further, given that it requires a very large catchment to be viable, the proposed large format hairdresser use is 'a niche business [use] reliant on highway exposure' (cl 7.0(b) of SP 80) which objective (b) of SP 80 contemplates should be accommodated in the Drovers Place Precinct to 'complement surrounding activity centres'.
66 Because the proposed use is destination based and wide catchment, it is particularly suited and appropriately located at Drovers Place, with its high exposure to Wanneroo Road. It is consistent with '[t]he intent of the Central Precinct ... to provide for niche business ... uses that benefit from high exposure to Wanneroo Road ... '.
67 In contrast, given that the floor space for the proposed use is three times the size of typical hairdressers in shopping centres, and given that the price charged reflects the 'known risk' referred to by Mr Witherby, the proposed use is not particularly suited or appropriately located within walkable, mixed use activity centres.
68 On the economic evidence of Mr Haratsis referred to earlier, and as was not ultimately disputed by Mr O'Neill or the Commission, the proposed hairdressing with general training component use will complement rather than compete with or compromise the viability of nearby activity centres and will not undermine the established and planned activity centre hierarchy.
69 Finally, Mr O'Neill expressed the opinion that the words 'with a general training component' could not be effectively enforced by planning authorities. Mr Witherby, who has comparable experience to Mr O'Neill as a planner, including working for local governments, disagrees. He considers that a development approval reflecting the proposed land use would give rise to similar enforcement issues as are typically faced by local governments in relation to retail uses. He said that, in order to demonstrate compliance with a requirement that there be a 'general training component', it would be necessary to show that the development has a reasonable number of apprentices and that a number of them have gone to other hairdressing establishments over time. We find, on Mr Witherby's evidence, that a development approval reflecting the proposed land use would be enforceable.
70 'Growers Mart (Lot 810 and Lot 811 only)' is a Discretionary 'D' use under cl 2.1 of Table C of SP 80 in the Central Precinct. Clause 2.4 of Table C defines the term 'Growers Mart' as follows:
Growers Mart means land or buildings used for the wholesale distribution or sale by retail of:
(a) fruit, vegetables, nuts, grains, beans and herbs which are in a raw, unprocessed and unrefined state ("raw products"), save for any minimal processing and packaging undertaken off the premises necessary to bring the raw products to market; and
(b) milk, cheese and yoghurt,
and may include the washing and further limited preparation or packaging of the raw products on the premises in order to make them suitable for sale, provided that any such preparation or packaging on the premises may not result in a new or different product. The use does not extend to the sale of cooked, refined, canned or processed goods (such as potato chips or other processed foods normally associated with a shop or take [a]way food outlet) and excludes any use or activity that falls within the Scheme definitions of take away food outlet or restaurant, and the sale of any goods or products other than those expressly listed in this definition.
71 As noted earlier, SP 80 replaced SP 47. The applicants propose that the definition of 'Growers Mart' in cl 2.4 of SP 80 be replaced with the definition of that term under SP 47 which stated as follows:
Growers Mart - means any land or buildings used for the wholesale, distribution and retail sale of primary products including fruit and vegetables, meat, fish, bread.
72 It appears that the City proposed the change in the definition of 'Growers Mart' from SP 47 to SP 80 principally because it wished to remove the term 'primary products' which gave rise to litigation between Goldrange Pty Ltd and the City; see Goldrange Pty Ltd and City of Wanneroo [2011] WASAT 48 (Goldrange). In Goldrange, the Tribunal determined the meaning of the expression 'primary products' in the definition of 'Growers Mart' and provided detailed guidance to the parties in relation to products falling within the term 'primary products'.
73 In our view, the definition of 'Growers Mart' in SP 47 is preferable to the definition in SP 80 for the following three reasons.
74 First, as Mr Witherby explained in his witness statement, modern drafting of planning instruments 'looks to describe items at the most general (higher order) level possible, so as to avoid overly detailed control that creates complexity and rigidity'. The definition in SP 80 is extraordinarily and unnecessarily complex and detailed.
75 Secondly, although the definition of 'Growers Mart' in SP 47 had its own difficulties and gave rise to the dispute resolved in Goldrange, that decision provides the necessary interpretation and guidance as to the meaning of the expression 'primary products'. Furthermore, insofar, as appears to be the case, that aspects of the reasoning in Goldrange have been introduced into the terms of the definition in SP 80, that is inappropriate and unnecessary. It is preferable to maintain a more simple definition and apply it with the benefit of the decision and reasoning in Goldrange.
76 Thirdly, the definition of 'Growers Mart' in SP 80 introduces new, undefined terms and concepts which may well give rise to further litigation.
77 The correct and preferable decision in this review is to add 'Hairdresser with a general training component and with a minimum area of 150m2 (Lot 810)' and 'Large Format Liquor Store with a minimum area of 1,250m2 (Lot 811)' land uses to the other discretionary uses in cl 2.1 of Table C in SP 80 and to substitute the definition of 'Growers Mart' in cl 2.4 of Table C in SP 80 with the definition of that term in SP 47.
78 Mr O'Neill expressed the opinion, and the Commission contended, that the additional uses proposed by the applicants 'would represent an incremental, but significant change to the function and character of the [Drovers Place] complex, which would be inconsistent with the intent of SP 80'. We disagree.
79 The historic and current 'Growers Mart' use is a destination based and wide catchment use. As Mr Witherby explained in his witness statement, Drovers Place 'has potential to further develop as a destination based precinct with businesses that draw on a wide but thin catchment and which require excellent access to the main arterial road network'. The proposed additional uses share the destination based and wide catchment characteristics of the 'Growers Mart' use and require the high exposure afforded by the site's location. For this and other reasons discussed earlier, the proposed additional uses are relevantly 'niche business ... uses'.
80 Furthermore, while the proposed additional uses, like the 'Growers Mart' use, are particularly suited and appropriately located at Drovers Place, they are not particularly suited and appropriately located within walkable, mixed use activity centres.
81 The location of these uses at Drovers Place will complement rather than compete with or compromise the viability of nearby activity centres and will not undermine the established and planned activity centre hierarchy.
82 The definition of 'Growers Mart' in SP 47 is preferable to the definition in SP 80 and should therefore be substituted for it.
83 It follows that the application for review should be allowed and the amendments sought by the applicants made to SP 80.
(i) The following uses are added as Discretionary 'D' uses within the Special Use Zone for Lots 810, 811, 1 and 132 in cl 2.1 of Table C of SP 80:
(ii) The definition of 'Growers Mart' in cl 2.4 of Table C of SP 80 is deleted and replaced with the following definition:
'Growers Mart means any land or buildings used for the wholesale, distribution and retail sale of primary products including fruit and vegetables, meat, fish, bread.'
I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(2011) 244 CLR 390
(2011) 281 ALR 694
(2002) 122 LGERA 433