Town planning - Conditions of development approval - Public art - Underground power - Whether conditions can be lawfully imposed - Nexus - Whether conditions fairly and reasonably relate to proposed development - Whether conditions reasonable and appropriate - Requirement to increase width of access ramp from 3.0 metres to 4.0 metres - Traffic safety, convenience and efficiency

Planning and Development Act 2005 (WA), s 252(1)

State Administrative Tribunal Act 2004 (WA), s 27(2)

Town of Vincent Town Planning Scheme No 1, cl 6(3)(b), cl 9, cl 10, cl 37(5)(b), cl 38(3), cl 38(5), cl 38(7), cl 47, cl 47(1), cl 47(2), cl 47(3), cl 47(4), cl 47(5), cl 47(6), Sch 1

Decision of respondent to grant conditional development approval for demolition of an existing office/warehouse and construction of a mixed use commercial/residential building at No 658 (Lot 3 DP 541) Newcastle Street, Leederville varied by deleting condition (vii)(e), deleting the words "footpaths adjacent to the subject land are" and substituting "concrete crossover on Newcastle Street is" in condition (xv) and imposing new condition (xxiii) "Signage shall be installed and maintained on the Carr Place facade and within each carpark stating that exiting vehicles are to be given priority by entering vehicles"

Respondent : SJB Town Planning & Urban Design (Town Planners)

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433

Newbury District Council v Secretary of State for the Environment [1981] AC 578

Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98

Ienco v City of Stirling [2004] WATPAT 226

1 These proceedings involved a review of conditions of development approval in relation to a four level above basement car parking mixed use commercial/residential development.

2 The Tribunal determined that conditions requiring the provision of public artwork at a minimum of 1% of the estimated cost of the development and the provision, at the developer's cost, of underground power to the development, are each capable of lawful imposition and are reasonable and appropriate in the circumstances. In particular, each condition fairly and reasonably relates to the approved development, because it arises from charges precipitated by the development, namely, the introduction of commercial occupants and residents on the site. The occupants and residents will form part of the community, the identity of which the public art condition seeks to develop and promote. Furthermore, the conditions will benefit the amenity of the occupants and residents of the approved building. The fact that the conditions would also benefit the wider community does not make the conditions unlawful, unreasonable or inappropriate.

3 The Tribunal also determined that a condition which requires one­way vehicular access ramps to be increased in width from 3.0 metres to 4.0 metres is not reasonable or appropriate and should be deleted from the approval. Unquestioned and uncontradicted traffic evidence presented by the developer showed that the development facilitates safe, convenient and efficient access in the circumstances. An increase in width from 3.0 metres to 4.0 metres would not enable two vehicles to pass one another, but may give rise to a false impression that two vehicles are able to pass, thereby causing traffic conflict.

4 The application for review was allowed in part and the conditions of development approval were varied.

5 These proceedings involve an application brought by Lavenda Pty Ltd, Antonio Percudani and Evelyn Monica Percudani (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Town of Vincent (Town or Council) to grant conditional development approval for the demolition of an existing office/warehouse and the construction of a four level above basement car park mixed use commercial/residential building at No 658 (Lot 3 on deposited plan 541) Newcastle Street, Leederville (site). The site is located near the intersection of Newcastle Street and Carr Place and has a frontage to both of these streets. The Newcastle Street frontage is splayed and approximately 15.3 metres in length. The Carr Place frontage is approximately 13.8 metres in length.

6 The approved development contains:

• a basement level accessed via a 3.0 metre wide ramp down from Carr Place comprising 12 car bays, bicycle parking and two storage areas;

• a mezzanine level accessed via a 3.0 metre wide ramp up from Carr Place comprising 5 car bays;

• ground and mezzanine level commercial floor space set back 1.2 metres from the Newcastle Street frontage;

• ground level lobby set back 2.1 to 3.6 metres from the Newcastle Street frontage;

• second and third levels each comprising 368 square metres of commercial floor space; and

• a fourth level comprising a two bedroom residential apartment with a floor area of 93 square metres and a one bedroom residential apartment with a floor area of 60 square metres.

7 The development application was made on 20 April 2006. At its meeting on 25 July 2006, the Town granted development approval subject to 22 conditions. An application seeking review of four of the conditions was filed on 22 August 2006.

8 The application for review is in respect of the following conditions:

"(iii) prior to the issue of a Building Licence, designs for artwork(s) valued at a minimum of 1% of the estimated total cost of the development ($24 500) shall be submitted to and approved by the Town, OR alternatively, the applicant/owner shall pay a cash-in-lieu contribution of $24 500, subject to the Town agreeing to this arrangement. The artwork(s) shall be in accordance with the Town's Policy relating to Percent for Art Scheme and be developed in full consultation with the Town's Community Development Services with reference to the Percent for Art Scheme Policy Guidelines for Developers. The artwork(s) shall be installed prior to the first occupation of the development, and maintained thereafter by the owner(s)/occupier(s). The artwork contribution of $24 500 shall not be used for the provision of underground power, and all costs associated with the provision of underground power shall be met by the owner(s);

(iv) the provision of underground power in Newcastle Street road reserve to the property and all costs associated with the provision of underground power shall be met by the owner(s);

...

"(vii) prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating the following:

...

(e) the ramps to Carr Place are to be widened to a minimum of 4 metres while maintaining the enclosed stairwells;

(xv) in keeping with the Town's practice for multiple dwellings, commercial, retail and similar developments the footpaths adjacent to the subject land are to be upgraded, by the applicant, to a brick paved standard to the Town's specification. A refundable footpath upgrading bond and/or bank guarantee of $2520 shall be lodged prior to the issue of a Building Licence and be held until all works have been completed and/or any damage to the existing facilities have been reinstated to the satisfaction of the Town's Technical Services Division. An application to the Town for the refund of the upgrading bond must be made in writing;"

9 The site is zoned "Urban" under the Metropolitan Region Scheme and "Commercial" under the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme). Pursuant to cl 10 of the Scheme, the site is located within Precinct P4 Oxford Centre. The site is located within the "core area" identified in the relevant precinct plan, which "predominantly contains pedestrian-based retail and business/commercial land uses". The site is also identified in the precinct plan as located within the "Central Area". Design guidelines for the Central Area in the precinct plan state that built form is to promote principles including the following:

"Encouragement of cultural relevance of building forms to the surrounding community (through architectural design or the use of public art)." (cl 4(iii)(f))

10 Clause 47(1) of TPS 1 authorises the Council to make planning policies which are to relate to an aspect or aspects of development control or any other matter relevant to the Scheme. Clause 47(2) provides that, in preparing a draft planning policy, the Council is to have regard to, among other considerations, the conservation of the amenities of the locality. Subclauses (3) to (6) of cl 47 set out requirements for public advertising and notification of draft planning policies, review of draft planning policies having regard to any written submissions, determination as to whether to adopt draft planning policies, with or without amendments, and advertising of the Council's determination. Of particular significance in this review are Policy No: 3.7.1 - Parking and Access (Parking and Access Policy) and Policy No: 3.5.13 - Percentage for Public Art (Public Art Policy), both of which were made by the Council under cl 47 of TPS 1.

11 Clause 38(3) of TPS 1 relevantly provides that the Council (and the Tribunal on review) may refuse or approve an application for development approval. Clause 38(7) provides that the power to approve an application for development approval includes the power to approve the application either unconditionally or subject to such conditions as the Council (or the Tribunal on review) considers to be appropriate. Clause 38(5) provides that, without limiting the scope of the discretion to determine an application under sub­clause (3), the Council (and the Tribunal on review) is to have regard to considerations including the following:

"(a) the provisions of this Scheme and of any other written law applying within the Scheme area including the Metropolitan Region Scheme;

(e) any planning study approved by the Council; ...

(g) the orderly and proper planning of the locality; [and]

(h) the conservation of the amenities of the locality; ... "

12 The applicants contend that a planning study approved by the Council, namely the Oxford Centre Study (2000) prepared by Taylor Burrell Town Planning and Design, is relevant to the review.

13 The term "amenity" is defined by cl 9 and Sch 1 of the Scheme to mean "all those factors which combine to form the character of the area to residents and passers by and shall include the present and likely future amenity".

14 In Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 at [57], McHugh J in the High Court of Australia endorsed the test for the validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 in the following terms:

"A condition attached to a grant of planning permission will not be valid therefore unless:

1. The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.

2. The condition reasonably and fairly relates to the development permitted.

3. The condition is not so unreasonable that no reasonable planning authority could have imposed it."

15 Mr A Roberts, counsel for the applicants, contends that condition (iii) cannot be lawfully imposed, because it does not fairly and reasonably relate to the approved development, contrary to the second Newbury test. In Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181, a case concerning the review of a condition of subdivision approval which required that an existing unsealed road be upgraded and sealed, the Town Planning Appeal Tribunal determined in relation to the second Newbury test as follows:

"The test of the validity and scope of a condition in this State is whether it fairly and reasonably relates to the development. The decision of [Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 58 ALJR 386], although in the context of Queensland legislation, stands for the proposition that should have application in Western Australia: the condition can be said to reasonably relate if it arises from changes precipitated by the development or subdivision. If it does reasonably relate, then it is not fatal if the condition also benefits the public at large to a greater or lesser degree.

A condition cannot arise solely from the existence of a public need which bears no relationship to the subdivision. The requirement that a condition reasonably relates to the subdivision does not, therefore, allow the Commission or the local authority to use the subdivision or development as a trigger for a future need that does not arise, in part, from the project. There is no justification for the use of conditions to promote the community infrastructure simply because the developer has come forward for approval."

16 Mr Roberts notes that the objective of the Public Art Policy, in accordance with which condition (iii) has been imposed, is "to develop and promote community identity within the Town of Vincent by requiring commissioned public artworks as part of private development projects within the Town of Vincent". Mr Roberts submits that, in order for the disputed condition to be capable of imposition, it would be necessary to identify some change precipitated by the development, and in particular some change precipitated by the development that relates to community identity, which requires a public art contribution. Mr Roberts submits that the development and promotion of community identity does not simply relate to the future occupants of the site, but is a broader notion relating to the public at large. Mr Roberts also submits that there is nothing in the mere presence of the approved building which gives rise for a need for public art.

17 Mr SJ Bain, a consultant town planner who both represented and gave evidence on behalf of the Town, contends that the disputed condition is valid, as it results in the upgrading of the amenity of the locality and is implemented by a planning policy of the Town.

18 The Tribunal considers that condition (iii) arises from changes precipitated by the development, namely, the introduction of commercial occupants and residents on the site. The occupants and residents will form part of the relevant community, the development and promotion of the identity of which is the stated objective of the Public Art Policy. Moreover, it is apparent from the terms of the Public Art Policy and the Percent for Art Scheme Policy Guidelines for Developers (Guidelines), which is referred to in condition (iii), that the condition involves the conservation of factors which combine to form the present and likely future character of the area to residents and passers by, that is, its amenity. The policy statement of the Public Art Policy states that "proposals for commercial, non­residential, and/or mixed residential/commercial development over the value of $500 000 are to set aside a minimum of one (1) percent of the estimated total project cost for the development of public artworks which reflect the place, locality and/or community". The Guidelines state that "the primary purpose of this scheme is to provide artworks that are pleasing and accessible to the public as well as users of your project/building and which will last the life of the project/building" and "artworks accessible by the public contribute to the overall feeling of community wellbeing and enrich the texture of civic life". These provisions are consistent with general objective (b) of TPS 1, namely, "to protect and enhance ... the social, physical and cultural environment": cl 6(3)(b).

19 The introduction of commercial occupants and residents within the approved building involves a change which precipitates the public art condition, because the condition develops and promotes community identity in respect of the community of which they form part and benefits their amenity. Although cl 1(v) of the Public Art Policy states that "the public artworks are to be clearly visible to the general public" and both the Public Art Policy and the Guidelines contemplate a general public benefit to the wider community from the installation of public art, as the Town Planning Appeal Tribunal determined in Perrymead Investments Pty Ltd v Western Australian Planning Commission, "it is not fatal if the condition also benefits the public at large to a greater or lesser degree". Condition (iii) is, therefore, capable of being lawfully imposed.

20 Alternatively, Mr Roberts contends that, if capable of imposition, condition (iii) should not be imposed in the circumstances of the case for essentially four reasons. First, Mr Roberts submits that the Council imposed the condition by an inflexible application of the Public Art Policy without regard to the circumstances. Second, Mr Roberts submits that the imposition of a condition based on a flat percentage is flawed and not a proper approach. Third, Mr Roberts notes that the built form guidelines in the precinct plan refer to the principle of "encouragement of cultural relevance of building forms to the surrounding community through architectural design or the use of public art" (emphasis added), and relies on the evidence of Mr Paul Kotsoglo, a consultant town planner, that "the building is an architect designed premises, which has taken on board the requirements of the Town's policies in regard to design, built form, façade treatments, etc and therefore it shall already substantially contribute to the character and interest of the area, without the need to artificially impose the application of what I consider to be tokenistic artwork on the premises". Mr Roberts submits that the development involves a stylish, contemporary building which is consistent with other buildings in the locality and which, of itself, contributes to streetscape and amenity, obviating a need for public art on the site. Finally, Mr Roberts submits that the Town has not, in its evidence, provided a factual foundation upon which the Public Art Policy should be applied.

21 In his statement of evidence, Mr Kotsoglo presented three other arguments as to why the condition should not appropriately be imposed. First, Mr Kotsoglo contends that the Public Art Policy "takes a dramatically different position from the Town of Vincent Oxford Centre Study 2000, which had its focus on public spaces and the public realm, and is a misinterpretation of the Study's intentions with regard to improvement of the locality". Second, Mr Kotsoglo suggests that there has not been a coherent approach in relation to requiring the provision of public art within private developments in the Town's local government area. Mr Kotsoglo considers that the lack of coherence is apparent from the Council's approval, in March 2005, of the deletion of a condition of development approval which required the incorporation of public art in accordance with the Public Art Policy in a mixed use development at Nos 228 - 232 Carr Place, on the basis that an equivalent amount had been utilised towards the undergrounding of high power voltage lines, and a decision of a former Minister for Planning, in an appeal determined in December 2000, to delete a condition of development approval in relation to a mixed use development at No 666 Newcastle Street which required a lump sum cash contribution of $11 000 for the installation of a piece of public art. Third, Mr Kotsoglo considers that it is not appropriate to impose the condition, because of the failure of the Town to amend TPS 1 and make the Public Art Policy a provision of the Scheme.

22 The Tribunal considers that the condition is appropriate and reasonable in the circumstances of the case.

23 It may be correct, as Mr Roberts submits, that the Council inflexibly applied the Public Art Policy in imposing the disputed condition, without regard to the particular circumstances. As Justice Barker held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [25], "an administrator exercising discretionary power will be found to have acted ultra vires if the discretion is exercised inflexibly, by application of a policy without regard to the merits of a particular case". However, the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: State Administrative Tribunal Act 2004 (WA) s 27(2). The Tribunal does not determine the review in relation to condition (iii) by an inflexible application of the Public Art Policy.

24 Plainly, the specification of developments over the value of $500 000 and 1% of the estimated total project cost are each arbitrary criteria. The policy, and a condition based on the policy, could have specified no minimum value or a different minimum value and any percentage of estimated total cost.

25 However, the selection of 1% of the estimated total project cost for developments over the value of $500 000 is, of its nature, a reasonable and appropriate requirement, because it ensures that minor developments are excluded, substantial, rather than token, public art, at a cost of at least $5000, will be provided within developments, the amount or at least value of the art is generally proportionate to the scale of the development and the cost of the art is proportionately minor in the context of the overall development cost. It is significant, also, that the specification of $500 000 and 1% has been the subject of a public advertising and notification process under cl 47 of the Scheme. Furthermore, although the 1% policy is the starting point in determining whether to impose a public art condition and, if so, what its terms should be, it is not necessarily the end point. As Barker J held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission at [26], "[a] relevant policy, provided it is not ultra vires, may therefore be regarded as one relevant consideration which the administrator is, effectively, bound to take into account". As his Honour held at [24], a policy "is not intended to replace the discretion of the [administrator] in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it". The Tribunal does not, therefore, consider that the specification of 1% of the estimated total project cost in the Public Art Policy is flawed or not a proper approach.

26 In assessing whether a condition for public art should be imposed in the circumstances of a particular case and, if so, in assessing how the condition should be framed, it is appropriate to take into consideration whether the proposed development already incorporates original public art or, because of its outstanding design, in itself comprises original public art. The proposed development in this case is an attractive, contemporary building. However, it does not already incorporate original public art and is not of outstanding design so as to, in itself, comprise public art. Furthermore, although cl 4(iii)(f) of the precinct plan contemplates the encouragement of cultural relevance of building forms to the surrounding community through architectural design or public art, the Public Art Policy is a consideration to which the Tribunal is required to have regard. While the development is an attractive, contemporary building, it does not satisfy the objective of the Public Art Policy unless the disputed condition is imposed.

27 Mr Roberts' submission that there is no factual foundation in the Council's evidence upon which the Public Art Policy should be applied is misplaced. As Barker J held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission at [24], "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". Given that the Public Art Policy has been made in accordance with the process set out in cl 47 of the Scheme, the relevant enquiry is not why, in the circumstances of the case, the Policy should be applied, but rather why, in the circumstances of the case, the Policy should not be applied.

28 The Tribunal does not accept any of Mr Kotsoglo's three additional arguments.

29 If it is the case that the Public Art Policy and Guidelines reflect a different position to the study, that does not reduce the weight which should appropriately be given to the Policy under the Scheme. It has not been suggested that the Policy is not soundly based or has not been made in accordance with the Scheme.

30 The evidence does not establish that there has been an incoherent approach to the application of the Public Art Policy such that its intent should not be manifested by a condition of the approval in question. In this regard, it appears that the Council had not required the undergrounding of power in its original grant of development approval in relation to the mixed use development at Nos 228 - 232 Carr Place. In those circumstances, the Town's decision to delete the requirement for public art provision on the basis that the applicant had utilised the money towards undergrounding of power is explicable. As the assessing officer observed, "the request provides for an opportunity to positively enhance the existing streetscape" in a manner which was not otherwise required of the developer. In the determination of the appeal in relation to No 666 Newcastle Street, the former Minister for Planning observed as follows:

"While the Town's objective [in a predecessor of the current Public Art Policy] is commendable, I am inclined to agree that a condition such as this is difficult to enforce. Conditions of planning consent need to be directly related to the development, such as securing compliance with a statutory provision, or the development contributes to the need for them in some way. While art in public places is a desirable element of visual urban design, development itself does not give rise to the need for public art."

31 For reasons set out earlier, the Tribunal does not agree with the former Minister's conclusion as to whether the condition is capable of imposition. The condition imposed in this case is not difficult to enforce.

32 Mr Kotsoglo gave evidence that, to his knowledge, there are only three examples of public art which have resulted from the Public Art Policy. These are two façade treatments on buildings on Newcastle Street and one set of inset slabs in Oxford Street. However, Mr Bain gave evidence that "many developments in the Oxford Centre Precinct have made percentage for art contributions".

33 Finally, the fact that the Scheme has not been amended to reflect the Public Art Policy does not mean that the Policy should not relevantly be given weight in the circumstances of the case. As noted earlier, cl 37(5)(b) of the Scheme requires the Council (and the Tribunal on review) to have regard to, relevantly, the Public Art Policy.

34 The Tribunal, therefore, finds that condition (iii) is reasonable and appropriate and should not be deleted from the consent.

35 The existing building on the site obtains electricity from an aerial wire connected to a wooden power pole which is located approximately 3.0 metres from the western end of the Newcastle Street façade. The properties to the west of the site are serviced by underground power. The properties to the east of the site are services by aerial wires between wooden power poles. Consequently, unless condition (iv) were imposed, the Newcastle Street façade of the approved building would sit behind a power pole adjacent to its western end and electricity wires projecting east across the whole of the site's frontage at between levels 2 and 3.

36 Mr Roberts submits that the undergrounding condition does not arise from changes precipitated by the development. There is no suggestion that power cannot be obtained aerially from the power pole. Mr Roberts also relies on Mr Kotsoglo's evidence that it is not reasonable or appropriate to impose the condition, because it is "a disproportionate contribution by one developer to the power network serving the entire Oxford Precinct" and "it is clear that not all developments have been required to undertake the undergrounding of power in the Oxford Precinct".

37 Mr Bain gave evidence that the Town has consistently implemented this requirement in the precinct, and that many developments, including all of the properties to the west of the site, have provided underground power connection. Mr Bain also considers that the condition would add to the overall amenity of the precinct.

38 The Tribunal considers that the condition is capable of lawful imposition and should be imposed in the exercise of planning discretion. The condition reasonably relates to the proposed development, because it arises from changes precipitated by the development. As noted earlier, the development involves the introduction of commercial occupants and residents. The condition facilitates the conservation of the existing and likely future amenity of the locality, including the amenity of the occupants and residents of the approved development. In particular, the appearance of the development will be improved by the deletion of the wooden power pole and aerial electricity wires in front of the building and the occupants and residents of the building will have their outlook from the building to Newcastle Street improved.

39 It is reasonable and appropriate that the undergrounding of power by the developments to the west of the site be continued along the frontage of the site as part of the approved development. Although the power pole adjacent to the site powers the network which services other properties as well, as the provision of underground power to the subject property has a sufficient nexus to the approved development, the wider public benefit is not fatal to the condition. Moreover, in order for the occupants and residents of the approved development to obtain the visual and amenity benefit of underground power supply, it was necessary for the developers of sites to the west to have undergrounded the power supply adjacent to their properties. The applicants' contribution is not "disproportionate", because their development obtains the benefit of the developers' contributions to the west.

40 It follows that condition (iv) should not be deleted from the approval.

41 As noted earlier, the proposal involves two 3.0 metre wide ramps from Carr Place to serve the basement and mezzanine car parking levels. Condition (vii)(e) requires that the ramps be widened to a minimum of 4.0 metres.

42 The applicants relied on the evidence of Mr Behnam Bordbar, a traffic engineer, that, given the small number of bays and limited likely turnover, the fact that Carr Place is a dead-end road with low speeds due in part to traffic calming devices for vehicles entering from Newcastle Street, and the length of the ramps at only 6.5 metres, in the circumstances of the case, a one-way entry/exit to and from each car park is safe. In Mr Bordbar's opinion, it is not necessary, in these circumstances, for the driveways to allow both entry and exit at the same time. Moreover, the increase in width required by the condition from 3.0 metres to 4.0 metres would not enable vehicles to enter and exit at the same time and may give rise to a false impression that two vehicles are able to traverse the ramp in opposite directions and thereby cause traffic conflict. Although Mr Bordbar conceded that one-way entry/exit points would have some impact on traffic convenience and efficiency, he considers that the degree of impact is acceptable, given the likely traffic generation of the development and the characteristics of Carr Place. In particular, in the unlikely event that a vehicle is exiting the site at the same time as another vehicle proposes to enter, there is sufficient capacity in the Carr Place roadway for the entering vehicle to wait without undue effect on other traffic. However, Mr Bordbar suggested that the following additional condition should be imposed in the interests of convenience and efficiency:

"Signage shall be installed and maintained on the Carr Place façade and within each car park stating that exiting vehicles are to be given priority by entering vehicles."

43 Mr Bordbar's evidence was not questioned or contradicted. The Tribunal is satisfied, on the basis of this evidence, that the proposed development facilitates safe, convenient and efficient access for motorists, in accordance with the first objective of the Parking and Access Policy. Condition (vii)(e) is not required and may, in fact, result in traffic conflict. The condition should, therefore, be deleted from the approval.

44 Immediately prior to the commencement of the hearing, the parties agreed that condition (xv) should be amended to require the upgrading only of the existing concrete crossover on Newcastle Street. The Tribunal considers that the amended condition is reasonable and appropriate.

45 The Tribunal has determined that the conditions requiring the provision of public artwork at a minimum of 1% of the estimated cost of the development, that is, $24 500, and the provision, at the developers' cost, of underground power to the site, are each capable of lawful imposition and are reasonable and appropriate in the circumstances. In particular, each condition reasonably and fairly relates to the approved development, because it arises from changes precipitated by the development, namely, the introduction of commercial occupants and residents on the site. The occupants and residents will form part of the community, the identity of which the provision of public art within or adjacent to the development the condition seeks to develop and promote. Furthermore, the conditions will benefit the amenity of the occupants and residents of the approved building. The fact that the conditions would also benefit the wider Oxford Centre Precinct community does not make the conditions unlawful, unreasonable or inappropriate.

46 The Tribunal has also determined that a condition which requires one-way vehicular access ramps to be increased in width from 3.0 metres to 4.0 metres is not reasonable or appropriate in the circumstances of the case and should be deleted from the approval.

47 Finally, the Tribunal considers that an amended condition which requires the upgrading of the existing concrete crossover on Newcastle Street is reasonable and appropriate.

48 It follows that the application for review should be allowed in part and the decision of the Town to grant conditional development approval varied in accordance with these reasons.

2. The decision of the respondent to grant conditional development approval for the demolition of an existing office/warehouse and the construction of a mixed use commercial/residential building comprising offices and two multiple dwellings at No 658 (Lot 3 DP 541) Newcastle Street, Leederville is varied as follow:

(b) condition (xv) is amended by deleting the words "footpaths adjacent to the subject land are" and by inserting in their place the words "concrete crossover on Newcastle Street is"; and

"(xxiii) Signage shall be installed and maintained on the Carr Place façade and within each car park stating that exiting vehicles are to be given priority by entering vehicles".

I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER