State Administrative Tribunal (WA)|2016-04-13

The application for review is allowed.
The decision made by the respondent on 10 September 2015 to refuse development approval for development classified by the respondent as 'petrol filling station' at No 224 Clontarf Road, Hamilton Hill is set aside and a decision is substituted that development approval is granted under the Metropolitan Region Scheme and under the City of Cockburn Town Planning Scheme No 3 for the proposed development correctly classified under the City of Cockburn Town Planning Scheme No 3 as 'convenience store' involving the retail sale of petrol and convenience goods subject to the following conditions:
1. Prior to the lodgement of a building permit application, a Noise Management Plan shall be submitted to and approved by the City of Cockburn (City). The Noise Management Plan shall confirm that all recommendations made in the Environmental Acoustic Assessment submitted by Herring Storer Acoustics dated 10 October 2014 (Ref 18380-1-14211) and Additional Information dated 28 May 2015 have been incorporated into the proposed development and the design and location of all mechanical plant within the development will not result in noise emissions exceeding those set out in the Environmental Protection (Noise) Regulations 1997 (WA) (as amended). Recommendations and measures contained in the approved Noise Management Plan shall be implemented at all times to the satisfaction of the City.
2. Prior to the lodgement of a building permit application, a Traffic Management Plan shall be submitted to and approved by the City. The Traffic Management Plan shall ensure that all recommendations and measures outlined in the Traffic Impact Assessment Report can be implemented. Recommendations and measures contained in the approved Traffic Management Plan shall be implemented at all times to the satisfaction of the City. The Traffic Management Plan shall require that all petrol tankers, refuse trucks and all other medium rigid and larger vehicles servicing the site shall enter and exit from Clontarf Road and shall only access the site between 9 am and 4.30 pm.

(a) the location, number, size and species type of existing and proposed trees and shrubs, including calculations for the landscaping area;

(d) those areas to be reticulated or irrigated; and

Landscaping (including verge planting) shall be installed, reticulated and/or irrigated in accordance with the approved landscaping plan and maintained thereafter to the satisfaction of the City. The landscaping shall be implemented prior to commencement of operations and any species which fail to establish within a period of 12 months from planting shall be replaced to the satisfaction of the City.
Prior to the lodgement of a building permit application, a design audit shall be undertaken to identify any roadside and on-site safety and conflict points, any modifications to existing median islands and road seal, line marking and signage that may be required to accommodate site-generated traffic including any service/delivery, rubbish collection and fuel tanker vehicles. Any required measures identified by the design audit shall be implemented to the satisfaction of the City.
All stormwater shall be contained and disposed of on-site to the satisfaction of the City.
Walls, fences and landscape areas are to be truncated within 1.5 metres of where they adjoin vehicle access points where a driveway and/or parking bay meets a public street or limited in height to .75 metre.
All plant and equipment (such as air conditioning condenser units and communications hardware et cetera) shall be screened from public view to the satisfaction of the City.
The vehicle access ways, parking areas and crossovers must be designed, constructed and line marked in accordance with the City's requirements.
Prior to use of the development hereby approved, vehicle parking bays, vehicle manoeuvring areas, driveways and points of ingress and egress shall be sealed, kerbed, drained, line marked and made available for use to the satisfaction of the City.
The premises shall be kept in a neat and tidy condition at all times by the owner/occupier to the satisfaction of the City.
The development site must be connected to the reticulated sewerage system of the Water Corporation before commencement of any use.
Earthworks over the site and batters must be stabilised to prevent sand or dust blowing, and appropriate measures shall be implemented within the time and in the manner directed by the City in the event that sand or dust is blown from the site.
No washdown of plant, vehicles or equipment is permitted on the premises.
No vacuum services are to be provided for customer vehicles on-site.
The supply, storage or sale of liquefied petroleum gas (LPG) for refuelling purposes is not permitted.
Prior to commencement of the use of the site for petrol filling (post construction), a report from the builder/developer confirming compliance with the requirements of the acoustic report and that any structural recommendations of the report shall be incorporated into the development, to the satisfaction of the City.
During the construction phase, no activities causing noise and/or inconvenience to neighbours being carried out after 7 pm or before 7 am, Monday to Saturday, and not at all on Sunday or Public Holidays.
No bunting is to be erected on the site. (Bunting includes streamers, streamer strips, banner strips or decorations of similar kind).
No person shall install or cause or permit the installation of outdoor lighting otherwise than in accordance with the requirements of Australian Standard AS 4282 - 1997 Control of the Obtrusive Effects of Outdoor Lighting.
A minimum of ten (10) bicycle stands/racks that conform to Australian Standard 2890.3 shall be provided in close proximity to the entrance of the building prior to occupation of the building.
The hours of operation of the approved development are restricted to between 6 am to 10 pm seven days per week.
Prior to the commencement of the use of the site for petrol filling, a masonry wall of 2.4 metres in height and associated crash barriers shall be erected along the western boundary of the subject site (abutting No 222 (Lot 3) Clontarf Road) to the satisfaction of the City.
The three parallel car parking bays adjacent to the western boundary shall be used for staff parking only signed / marked accordingly to the satisfaction of the City.
Prior to the lodgement of a building permit application, a revised landscape plan shall be submitted to and approved by the City, identifying a minimum of 10% of the total site area being soft landscaped, with the landscape strip along the western boundary being increased in width to a minimum of 1 metre to allow for sufficient screening landscaping to be installed to the satisfaction of the City.
Notwithstanding the depiction of the roof element containing signage facing east on the architectural plans of the development, the roof element containing the signage shall be the existing predevelopment roof element without any increase in its size.
Prior to commencement of the use, the development shall incorporate Stage 1 vapour recovery and Stage 2 vapour recovery systems as described in the document entitled 'Vapour Recovery (VR1) Explained' by James Harris of Switch Project Management issued 30/12/2014.

I certify that this and the preceding [209] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

[1] Although nothing turns on it in this case, we note that the term 'convenience store', when used in the definition of the land use 'petrol filling station', does not mean the defined land use 'convenience store' in TPS 3. As noted earlier, prescribed definitions in Sch 1 of TPS 3 apply under cl 1.7.1 of the Scheme '[u]nless the context otherwise requires'. There are three contextual indications to the effect that 'convenience store', when used in the definition of 'petrol filling station', does not mean 'convenience store' as defined in the Scheme. First, the defined land use 'convenience store' includes 'the retail sale of petrol' in the second limb of paragraph (a) of that definition, whereas the definition of 'petrol filling station' distinguishes between the retail sale of petrol and a convenience store ('petrol filling station' 'means land and buildings used for the retailing of fuel and petroleum products and may include a convenience store ...'). Secondly, as noted earlier, the primary focus or emphasis of the land use definition 'petrol filling station' is on the retail sale of petrol or fuel and a 'convenience store', if it exists, would be secondary to that primary focus. It would make no sense for the secondary component to contain and repeat the primary focus or emphasis of the land use. Thirdly, the definition of 'petrol filling station' imposes a maximum floor area of 300m² on 'a convenience store' which may be included in a 'petrol filling station', whereas the definition of 'convenience store' already contains in paragraph (d) a similar, but not identical, floor area restriction. If 'convenience store', when used in the definition of 'petrol filling station', means 'convenience store' as defined in the Scheme, it would not need to impose a similar floor area restriction. Rather, the expression 'convenience store', when used in the definition of 'petrol filling station' in TPS 3, bears its ordinary meaning.

Goods Safety (Storage and Handling of Nonexplosives) Regulations 2007

Goods Safety Act 2004

Development (Local Planning Schemes) Regulations 2015

Administrative Tribunal Act 2004

Western Australia Act 1990

Planning and Assessment Act 1979

Protection (Noise) Regulations 1997

Development Act 2005

Planning Regulations 1967

PUMA ENERGY AUSTRALIA and CITY OF COCKBURN [2016] WASAT 36 (13 April 2016)

In addressing a submission made by an adjoining land owner over whose land the development site has an easement conferring a right of carriageway, the Tribunal also determined that the development application is not incompetent or incapable of approval in the absence of owner's consent given by the owners of the adjoining property. In this regard, the Tribunal determined that the reasoning and decision of the High Court of Australia in North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; (1996) 185 CLR 470 applies in relation to planning law in Western Australia.

Capelight Nominees Pty Ltd and City of Swan [2015] WASAT 85

Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52

Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44

Robertson and Shire of Murray [2009] WASAT 171; (2009) 67 SR (WA) 66

West Coast Enterprises Pty Ltd and Shire of Exmouth [2007] WASAT 316

The question in the present case is whether one provision in an instrument made by the Minister as delegated legislation prevails over a different provision in the same instrument. Were it not for the eschewing by Kirby P in Coffs Harbour of the approach based on s 109 of the Constitution to the operation of s 36 of the EPA Act, it would be tempting to adopt the 'covering the field' test as the appellant in its written submissions pressed upon the Court, notwithstanding that it appears to have fallen out of favour in some contexts not presently relevant: cf Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 224 ALR 625 at 636 [48]; [2006] HCA 8 at [48]. Close attention to the particular and complex provisions of cl 28D indicate an appearance of exhaustiveness on the subject of building heights within the Centre thereby creating an incompatibility and inconsistency between it and cl 30. I do not think that one is departing from the ordinary natural meaning of 'inconsistency' which, as Kirby P points out in Coffs Harbour, involves incongruity as well as incompatibility, by concluding that that incompatibility or incongruity or lack of harmony between the substance of the two provisions results not only from a comparison of the objectives and controls of each but also from the 'appearance of exhaustiveness' on the same subject matter of cl 28D with respect to development within the Centre with the consequence, as mandated by cl 28A, that cl 28D prevails to the extent of the inconsistency over cl 30.

PUMA ENERGY AUSTRALIA and CITY OF COCKBURN [2016] WASAT 36 (13 April 2016)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Legislation Cited (10)

Cases Cited (14)

PUMA ENERGY AUSTRALIA and CITY OF COCKBURN [2016] WASAT 36 (13 April 2016)