Town planning - Development application for increase in maximum number of patrons at existing licensed premises from 400 to 600 - Respondent granted conditional development approval for increase of 70 patrons - Application for review of conditions limiting increase to 70 patrons and requiring payment of cash-in-lieu for on site provision of car parking - Jurisdiction - Whether application to respondent was for development approval or under Health (Public Buildings) legislation - Whether development approval was required for increase in maximum number of patrons - Purposive interpretation of planning legislation to determine whether proposed increase was a "use" and therefore "development" - No evidence of why respondent had selected increase of 70 patrons - No evidence in favour of condition which limited increase to 70 patrons - Appropriate for Tribunal to consider whether development approval should be granted at all - Traffic generation - Car parking generated by proposed development not provided on site - Whether off street public car parking could be utilised for development - Informal arrangement for use of private car park - Impact of car parking by patrons in surrounding residential areas - Impact on residential amenity - Whether impact of current development was relevant in planning assessment of proposed intensification - Objective parking survey required - Whether condition requiring cash-in-lieu for on site car parking provision should be imposed - Words & phrases: "development", "use"

Health Act 1911 (WA), s 26, s 173, s 178, s 180

Health (Public Buildings) Regulations 1992 (WA), reg 7, reg 9, reg 9A

Interpretation Act 1984 (WA), s 18

Town Planning and Development Act 1928 (WA),

s 2, s 8A, s 36, s 38(4), s 38(5)

Development approval for an increase in the maximum number of patrons at the existing licensed premises from 400 to 600 dismissed.

ABC Developmental Learning Centres Pty Ltd v City of Canning [2004] WATPAT 232

Aznavour Pty Ltd v City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173

Bakker v City of Nedlands [2005] WASAT 106

City of Unley v Claude Neon Ltd (1983) 32 SASR 329; 49 LGRA 65

Conomos v Chryssochoides [1997] NSWLEC 163; (1997) 97 LGERA 113

Cooper Brookes (Wollongong) Pty Ltd v the Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297

Kaard v City of Nedlands [2005] WASAT 2

Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404

Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266

Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349

Mulcahy v Blue Mountains City Council (1993) 81 LGRA 302

Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277

Re Brian Lawlor Automotive Pty Limited v Collector of Customs (NSW) (1978) 1 ALD 167

Re Hare and Commissioner for Superannuation (1979) 2 ALN N662

Robert Clark v Pittwater Council (Brown C, LEC 10527 of 1998, 20 December 1999, unrep.)

University of Western Australia v City of Subiaco (1980) 52 LGRA 360

Vinson v Randwick Council [2005] NSWLEC 142

Oudman & Anor v City of Canning [2003] WATPAT 122

Proper characterisation of application to respondent

1 These proceedings involve an application for review of the determination by the Town of Vincent ("the respondent") of a development application for consent to an increase in the maximum number of patrons at existing licensed premises from 400 to 600 ("the DA"). The premises are known as the Paddington Alehouse and are located at No 141 Scarborough Beach Road, Mount Hawthorn ("the site").

2 The DA, as lodged on 24 September 2003, comprised a printed form which was filled out by hand, a Harm Minimisation and Management Plan, a House Management Policy, a Code of Conduct and a Management Plan. Subsequently, a Patron Parking Management Plan was submitted together with an amended Harm Minimisation Management Plan and an amended House Management Policy. The printed application form was entitled "METROPOLITAN REGION SCHEME Form 1" and "APPLICATION FOR APPROVAL TO COMMENCE DEVELOPMENT". The following was written by hand after the printed words "Description of proposed development": "INCREASE IN MAXIMUM ACCOMODATION BASED ON NEW REGULATION Providing for one person per 0.85m²". The "new regulation" referred to was an amendment to reg 7 of the Health (Public Buildings) Regulations 1992 (WA) ("the Health Regulations") which altered the area required per person in licensed premises having a floor area of 850 square metres or less from 1.0 square metre to 0.85 square metre.

3 On 7 December 2004, the respondent resolved to grant conditional approval to commence the development proposed in the DA. The respondent's determination was communicated to the owner of the site by a formal instrument of approval issued on 14 January 2005. Because of questions which have arisen in these proceedings in relation to the proper characterisation of the application to the respondent and its approval, it is necessary to set out this instrument of approval in full:

"THIS IS NOT A BUILDING LICENCE Fifth Schedule Class 42

LOT: 6 STRATA LOT NO: N/A STREET NO: 141

STREET: Scarborough Beach Road (Cnr Fairfield Street)

Name of owner of land on which development proposed:

Approval to commence development in accordance with the application for Town Planning Approval dated 22nd September 2003 for INCREASE IN ACCOMODATION/PATRONAGE NUMBERS AT EXISTING HOTEL and the attached plans dated 22nd September 2003 was GRANTED in accordance with the provisions of the Town of Vincent Town Planning Scheme and the Metropolitan Region Scheme subject to the following conditions:

(a) a CONDITIONAL INCREASE of seventy (70) additional patrons to the existing 400 to a maximum of 470, subject to review and support from the Chief Executive Officer, a two week consultation period and a report to Council after six months and 12 months performance assessment of the number of formal complaints and other relevant information regarding community impact;

(b) compliance with the Management Plans detailed under clause (iv);

(c) two (2) A-frame signs shall be provided and maintained by the applicant on both sides of Fairfield Street, south of Scarborough Beach Road at the applicant's expense, licensing and public liability cover, that displays the following information to the satisfaction of the Chief Executive Officer: "PARKING WARNING - Fairfield Street is time and residential use restricted at all times. Infringements up to $85. Alternative parking site information available at Paddington Alehouse. Thank you";

(d) ongoing compliance with all relevant Environmental Health, Engineering and Building requirements;

(e) all signage shall be subject to a separate Planning Approval and Sign License application being submitted and approved prior to the erection of the signage;

(f) the hotel management submit a revised Parking Management Plan should access to the Mount Hawthorn Plaza Shopping Centre car park become unavailable;

(g) prior to the additional 70 patrons being approved by the Director Liquor Licensing, the applicant/owner shall pay a cash-in-lieu contribution of $25,200 for shortfall of 10.08 car bays based on the cost of $2500 per bay as set out in the Town's 2004/2005 Budget; and

(h) visibly identifiable security/crowd controllers shall conduct external surveillance to manage patron behaviour as they arrive and leave the hotel on busy and weekend nights to the satisfaction of the Director Liquor Licensing and the Town;

to the satisfaction of the Chief Executive Officer.

PERSON(S), OWNER(S), BUILDER(S) AND DEVELOPER(S) UNDERTAKING DEVELOPMENT/CONSTRUCTION OF ANY KIND ARE HEREBY ADVISED OF A RESPONSIBILITY TO COMPLY WITH THE REQUIREMENTS OF THE DISABILITY DISCRIMINATION ACT 1992. FOR FURTHER INFORMATION ON THIS ACT, ENQUIRES SHOULD BE DIRECTED TO THE DISABILITY SERVICES COMMISSION ON TELEPHONE NUMBER (08) 9426 9200 OR TTY ON (08) 9426 2325.

SHOULD THE APPLICANT BE AGGRIEVED BY THIS DECISION A RIGHT OF APPEAL MAY EXIST UNDER THE PROVISIONS OF THE TOWN PLANNING SCHEME OR THE METROPOLITAN REGION SCHEME

This approval is valid for a period of TWO years only. If the development is not substantially commenced within this period a fresh approval must be obtained before commencing or continuing the development.

4 On 2 February 2005, Mr David Randall ("the applicant"), who is a director of Alfon Pty Ltd, the holder of the hotel licence in respect of the site, filed the application for review which commenced these proceedings. The applicant apparently selected the application form which specified, as the source of jurisdiction for the Tribunal, "the Metropolitan Region Town Planning Scheme Act 1959, s 35F(1)(b); Application refused". This was plainly an error. Section 35F of the Metropolitan Region Town Planning Scheme Act 1959 (WA) ("Metropolitan Region Act") provides that an applicant whose application under s 35E of that Act has been approved subject to conditions which are unacceptable to him or refused may apply to the Tribunal for a review of that approval or refusal. Section 35E(1) of the Metropolitan Region Act provides that a person who wishes to commence and carry out development in a "planning control area" shall apply in the prescribed form to the local government in the district of which the planning control area is situated for approval of that development. Section 35C of the Metropolitan Region Act provides that the Western Australian Planning Commission ("the Commission") may, by notice published in the Gazette and with the approval of the Minister, declare land within the Metropolitan Region to be a "planning control area". However, it does not appear that the site is located within a declared "planning control area".

5 The relevant enabling Act provisions, which confer jurisdiction on the Tribunal, and under which it appears the applicant has, in substance, brought these proceedings, are cl 33 of the Metropolitan Region Scheme ("the MRS"), made under the Metropolitan Region Act, and s 8A of the Town Planning and Development Act 1928 (WA) ("TPD Act"). Clause 33 of the MRS provides as follows:

"(1) An applicant for approval to commence development on land zoned under Pt III of the Scheme whose application has been refused by the Commission or local authority exercising the power duly delegated to it by the Commission or approved subject to conditions that are unacceptable to the applicant may, except where the refusal or conditional approval is in accordance with the provisions of an operative Town Planning Scheme or a Town Planning Scheme made or amended pursuant to s 35 of the Scheme Act, appeal to the Minister against such refusal or conditional approval.

(2) The provisions of Pt V of the Town Planning and Development Act 1928 and the Town Planning and Development Act (Appeal) Regulations 1979 apply to an appeal under subclause (1) of this Clause."

6 Section 36, which is in Pt V, of the TPD Act, provides, in part, as follows:

"(1) This Part applies if this Act or a planning scheme or any other written law gives the State Administrative Tribunal jurisdiction to carry out a review in accordance with this Part.

(2) Even if a planning scheme does not expressly give a person a right to apply to the State Administrative Tribunal for a review, in accordance with this Part, of a decision or matter, the planning scheme is taken to give that right if -

(a) the planning scheme is expressed as conferring on the person a right to appeal against the decision, or to refer the matter, under Part V of this Act; or

(b) the planning scheme is expressed as conferring on the person a right to appeal or apply for review in respect of the matter and the matter involves the exercise by the responsible authority of a discretionary power.

(3) Subsection (2) applies even if the planning scheme provides for the appeal, referral or application to be made otherwise than to the State Administrative Tribunal or, in the circumstances described in paragraph (b) of that subsection, otherwise then in accordance with Part V of this Act.

(4) A provision in a planning scheme of the kind described in subsection 2(a) or (b) has no effect other than the effect given to that provision by subsection (2).

(5) In subsections (2), (3) and (4) ­

7 Section 8A(1) of the TPD Act provides that if, under a town planning scheme, a grant of any approval is in the discretion of the responsible authority, a person has applied to the authority for such a grant, and the authority has refused the application or has granted it subject to any condition, the applicant may apply to the Tribunal for a review, in accordance with Pt V of that Act, of the responsible authority's decision.

8 In consequence of these provisions, the Tribunal has jurisdiction to review the respondent's determination in respect of the DA which was made under both the MRS (under delegation) and the Town of Vincent Town Planning Scheme No 1 ("TPS 1").

9 At the initial directions hearing in this matter, which took place before me on 11 March 2005, Mr Wilson, the applicant's solicitor, clarified that the application for review was in respect of conditions (a) and (g) imposed by the respondent. I indicated to Mr Bain, who represented the respondent, that the wording of conditions (a), (b) and (d) was such that the respondent's development approval lacked finality and/or certainty: Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349; City of Unley v Claude Neon Ltd (1983) 32 SASR 329; 49 LGRA 65; see also Aznavour Pty Ltd v City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173. I explained to Mr Bain that, irrespective of the merits of the dispute in relation to the conditions, the Tribunal could not lawfully grant development approval which included conditions (a), (b) and (d) as then drafted. In consequence, I directed the respondent to re-draft those conditions such that an approval would be final and certain. By letter dated 12 April 2005, the respondent advised that condition (d) was no longer pressed as a condition of approval. The respondent re­drafted the other two conditions as follows:

"(a) An increase of seventy (70) additional patrons to the existing 400 patrons to a maximum of 470 patrons;"

"(b) Compliance with the following Management Plans:

(i) Paddington Alehouse ­ Patron Parking Management Plan;

(ii) Paddington Alehouse ­ Harm Minimisation and Management Plan;

(iii) Paddington Alehouse ­ House Management Policy;

10 Section 38(4) of the TPD Act provides, among other things, that, unless that section does not apply because of s 38(5), the Tribunal is to be constituted "by an ordinary member sitting alone" when dealing with an application for review of the determination of, or conditions imposed in respect of, a planning application to commence a development of a value of less than $250,000. In the present case, the application stated that the development had a value of less than $250,000. Section 38(5) of the TPD Act provides that s 38(4) does not apply "if the President is of the opinion that the application is likely to raise complex or significant planning issues".

11 In the present case, the President of the Tribunal, the Hon Justice ML Barker, formed the opinion that the application is likely to raise complex or significant planning issues, and listed the hearing of the application before me.

12 The site is located on the south-western corner of the intersection of Scarborough Beach Road and Fairfield Street. Erected on the site is a two to three level hotel building, apparently built around 1920, and substantially and sympathetically refurbished in 1999 ­ 2000. The current trading hours of the Paddington Alehouse are 6.00 am to 12.00 midnight Monday to Thursday, 6.00 am to 1.00 am the following day on Friday and Saturday and 10.00 am to 10.00 pm on Sunday. There are 13 on­site car parking spaces in an undercroft below the southern end of the building and to the south of the building.

13 The site forms part of a commercial strip of properties along Scarborough Beach Road between the Boulevard in the west and Oxford Street in the east.

14 Immediately to the west of the site is a bottle shop, chemist and clothing shop fronting Scarborough Beach Road, which have a private car park behind with approximately 20 car parking bays, accessible through a public car park from Flinders Street and, through the driveway of the site and a right-of-way, from Fairfield Street. Across Scarborough Beach Road from the site is the Mount Hawthorn Shopping Centre, the anchor tenant of which appears to be Woolworths, and which also has a variety of shops and some takeaway food shops. The Mount Hawthorn Shopping Centre has a partially underground car park accommodating 55 vehicles, and a large at grade car park to its north accommodating 195 vehicles. The at grade car park is zoned "Special Use Car Park" under TPS 1. Both of the car parks of the Mount Hawthorn Shopping Centre are sign­posted "Customer Only 2 Hour Limit". There is a gate at the entrance of the partially underground car park, although the applicant indicated that it was never closed. There was no gate at either entrance of the at grade car park. The partially underground car park is accessible only from Flinders Street, whereas the at grade car park is accessible from both Flinders Street and Fairfield Street.

15 The only existing uses in the immediate vicinity of the site which appear to operate outside normal business hours are the Mount Hawthorn TAB Agency to the north­east of the site at Hobart Street, which closes at 10.00 pm on Fridays and at 9.00 pm on Saturdays, and a few cafes and restaurants.

16 The commercial strip continues along Oxford Street from Scarborough Beach Road in the north to Britannia Road and Salisbury Street in the south. The Scarborough Beach Road and Oxford Street commercial strips are surrounded by residentially zoned and used areas, which generally have a density coding of "R30". Residential properties begin across a narrow right-of-way immediately to the south of the site. It was common ground that the surrounding area, and particularly the area immediately to the south of the site, comprised a mix of original and new single dwellings and grouped dwellings.

17 At my request, during the hearing, the parties jointly prepared a marked-up locality plan which showed public and private car parks and on-street parking restrictions in the general vicinity of the site. This document, which became Exhibit 8, showed that there are two public car parks in close proximity to the site. There is a 30 bay public car park on Flinders Street approximately 30 metres west of the site and accessible through the rear private car park of the properties which immediately adjoin the site to the west. There is also a 30 bay road reserve car park on Hobart Street approximately 50 metres to 150 metres to the north-east of the site. The other two public car parks in the general vicinity are each approximately 250 metres from the site. These are the Coogee Street car park to the west, which has 51 bays, and the Oxford Street car park to the east, which has 32 bays. In addition to the Mount Hawthorn Shopping Centre car parks and the rear car park of the adjoining bottle shop, chemist and clothing shop, there is a private car park behind the TAB premises about 80 metres north-east of the site, although this latter car park is only accessible via a narrow lane way and is not particularly prominent.

18 There are six on-street car parking bays in the immediate vicinity of the site along Scarborough Beach Road. Parking in Fairfield Street and Flinders Street is subject to restrictions. The western side of Fairfield Street is restricted to residents only from 5.00 pm to 5.00 am and otherwise is subject to a one hour limitation. Parking on the eastern side of Fairfield Street is subject to a one­hour limitation at all times. Parking on both sides of Flinders Street is subject to a one­hour limitation to 5.30 pm. Thereafter it is unrestricted.

19 I undertook a view of the site and of the locality accompanied by the applicant and the representatives of the parties.

20 In January 1999, the owners of the site applied to the respondent for development approval for alterations and additions to the hotel involving, among other things, the modification and extension of an existing concrete deck along the Fairfield Street side of the building and the construction of a new internal courtyard on the western side of the building ("the 1999 DA"). According to the evidence of the applicant, because the respondent's officer's recommendation was that the 1999 DA should be refused in view of the shortfall in on­site parking and objections from nearby residents, the proponent amended the application by deleting the proposed extension of the Fairfield Street deck area. In addition, according to the applicant's evidence, by letter dated 12 April 1999, the proponent's architect "pointed out that under the Health (Public Buildings) Regulations the hotel had approval to accommodate 400 persons on the premises and advised that the hotel would abandon the decking component of the 1999 application and would not seek to increase its patron accommodation numbers (determined on a one person per square metre floor area basis) which would therefore remain at the then current/approved 400 persons figure".

21 On 27 April 1999, the respondent approved the 1999 DA as amended, subject to conditions including the following:

"(ix) the current approved accommodation numbers in accordance with the Health (Public Building) Regulations 1992 and the Health Act 1911 (as amended) shall not be increased."

22 The development the subject of the 1999 DA was physically commenced and the approved works were completed by 2000.

23 On 7 June 2002, reg 7 of the Health Regulations was amended so as to reduce the area per person required for licensed premises having a floor area of 850 square metres or less for the purposes of the Health Act 1911 (WA) ("Health Act") and the Health Regulations from 1.0 square metre per person to 0.85 square metre per person. According to the evidence of Mr Frank Iemma, an architect who gave evidence for the applicant, the maximum number of persons who could be accommodated in the subject premises, in accordance with reg 7 of the Health Regulations as it stood prior to 7 June 2002, was 400 persons (although the size of the public areas of the hotel was in fact 465.64 square metres, the lack of adequate toilet facilities reduced the maximum number of patrons from 465 to 400).

24 According to Mr Iemma's evidence, the effect of the development approval to the 1999 DA was to increase the size of the public areas of the hotel to 610.94 square metres. On his evidence, based on the Health Regulations at the time (one person per 1.0 square metre), 610 persons could have been accommodated. However, as noted above, the proponent's architect indicated that the maximum number of patrons would be limited to 400 and the 1999 DA was granted subject to a condition to that effect.

25 According to Mr Iemma, applying the area required per person for licensed premises as stated in the current reg 7 of the Health Regulations to the existing floor area, and taking into account the toilet provision, "the maximum numbers of Patrons allowable based on the 27 April 1999 Council 'approved design' with the Fairfield Street deck deleted is 652 persons". Mr Iemma was not required for cross­examination, nor was his evidence contradicted.

26 According to the applicant's evidence, the premises have a certificate of approval issued by the respondent pursuant to s 178(1) of the Health Act and the Health Regulations permitting a maximum of 400 persons to be accommodated on the ground floor of the building.

27 As noted above, on 24 September 2003, the development application the subject of these proceedings was lodged. On 20 December 2003, the applicant organised a public meeting in relation to the application.

28 On 13 April 2004, the respondent considered a report from its assessing officers in relation to the DA which recommended that conditional development approval be granted, subject to three conditions including the following:

"this approval for a period of 6 months only and should the applicant wish to continue the use (accommodation/patronage numbers) after that period, it shall be necessary to reapply to and obtain approval from the Town prior to continuation of the use. Within this 6 month period, monthly working group meetings shall be held by the applicant with Officers of the Town and Local Police Services to address any concerns raised, and that the matter be reported to Council for further consideration thereafter."

29 The respondent resolved to defer the DA.

30 On 23 November 2004, the respondent considered a second report from its assessing officers (two of the five of whom were co­authors of the first report) in which the officers recommended that conditional development approval be granted, subject to five conditions including the following:

"A CONDITIONAL INCREMENTAL INCREASE and of fifty (50) additional patrons every three (3) months from the existing four hundred to potentially a maximum of six hundred, subject to review and support from the Chief Executive Officer after each three monthly performance assessment of the number of formal complaints and other relevant information regarding community impact, however Council retains the right to review the incremental increase in totality within the first 12 month period should justified matters regarding detrimental community impact be reported." (Reproduced as written.)

31 The respondent resolved to defer the DA to its ordinary meeting on 7 December 2004 "so that letters can be sent to residents in the area advising them that the matter is being considered by the Council".

32 On 25 November 2004, a letterbox drop was conducted by the respondent's rangers. By 1 December 2004, 13 submissions objecting to the proposed development had been received.

33 On 7 December 2004, the respondent received a third report from its assessing officers (who were three of the five assessing officers in relation to the second report). The respondent's officers recommended the grant of development approval to the DA, subject to six conditions including:

"A CONDITIONAL INCREMENTAL INCREASE of fifty (50) additional patrons every six (6) months from the existing four hundred to potentially a maximum of six hundred, subject to review and support from the Chief Executive Officer after each six monthly performance assessment of the number of formal complaints and other relevant information regarding community impact, however Council retains the right to review the incremental increase in totality within the first 24 month period should justified matters regarding detrimental community impact be reported." (Reproduced as written.)

34 The minutes of the meeting of the respondent record that "debate ensued" in relation to the DA. An amendment was moved by Cr Kerr and seconded by Cr Lake that the condition set out above be re-drafted in the form of condition (a) as it was ultimately imposed by the respondent and that condition (g) be added. The minutes record only that "debate ensued", and that the amendment to what became condition (a) was carried unanimously. Similarly, the minutes record that "debate ensued" in relation to condition (g) and that it was carried unanimously. An advice note was then carried as follows:

"ADVISES the applicant that the Council has based this decision to not consider any further increase in patron numbers above 470 on the grounds that it is inconsistent with the Council's decision of 27 April 1999, most specifically condition (ix), that formed part of that decision."

35 The minutes record that the Presiding Member "advised that as there had been significant changes made to the recommendation, reasons must be stated" and the minutes set out the following "reasons":

"1. Consideration of complaints received by the public.

4. No additional parking proposed with the increase in numbers.

5. Previous acceptance of no increase in numbers for the additional floor area with reference to Council's Decision of 27 April 1999.

36 The site and the central part of the commercial strip fronting Scarborough Beach Road is zoned "District Centre" under TPS 1. The remainder of the commercial strip fronting Scarborough Beach Road and strip fronting Oxford Street is zoned "Commercial" under TPS 1. The area which surrounds the commercial strips is zoned "Residential" under TPS 1, generally with a density coding of "R30" under that planning instrument.

37 Clause 32 of TPS 1 provides as follows:

(1) A person shall not begin or continue development of any land or building in the Scheme area, unless it is a development exempted by Clause 33, without first having applied for and obtained planning approval.

(2) To avoid any doubt, development for which planning approval is required includes both use (which is the subject of Part 2 of this Scheme) and development (which is the subject of Part 3)."

38 Clause 13(1) of TPS 1 provides, in the conventional manner, as follows:

"The Zone Table indicates, subject to the provisions of this Scheme, the uses permitted in the Scheme Area in the various zones. The permissibility of any uses is determined by cross reference between the uses in the Use Class column on the left hand side of the Zone Table and the list of zones at the top of the Zone Table."

39 The Zone Table states that, in the District Centre Zone, "hotel" is a use designated by the letters "SA". According to cl 13(2), the letters "SA" mean that it is a use that is "not permitted unless the Council has exercised its discretion and has granted planning approval after given special notice in accordance with clause 37".

40 Clause 37(1) of TPS 1 provides that, where an application is designated with the letters "SA" in the Zone Table, the "Council is to direct the applicant to advertise the application in any manner that it considers to be appropriate". As noted above, in the present case, the respondent itself advertised the application through a letterbox drop, although this occurred over a year after the application was lodged. Clause 37(3) of TPS 1 provides that "written submissions in respect of an application advertised in accordance with this clause are to be lodged with the Council within the period and in the form (if any) prescribed in the relevant advertisement or notice". It appears from the officers' reports to the respondent, and from the objectors' letters tended, that 13 submissions were made in accordance with cl 37(3) of TPS 1.

41 Clause 38 of TPS 1 provides, in part, as follows:

"(2) In assessing an application, the Council -

(b) is to have regard to any written submissions lodged with the Council under cl 37(3).

(3) Subject to subclause (4) [which is not relevant], the Council may refuse to approve an application. ...

(5) Without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to -

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

(f) Any submission accompanying or related to the application;

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

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

(7) The Council's power to approve an application for planning approval includes the power to approve the application either

(b) subject to such conditions as the Council considers to be appropriate."

42 In accordance with cl 9 and Sch 1 of TPS 1, the following definitions relevantly apply in relation to the Scheme:

"'Amenity' means 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;"

"'Development' has the same meaning as given to the term in and for the purposes of the [TPD] Act;"

"'Hotel' means any land or building used for the overnight accommodation of patrons and may include facilities for consumption of beverages or a restaurant ... and which may be the subject of a hotel licence granted under the provisions of the Liquor Licensing Act 1988;"

43 Clause 10 of TPS 1 divides the Scheme area into designated "precincts" and states that there is a planning policy for each precinct. The site is located within the "Mount Hawthorn Centre" Precinct. The surrounding residential area is designated as the "Mount Hawthorn" Precinct, which has been divided by the respondent into a number of Residential Localities, including "Anzac" (to the south of Scarborough Beach Road) and "Ellesmere" (to the north of Scarborough Beach Road).

44 Clause 47 of TPS 1 provides that the respondent may make planning policies which are to "relate to an aspect or aspects of development control or any other matter relevant to this Scheme". The planning policies which are of relevance to the present application are Policy No:3.1.2 ­ Mount Hawthorn Centre Precinct Policy ("Centre Policy") and Policy No 3.7.1 ­ Parking and Access Policy ("Parking Policy").

45 The Centre Policy contains the following relevant provisions:

"Careful control is to be exercised over the nature of non-residential uses and their site layout and design to ensure that levels of noise, privacy and visual amenity are appropriate to any adjacent residential uses of land. ...

Adequate parking screened from streets and adjacent residences is to be provided."

Where it is considered that a particular development could have a detrimental impact on the amenity of the surrounding area (mainly adjacent residential development), it is to be subject to the advertising procedure set down in the Town of Vincent Town Planning Scheme No 1 and Town of Vincent Policy Manual. ...

Compliance with the Policy relating to Parking and Access."

"Adequate car parking is to be provided on-site to ensure that unreasonable commercial parking does not spill into adjacent residential streets."

46 The Parking Policy includes the following "objectives":

"1) To facilitate the development of adequate parking facilities and safe, convenient and efficient access for pedestrians, cyclists and motorists.

2. To ensure the adequate provision of parking for various services, facilities and residential developments and to efficiently manage parking supply and demand."

47 The section of the Parking Policy entitled "Policy Statement" includes the following:

"1) On-site parking is to be provided at a rate which adequately meets the demand generated by a particular use or activity as determined by the Town of Vincent. ...

Non-residential uses

Parking bays are to be provided at the rate specified in the following Land Use Parking Requirement Table, unless otherwise approved by the Council.

i) Parking requirements are to be calculated by rounding to the nearest whole number. ...

iii) Where the number of bays proposed for a development is less than the number required, the Town of Vincent may approve the parking situation in terms of the provisions of this Policy relating to Reciprocal Parking, Combined Parking, Shortfall Parking and/or Cash­in-Lieu. ...

v) "Maximum Number of Persons Approved for the Site" is the number approved for a licensed premises under the provisions of the Western Australian Health Act 1991 [sic] ­ Health (Public Buildings) Regulations 1992, (as amended)."

48 The Land Use Parking Requirement Table states as follows in relation to "number of car parking spaces" for a "hotel" activity:

"1 space per bedroom or 1 space per 3 beds provided, whichever is the greater, plus;

1 space per 3.8m² of public floor area or 1 space per 4.5 persons of maximum number of persons approved for the site, whichever is the greater."

49 The term "Combined Parking" in the Parking Policy means "parking facilities shared concurrently by a mixed-use development or separate uses on the one site". This is not relevant in the present case. The term "Reciprocal Parking" in the Parking Policy means "parking facilities serving separate uses or mixed-use development, but not shared concurrently". In relation to "Reciprocal Parking", the Parking Policy states as follows:

"Reciprocal parking arrangements may be considered acceptable where the Town of Vincent is convinced that the demand for parking by the uses proposed will not unreasonably coincide.

Where reciprocal parking is proposed, the Town of Vincent is to be satisfied that:

a) The parking facilities serving the proposed uses will be located on the one lot, or that parking arrangements are permanent (eg easement, amalgamation, legal agreement, restrictive covenant or any other formal arrangement the Town of Vincent may require);

b) Parking demand both in the immediate and long term can be satisfied;

c) No substantial conflict will exist in the peak hours of operation of the uses for which the reciprocal parking arrangements are proposed;

d) The uses being served by the parking arrangements are compatible (ie no overlap demand for parking facilities);

e) The number of parking spaces which may be credited from one use to another use does not exceed the number of spaces reasonably anticipated to be in excess of the requirement for the first use during its peak hours of operation;

f) A proposed change of use will comply with the reciprocal parking arrangements, or will satisfy the parking requirement by other means before approval is granted."

50 By the use of the term "Shortfall Parking", the Parking Policy permits a reduction of the number of car parking spaces required on the basis of the Land Use Parking Requirement Table, where the site has certain specified characteristics in relation to which a stated "adjustment factor" exists. In effect, "Shortfall Parking" permits a percentage reduction from the number of car parking spaces otherwise required by the Parking Policy. Reductions exist for, among other things, a site being within 400 metres of a bus stop, within 400 metres of one or more public car parks, and within a District Centre.

51 As noted above, in granting development approval to the DA, the respondent imposed a condition which required a cash-in-lieu contribution for car parking spaces not provided on-site. The Parking Policy states, in part, as follows in relation to cash-in-lieu contributions:

"Cash-in-lieu of parking is to be considered when non­residential developments have a shortfall of parking according to the requirements outlined in the Land Use Parking Requirement Table, as modified according to clause 10 [which relates to "Shortfall Parking"]. The Town may accept money for this shortfall to provide and/or upgrade parking bays in a nearby existing or proposed public parking facility, including on-street parking where appropriate.

This policy provision is not to be seen to be replacing the developer's responsibility to provide on-site parking, but rather as a mechanism to enable otherwise desirable developments, for which the full amount of parking cannot be provided on-site, to proceed. The provision of an adequate supply of parking is the intent of this provision and, as such, the following matters apply:

i) cash-in-lieu provisions are only to be permitted in localities where the Town already provides off-street public car parking which has spare capacity, or the Town is proposing to provide or is able to provide a public car park (including enhanced or additional on-street car parking where appropriate) in the near future, within 400m of the subject development;

ii) cash-in-lieu contributions may comprise all or part of the shortfall in on-site parking proposed for a development; ..." (Emphasis added.)

52 The Parking Policy also contains the following relevant provisions:

Kerbside parking cannot be used to satisfy the parking requirements of a commercial or a residential development unless the Town of Vincent is satisfied that parking demand can be met. The Town of Vincent may also consider a parking requirement to be satisfied by kerbside parking bays where the provision of on-site parking would be detrimental to the amenity of the area or incompatible with the character of built form of the area. ...

The City Council may, in the pursuit of orderly and proper planning and the preservation of the amenities of the locality, refuse a proposed development where inadequate on-site parking has been provided. This provision is to ensure consistency when determining whether to approve an application with parking shortfall. The additional shortfall will be required to be met using the cash-in-lieu contribution provision.

In determining whether the proposed development should be refused on car parking grounds, the following percentages should be used as a guide:

(i) If the total parking requirement for a development (after adjustment factors have been taken into account) is 10 bays or less, cash-in-lieu may be provided for any shortfall.

(ii) If the total requirement (after adjustment factors have been taken into account) is between 11 ­ 40 bays, a minimum of 15 per cent of the required bays is to be provided. ...

It should be noted that a proposed development may still be refused on the basis of non-compliance with car parking requirements, regardless of whether these provisions have been met." (Emphasis added.)

53 In their report to the meeting of the respondent on 7 December 2004, the assessing officers calculated the car parking requirement of the current use of the site and of the proposed development. These calculations were not questioned by either party. Based on the public floor area and the number of bedrooms, 175 car bays are currently required. Applying a combined adjustment factor for bus stops, car parks and location in a District Centre, the number of on-site car spaces required is 113.75 (rounded to 114). Given that 13 car bays are provided on-site, the relevant shortfall is 101 car bays. The DA does not propose any change in the public floor area or in the number of bedrooms. Applying the alternative basis for calculation, namely one space per 4.5 persons of maximum number of persons approved for the site plus one space per bedroom, the present shortfall (for 400 patrons, taking into account the combined adjustment factor and the number of car bays on-site) is 60 car bays. Undertaking the same calculation, but in relation to 600 patrons, the total shortfall (taking into account the combined adjustment factor and the number of car bays on-site) is 89 car bays.

54 As the number of on-site car parking spaces required by the Land Use Parking Requirement Table of the Parking Policy is the greater of that calculated by reference to one space per 3.8 square metres of public floor area and that calculated by reference to one space per 4.5 persons, curiously, the proposed significant increase in the number of patrons does not technically require any additional on-site car parking over and above the existing requirement. This is because, whereas presently 114 car spaces are required based on public floor area (in relation to which there is a shortfall of 101), that remains the requirement for the proposed development, as that number is greater than the 102 spaces (with a shortfall of 89 spaces) required on the basis of a per person calculation in relation to 600 patrons.

55 However, it is apparent from the traffic generation rates in the Parking Policy, which were not questioned by either party, that additional patrons do generate an increased requirement for car parking provision. In particular, 200 additional patrons at licensed premises generate 29 additional cars.

56 The site is located within an area designated as a "District Centre" by Statement of Planning Policy No 9 - Metropolitan Centres Policy for the Perth Metropolitan Region ("SPP 9"). Clause 3 of SPP 9 provides:

"The objectives of this policy statement are to:

establish a hierarchy of well located centres in the metropolitan region that will: ...

Promote District Centres to meet the weekly shopping and service needs of the community including the provision of offices and community facilities; and

encourage centres to be developed as the focus of the community and employment activities comprising a range of appropriate and commercial and community uses; [and]

ensure that centres are highly accessible, of a high standard of urban design and developed with due regard to the residential amenity of the locality; ... "(Emphasis added.)

57 In his opening, Mr Allanson, counsel for the applicant, raised two preliminary issues. First, he submitted that the application his client made to the respondent, was assessed and approved by the respondent, and is the subject of these proceedings for review, was an application not for development approval under the MRS and TPS 1, but rather for an "ascertainment", in accordance with the formula in reg 7 of the Health Regulations, of the maximum number of persons that may be accommodated in a public building, namely the Paddington Alehouse. Second, Mr Allanson submitted that the accommodation of an additional 200 patrons at the site did not require the grant of development approval.

58 Neither of these submissions had been foreshadowed to the Tribunal or to the respondent in the application or at the two directions hearings which preceded the final hearing of this matter. One of the arguments had been foreshadowed in the evidence of Mr Rowe, a town planner, which was filed and served on the second last business day before the hearing. Despite this, Mr Bain, who represented the respondent, indicated that he was able to proceed with the hearing, address the Tribunal in relation to the planning merits, and provide written submissions in relation to the preliminary issues after the conclusion of the hearing. The Tribunal subsequently received written submissions from the respondent and written submissions in reply from the applicant. The respondent later referred the Tribunal to a decision of the Town Planning Appeal Tribunal and the applicant made further written submissions in relation to it.

Proper characterisation of application to respondent

59 Mr Allanson referred the Tribunal to a number of provisions of the Health Act and of the corresponding Regulations. Section 26 of the Health Act authorises and directs every local government "to carry out within its district the provisions of this Act and the regulations". Section 178 of the Health Act provides, in part, as follows:

(1) A person shall not open or use a public building unless the local government has issued a certificate of approval in relation to the public building specifying-

(a) the purpose or purposes for which the public building may be used; and

(b) the maximum number of persons that the building may be used to accommodate. ...

(a) use a public building, or permit a public building to be used, for a purpose other than a purpose specified in the certificate of approval; or

(b) use a public building, or permit a public building to be used, to accommodate any number of persons in excess of the number specified in the certificate of approval. ..."

60 The term "public building" is relevantly defined in s 173 of the Health Act to mean "a building or place or part of a building or place where persons may assemble for ... entertainment, [or] recreational ... purposes".

61 I accept that the premises on the site are a "public building" for the purposes of the Health Act.

62 Section 180 of the Health Act provides, in part, as follows:

"(1) The Governor may make regulations providing for the safety and health of persons in public buildings.

(2) Without derogating from the generality of subsection (1), regulations may be made -

...

(f) limiting the number of persons that may be accommodated in a public building, and prescribing the minimum space to be provided for each person; ... "

63 In accordance with s 180(1) and s 180(2)(f) of the Health Act, the Governor made, and subsequently amended, reg 7 of the Health Regulations. That regulation states, in part, as follows:

"(1) Subject to this regulation and regulation 9A, the maximum number of persons that may be accommodated in a public building other than large licensed premises shall be ascertained in accordance with the Table to this sub­regulation."

64 As noted earlier in these reasons, the Table to sub-regulation 7(1) states that the area per person for licensed premises having an area of 850 square metres or less is 0.85 square metre per person.

65 Regulation 9 of the Health Regulations provides, in part, as follows:

"9 Application to vary certificate of approval

(1) Where a certificate of approval has been issued in relation to -

(a) a public building, a person may apply to the local government that issued the certificate to vary the purposes for which the public building may be used;

(b) a public building other than licensed premises, a person may apply to the local government that issued the certificate to vary the maximum number of persons that the public building may be used to accommodate.

(a) shall be made in the form of Form 3 in Schedule 2;

(b) shall be accompanied by the fee calculated in accordance with Schedule 1.

(3) Where a certificate of approval has been issued in relation to large licensed premises (including premises referred to in regulation 7A(2)), a person may apply to the local government that issued the certificate to use a measurement unit of 0.85m² per person to increase the maximum number of persons that the licensed premises, or a specified part of the licensed premise, may be used to accommodate.

(4) An application under subregulation (3) shall be made in the form of Form 3 in Schedule 2 and be accompanied by:

(a) a risk management plan that has been developed in accordance with ASNZS 4360;

(b) details of the type of number counting system ­

(i) that is, or is intended to be installed to monitor the number of persons entering and leaving the licensed premises or the specified part of the premises; and

(ii) that has been approved by the Executive Director, Public Health;

(c) such other information as is required by the local government for the purpose of the application; and

(d) the fee calculated in accordance with Schedule 1."

66 Regulation 3 defines the term "large licensed premises", used in reg 9(3), as licensed premises having an area of more than 850 square metres. Form 3 in Sch 2 to the Health Regulations is entitled as follows:

"HEALTH ACT 1911

HEALTH (PUBLIC BUILDINGS) REGULATIONS 1992

APPLICATION FOR VARIATION OF CERTIFICATE OF APPROVAL"

67 Clause 9A of the Health Regulations provides, in part, as follows:

"(1) On an application under regulation 9 a local government may vary the certificate of approval issued in relation to the public building that is the subject of the application in accordance with the application. ...

(3) A local government may -

(a) impose such conditions as it thinks fit in relation to a variation of a certificate of approval; and

(b) vary or revoke a condition imposed under paragraph (a) by written notice served on the occupier of the public building."

68 Mr Allanson submitted that the application made to the respondent in the present case was an "application" for an "ascertainment", in accordance with the formula in reg 7 of the Health Regulations, of the maximum number of persons that may be accommodated at the Paddington Alehouse under the Health Regulations, not an application under the MRS and TPS 1. He also submitted that the "application" was not an application to vary a certificate of approval under reg 9, because that provision did not permit such an application to be made in relation to licensed premises having an area of 850 square metres or less. I reject both of these submissions.

69 The application that was made to the respondent was, in both form and substance, an "application for approval to commence development" (to quote the words in bold at the top of the form which constituted the application). After the printed words "description of proposed development", the person who completed the form (identified as "Neil Randall") stated "increase in maximum accommodation based on new regulation providing for one person per 0.85m²". Although the person who completed the development application form referred indirectly to the amendment to reg 7 of the Health Regulations, he did so in the context of describing the "proposed development", namely an increase in the maximum accommodation permitted at the site based on the calculation of one person per 0.85 square metre.

70 It is also clear from the assessments that were undertaken by the respondent's assessing officers, that the application considered by the respondent was an application for "development approval", not an application under the Health Act and Health Regulations. On each occasion, the assessing officers recommended that conditional development approval be granted under the MRS and TPS 1 to the application. They did not recommend that the respondent grant approval to an application under the Health Act or Health Regulations. Mr Allanson relied heavily on a part of the report by the respondent's officers to its meeting on 7 December 2004 under the heading "Health Regulations" in which the officers noted that "the application pertains to increasing the maximum accommodation numbers of the hotel so that it is in accordance with the recent amendments to the Health (Public Buildings) Regulations 1992 (as amended), which allows local governments to review licensed premises, and alter the accommodation ratio from one person per 1m2 to 1 person 0.85m²". However the authors of that report recommended conditional development approval "in accordance with the provisions of the Town of Vincent Town Planning Scheme No. 1 and the Metropolitan Region Scheme". It is apparent from this and the other two reports to the respondent in relation to the DA, and from the minutes of 7 December 2004, that the respondent did not have before it for consideration, nor did it consider, an "application" under the Health Act or Health Regulations. Rather, the application which it had before it and which it sought to determine, was a development application.

71 Furthermore, although, as noted above, the applicant appears to have identified an incorrect enabling Act in the application which commenced these proceedings, it is to be noted that the source of jurisdiction which the applicant himself identified was s 35F of the Metropolitan Region Act, which concerns the refusal of an application "to commence and carry out development".

72 The Tribunal does not have jurisdiction to consider an application which was not made to a primary decision-maker. As the Tribunal has recently stated in Bakker v City of Nedlands [2005] WASAT 106 at [53], the following passage in Pearce, Australian Administrative Law at [266A] ("AAT Limited to review functions only"), "ought to be considered as equally applicable in this jurisdiction":

"Despite the broad power of the AAT to stand in the shoes of the decision-maker, it must be borne in mind that the power is exercisable only in relation to the decision under review. ... The AAT does not substitute for the decision-maker generally. Just as the AAT has no general power ... it has no general decision-making power. "The AAT is not a primary administrator. It is not the original depository of power and discretion under an enactment"; per Brennan J in Re Brian Lawlor Automotive Pty Limited v Collector of Customs (NSW) (1978) 1 ALD 167 at 175. Accordingly, if, for some reason, an issue before the AAT has not been the subject of a decision by the primary decision-maker, the Tribunal itself cannot assume to make a decision on the matter on the basis that the decision-maker could have made such a decision: Re Hare and Commissioner for Superannuation (1979) 2 ALN N662."

73 Therefore, although s 36(1) of the Health Act provides that "any person aggrieved by any order of decision of a local government may apply to the State Administrative Tribunal for a review of the order or decision", the present proceedings were not commenced under that section, nor could they have been so commenced, given that the respondent was not asked to make, and has not made a decision, under that Act.

74 Mr Allanson argued that reg 9 of the Health Regulations did not permit an application to be made to a local government to vary a certificate of approval for licensed premises having an area of 850 square metres or less in relation to the maximum number of persons that the premises may be used to accommodate. He, therefore, argued that a local government did not have power to vary a certificate of approval for such premises in that respect. He stressed that par (b) of reg 9(1) expressly excluded an application to vary the maximum number in relation to "licensed premises". He submitted that, consequently, there was effectively an obligation under reg 7 on the part of a local government to "ascertain" the maximum number of persons that may be accommodated at premises such as the Paddington Alehouse on the basis of the Table and that "there is no discretion given to local governments".

75 In Cooper Brookes (Wollongong) Pty Ltd v the Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297, Mason and Wilson JJ said at 320 that:

"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole."

In referring to the propriety of departing from the literal interpretation, Mason and Wilson JJ said at 321:

"It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions."

76 In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, McHugh JA (as his Honour then was) observed and held at 421 - 424 as follows:

"Ascertaining the ordinary grammatical meaning of a legislative provision is only the first step in the process of statutory construction. If the consequences of the literal or grammatical construction raise a real doubt as to Parliament's intent, the court is justified in refusing to give the words their literal or grammatical construction: [citations omitted]. ...

However, it is not only when words have been inadvertently used that a court is empowered to give a legislative provision a strained construction. A strained construction may be justified because words have been omitted: Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [[1971] AC850] (at 880 - 882); or because by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved: Jones v Wrotham Park Settled Estates [1980] AC 74 at 105, ... . As many of these cases show, the purpose of the legislation may require a meaning to be placed on the words of a particular provision which, standing alone, they cannot reasonably bear. ...

A purposive and not a literal approach is the method of statutory construction which now prevails; cf Fothergill v Monarch Airlines Ltd [1980] UKHL 6; [1981] AC 251 at 272 ­ 273, 275, 280, 291. In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act. ...

Once the object or purpose of the legislation is delineated, the duty of the court is to give effect to it in so far as, by addition or omission or clarification, the provision is capable of achieving the purpose or object."

77 Similarly, s 18 of the Interpretation Act 1984 (WA) states that, in the interpretation of a provision of a written law, a purpose that would promote the purpose or object underlying the written law shall be preferred to a construction that would not promote that purpose or object.

78 Mr Allanson submitted that, on a literal reading of reg 9 of the Health Regulations, the holder of a certificate of approval for licensed premises (having an area of 850 square metres or less) may not apply for a variation of the maximum number of persons specified in the certificate, and the local government in question does not, therefore, have power to consider and determine such an application. As no application can be made and considered under reg 9, the local government does not have a discretion under reg 9A to consider whether or not to approve a variation up to the maximum specified in reg 7 or to impose conditions in relation to the variation. Rather, according to Mr Allanson's submission, the local government is obliged under reg 7 to ascertain the maximum number of persons that may be accommodated at such premises by applying the formula of one person per 0.85 square metres.

79 The consequences of the literal interpretation advanced by Mr Allanson "raise a real doubt as to the [draftsperson's] intent": Kingston v Keprose Pty Ltd (supra) at 421. The legislative intent of reg 9, as ascertained from the provisions of the Health Regulations and the operative provisions of the Health Act generally, is to facilitate public health and safety by providing a mechanism for variation of certificates of approval which are required to specify both the purpose or purposes for which public buildings may be used and the maximum number of persons that such buildings may be used to accommodate. It is apparent from the legislation that the certificate of approval is a significant element in the public health and safety regime created by Parliament in relation to public buildings.

80 As noted above, it is an offence under s 178 of the Health Act to use a public building unless the local government has issued a certificate of approval in relation to that building specifying, among other things, "the maximum number of persons that the building may be used to accommodate". It is also an offence to use or permit a public building to be used to accommodate "any number of persons in excess of the number specified in the certificate of approval". As also noted above, s 180 of the Health Act permits the Governor to make regulations "providing for the safety and health of persons in pubic buildings". Regulation 8(1) of the Health Regulations requires that a certificate of approval "shall be displayed in a conspicuous position in the main entrance of the public building in relation to which it is issued and so that it is easily legible to a person who enters the main entrance of the public building". Regulation 8(2) provides that, if a certificate of approval is varied under reg 9A, "the reference in subregulation (1) to a certificate of approval is a reference to the certificate incorporating the variation that is current at the time of the display".

81 If reg 9 did not confer an ability on a person to apply to the local government that issued the certificate of approval in relation to licensed premises, which have an area of 850 square metres or less, a person using or permitting the relevant public building to be used to accommodate persons in excess of the number specified in the certificate of approval would commit an offence under s 178(3)(b) of the Health Act even though the number of persons accommodated might be less than or equal to the maximum number "ascertained" in accordance with the formula in reg 7. Moreover, if reg 9 conferred no power to vary a certificate of approval for licensed premises having an area of 850 square metres or less, in relation to the maximum number of persons that the public building may be used to accommodate, the certificate of approval that is required to be displayed in a conspicuous position under reg 8 would be misleading to the public. Furthermore, given that the ultimate purpose of a certificate of approval is to ensure public health and safety, it is appropriate that in relation to all public buildings, the local government has a discretion under reg 9A(1) to consider whether to vary the maximum number of persons that may be accommodated at licensed premises up to the maximum ascertained in accordance with the formula in reg 7, and to consider under 9A(3) whether it is proper to impose any conditions in relation to the variation proposed.

82 Moreover, in providing that the maximum number of persons ascertained in accordance with the Table is "subject to ... regulation 9A", reg 7 of the Health Regulations contemplates that the Table sets a maximum which is subject to a discretionary assessment by a local government in the course of the determination of an application to vary a certificate. The fact that reg 7 does not distinguish in its terms between licensed premises having a floor area of 850 square metres or less and all other types of public buildings is a powerful indication that it sets a maximum in relation to all types of public buildings, but in the context of, and subject to, a discretionary regime of approval.

83 The Tribunal considers that the literal interpretation of reg 9 of the Health Regulations advanced by the applicant does not conform or give effect to the legislative purpose, and indeed is contrary to the legislative purpose. It is necessary that there be a procedure for making an application to vary the maximum number of persons specified in a certificate of approval for licensed premises in order to avoid the commission of a criminal offence. It is necessary, to facilitate public health and safety, that certificates of approval, which are required to be prominently displayed in public buildings, are accurate. It is also appropriate, when dealing with matters of public health and safety, that the regulatory authority retain some discretion in order to be able to address particular facts and circumstances. On the other hand, there does not appear to be any policy reason as to why licensed premises smaller than "large licensed premises" should be treated anomalously, unlike all other types of public buildings, including large licensed premises.

84 The express omission of "licensed premises" from reg 9(1)(b) may be explicable on the basis that when "large licensed premises" were understandably excluded from that provision (as they were subject to a separate, and more onerous, variation approval regime in reg 9(3) and reg 9(4)), the draftsperson accidentally omitted the word "large". Whether that was the reason or not, the Tribunal must give effect to the legislative intention. A construction which gave effect to the express omission of licensed premises, other than large licensed premises, from the operation of reg 9(1)(b), would not give effect to the legislative intention.

85 Mr Allanson relied heavily on an extract from "guidelines" produced by the Department of Health which was quoted by the respondent's assessing officers and which stated, in relation to the amendment of reg 7 to reduce the area required per person from 1.0 square metre to 0.85 square metres, as follows:

"This is an administrative change that should be initiated by local government without cost or a Form 2 request by the operator. In most cases, this should only be a relatively simple calculation and should not require a remeasure of the entire premises".

86 However, the Tribunal considers that, consistently with the authorities referred to and s 18 of the Interpretation Act, on its proper construction, reg 9 does permit the holder of a certificate of approval for licensed premises of 850 square metres or less in area to apply to the local government to vary the number of persons who may be accommodated up to the maximum number calculated in accordance with reg 7. The local government has discretion under reg 9A as to whether to approve the application and in relation to conditions. The "guidelines" stated that there was no need for a "Form 2 request". Form 2 is an application for a certificate of approval, not an application for variation of a certificate of approval (which is Form 3). However, insofar as the "guidelines" suggest that the process involves an automatic increase without an application, in terms of Form 3, for a variation of a certificate of approval, it is incorrect. In any case, there was an application made by the applicant to the respondent for an approval. The application was for development approval.

87 Mr Allanson submitted that the proposed increase in the maximum number of patrons at the site does not constitute "development" as that term is defined in TPS 1. That term is defined, for the purposes of both the MRS and TPS 1, in s 2 of the TPD Act as follows:

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

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

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

88 In University of Western Australia v City of Subiaco (1980) 52 LGRA 360, Burt CJ held at 363 ­ 364 as follows:

"In my opinion the definition of 'development' in the Town Planning and Development Act makes use of and encompasses two ideas. The first is the 'use' of the land which 'comprises activities which are done in ... or on the land but do not interfere with the actual physical characteristics of the land' and the second being 'activities which result in some physical alteration to the land which has some degree of permanence to the land itself': see Parkes v Environment Secretary (1978) 1 WLR 1308 at 1311 per Lord Denning MR."

89 The critical question in the present case is whether the accommodation of an additional 200 patrons at the site comprises an activity which is a land "use" within the meaning of the definition of "development" in the TPD Act. If it does, then cl 32 of TPS 1 requires prior development approval in relation to such a "use".

90 Mulcahy v Blue Mountains City Council (1993) 81 LGRA 302 was an appeal to the New South Wales Court of Appeal from the decision of the Land and Environment Court that certain gates constituted "buildings", for which prior development approval and building approval was required to be obtained, and that, there being no such approval, the gates should be removed. Although, on the hearing of the appeal, counsel for the appellant indicated that the appeal against the finding that the gates were "buildings" was abandoned, and that the appeal was maintained only in relation to the exercise of the lower court's discretion to order the removal of the gates, Mahoney JA, who delivered the principal judgment, considered in some detail the proper approach to the determination of "what things or actions come within" the scope of planning legislation.

91 Section 4(1) of the Environmental Planning & Assessment Act 1979 (NSW) ("EP&A Act") (which regulated town planning) defined "development" to include "the erection of a building". At 305, his Honour noted that the relevant definition of "building" for the purposes of the EP&A Act and the Local Government Act 1919 (NSW) (which regulated building licensing), included "any structure or part thereof". His Honour continued, at 305 ­ 308, as follows:

"The definitions have traditionally caused difficulty and, I suspect, embarrassment to those whose rights depend on them or who must administer them. It has, for example, been suggested that the definitions must be given their literal meaning and that, applied in this case, it follows that: a building may not be erected or altered without approval of the authority; 'building' includes 'structure'; and accordingly a structure of any kind may not be erected or altered unless the council's approval has been formally sought and obtained. But if the definitions be so construed, extraordinary results would follow which, it may confidently be said, the legislature would not have intended, much less espoused.

It is in my opinion plain that the generality of the expressions used must be restricted if they are to perform the function which the legislature envisaged. The too literal construction of definitions of this kind would, in my opinion, be both unsatisfactory and wrong. ...

The better approach is, in my opinion, to determine what things or actions come within such terms by reference to the purposes which the provisions were enacted to achieve. This is, of course, a long recognised approach to the construction of statutes; more recently, in has been described as 'purposive'. ...

In principle, the purposive approach to construction of, for example, 'structure' or 'erect' would proceed in a manner such as the following. The court would determine the purposes which the legislature had sought to achieve by prescribing that no structure may be erected without council approval. I shall assume, by oversimplification, that that purpose was the safety and stability of the structure. The court would then adopt from among the possible meanings of 'structure' and 'erect' that meaning which would give effect to that purpose. ... "

92 A "purposive" approach to the determination of whether development approval was required in relation to a particular activity has been followed in the Land and Environment Court. In Conomos v Chryssochoides [1997] NSWLEC 163; (1997) 97 LGERA 113, two houses were built approximately one metre from a common boundary. The applicants complained of detriment to their amenity by the construction of water and sewerage pipes on the external wall of the neighbouring house. The applicants claimed a declaration that, in constructing the pipes, the respondent had carried out "development", in breach of s 76(2) of the EP&A Act, and an activity for which prior building approval was required, in breach of s 68 of the Local Government Act 1993 (NSW). The definitions of "development" and "activity" for the purposes of these provisions included "the erection of a building" and "building" included "a structure or part of a structure". Sheahan J held at 120 ­ 121 as follows:

"In this case I rely on the objects of the Acts in question and agree that they include conferring power on local councils over the general amenity of the neighbourhood and environment in their locality.

Although the pipes are not physically large and may seem of little importance to the general environment, they are certainly not seen as trivial by those situated closest to them within their environment. ...

I accept that the pipes in this case constitute a structure or part of a structure, if on no other basis that their effect upon the amenity on the adjoining neighbour is unreasonable in all the circumstances.

The purposes of both Acts include conferring responsibility on a local council to regulate the general amenity of the neighbourhood, and a neighbourhood is after all made up of individual neighbours whose individual amenities cannot be trivialised.

I therefore find that the pipes are relevantly a "structure" and therefore a "building", and the question to decide now is whether the pipes were the subject of consent or approval."

93 Similarly, in my opinion, a purposive approach to the determination of whether a particular activity constitutes a "use" of land for the purposes of the definition of "development" in the TPD Act is appropriate. Although the TPD Act does not contain express objectives, the objectives it seeks to achieve can be discerned through the role and particular content of town planning schemes under the Act.

94 In this regard, s 6 of the TPD Act provides, in part, as follows:

"(1) A town planning scheme may be made, in accordance with the provisions of this Act, with respect to any land with the general object of improving and developing such land to the best possible advantage, and of securing suitable provision for traffic, transportation, disposition of shops, residence, factory and other areas, proper sanitary conditions and conveniences, parks, gardens and reserves, and of making suitable provision for the use of land for building or other purposes and for all or any of the purposes, provisions, powers or works contained in the First Schedule."

95 Paragraph 8 of the First Schedule to the TPD Act refers, among other things, to "prescribing other requirements so far as is reasonable for the purpose of securing the convenience and amenity of the scheme area". Clause 6 of TPS 1, which is headed "Objectives and Intentions", contains the following:

"(1) The Council has prepared this Scheme for the purpose of controlling and guiding development and growth in a responsible manner and which can initiate, accommodate and respond to change.

(2) The overall goal of this Scheme is to ensure that the Town of Vincent will be widely recognised as providing a high level of services and amenities in a friendly and accountable manner.

(3) The general objectives of this Scheme are -

(b) to protect and enhance the health, safety and general welfare of the Town's inhabitants and the social, physical and cultural environment; ...

(d) to promote the development of a sense of local community and recognise the right of the community to participate in the evolution of localities;"

96 It is apparent from these provisions that one of the underlying planning objectives of TPS 1 is to secure "the convenience and amenity of the scheme area" (to quote par 8 of the "First Schedule" to the TPD Act).

97 Under cross­examination, the applicant conceded that the changes which would occur in consequence of the additional 200 patrons proposed were "more staff" and "more parking". Plainly, 200 more people will consume more alcohol and eat more food. This will result in increased servicing of the site. More staff will be required and will need to get to and depart from the site. Although a proportion of the 200 additional patrons will arrive by bus or taxi, according to the traffic generation rates in the Parking Policy, they will also bring an additional 29 vehicles into the immediate locality of the site. For reasons discussed in relation to car parking below, the Tribunal is not satisfied that the applicant's Patron Parking Management Plan and evidence presented in these proceedings satisfactorily addresses the issue of where, within the commercial strip area, the additional vehicles are likely to be accommodated. For reasons also set out below, the Tribunal accepts the evidence and submission of Mr Bain that it is likely that at least some cars generated by the proposal will be parked in the surrounding residential area, taking up car parking spaces which would otherwise be available for residents and their visitors, and resulting in patrons having to enter the residential area, with the potential for noise impact and anti-social behaviour.

98 The Tribunal accepts the respondent's submission that "the proposed increase in patron numbers is an intensification of use, which has a direct impact on the preservation of the amenities of the locality, should the car parking not be provided" and that, accordingly, applying a purposive approach, it constitutes a "use" and thus "development" which requires prior development approval of the respondent. It is within the clear scope and purpose of the MRS and TPS 1 to regulate, through the need for planning application and assessment, the significant increase in the number of patrons proposed in the application.

99 Moreover, as noted earlier in these reasons, the 1999 DA was approved, subject to a condition that the "current approved accommodation numbers in accordance with the Health (Public Building) Regulations 1992 and the Health Act 1911 (as amended) shall not be increased". It is common ground that "the current approved accommodation numbers" in accordance with the health legislation as it existed at the date of development approval restricted the maximum number of patrons at the site to 400. It is also common ground that this condition was imposed following correspondence from the proponent's architect advising, in the applicant's words, "that the hotel would abandon the decking component of the 1999 application and would not seek to increase its patron accommodation numbers (determined on a one person per square metre floor area basis) which would therefore remain at the then current/approved 400 persons figure".

100 Clause 53(1)(c) of TPS 1 relevantly provides that "a person shall not ...use ...any land or building ... unless all conditions imposed upon the grant or issue of any approval, consent or license required by this Scheme or any other law have been and continue to be complied with". Further development approval is, therefore, required in order to avoid a breach of cl 53 of TPS 1: cf ABC Developmental Learning Centres Pty Ltd v City of Canning [2004] WATPAT 232 at [56].

101 Finally, I reject the applicant's submission, put in his written submissions in reply, that "if the existence of [condition (ix) imposed on the grant of the 1999 DA] does require development approval in this case, the terms of the condition must now be viewed in light of the amendment to the regulations". On its proper construction, the condition does not have an ambulatory operation. The words "the current approved accommodation numbers" was clearly a reference to the maximum number of 400 patrons. Moreover, it appears from the applicant's evidence that the condition was imposed in order to ensure that the approval of the 1999 DA would not result in an increased shortfall in on-site car parking provision over and above the historical shortfall.

102 In Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266, the Town Planning Appeal Tribunal stated at [47] that "in ordinary circumstances, the Tribunal should not embark upon a review of the approval when it is a condition that is the subject of appeal". In Kaard v City of Nedlands [2005] WASAT 2, the Tribunal determined at [27] that, although Koltasz Smith (supra) was a subdivision appeal, similar considerations arise in the context of an application for review brought under s 8A of the TPD Act.

103 However, these are not "ordinary circumstances", for the following four reasons. First, the respondent, in effect, refused the applicant's development application for consent to increase the maximum number of patrons by 200, and instead granted approval to a different application, namely an increase in the number of patrons by 70.

104 Second, there does not appear to have been any specific analysis before the respondent to indicate the impacts of 70 additional patrons and whether such impacts would be acceptable. When I inquired of Mr Bain as to how the respondent had determined the figure of "70", he indicated that, although he had asked, he had not been told.

105 Third, neither party presented any evidence or specific submission as to why condition (a) should be imposed. In particular, the respondent presented no evidence in support of condition (a). Rather, its evidence and submission was to the effect that the applicant's application for a 200 patron increase should not be allowed.

106 Finally, although the respondent may have considered that a 70 patron increase was acceptable, because the additional parking shortfall created by 70 patrons, namely 10.08 car bays, could be adequately provided by a cash-in-lieu payment, which it required by condition (g), for reasons set out below, the Tribunal is not satisfied, on the evidence, that such a condition should be imposed under the Parking Policy in the present case. In this regard, in Robert Clark v Pittwater Council (Brown C, LEC 10527 of 1998, 20 December 1999, unrep.), the Land and Environment Court refused to grant development approval for alterations and additions to a commercial building in circumstances where an applicant had only appealed against a condition of approval which required a cash­in­lieu contribution for three car parking spaces. At [28], the Court found that the level of contribution sought by the condition was unreasonable, and that the evidence did not permit a reasonable level of contribution to be determined. At [29] ­ [30], the Court determined as follows:

"While the Council may seek to provide additional facilities through s 94 contribution, this is not a mandatory course of action. Ultimately the responsibility for achieving a development that complies with the relevant planning controls must rest with the applicant.

In this case a deficiency of 3 car parking spaces cannot be met on site or provided through a s 94 contribution, so the application must fail for this reason."

The enabling Act under which the appeal was brought in Robert Clark v Pittwater Council (supra), namely s 97 of the EP&A Act, was in similar terms to the enabling Acts under which the present application for review was brought, namely cl 33 of the MRS and s 8A of the TPD Act.

107 Accordingly, having read the evidence, I indicated to the representatives of the parties, prior to their address, that, unusually, this was a case in which it was appropriate for the Tribunal to consider whether development approval should be granted at all, not simply whether the two conditions in dispute, namely conditions (a) and (g), should be imposed upon the grant of development approval. I requested that the parties address the Tribunal on this basis.

108 In his opening, Mr Bain had indicated that, on the respondent's case, there were two determinative issues in these proceedings, namely:

1. Car parking provision shortfall and the impacts of such shortfall on the surrounding residential area.

2. Impacts of the proposed development on residential amenity in the surrounding residential area.

109 However, Mr Bain explained that the two issues were related, because the principal amenity impacts consequent upon the development were the impact of patrons parking in the surrounding residential area and accessing their vehicles.

110 It was the respondent's case that the proposed significant increase in the number of patrons was likely to give rise to an increase in the number of cars attracted to the site and the locality, and that the application failed to satisfactorily address the critical question of where these additional vehicles are likely to park. It was Mr Bain's evidence and submission that the issue of car parking in this case should have been dealt with through a competent parking survey.

111 In his written evidence, Mr Bain stated as follows:

"An increase in the patronage number to 600, as proposed by the Applicant, would result in a significant increase in the shortfall of car parking bays provided by the Paddington Ale House.

...

The deficiency in car parking on-site means that the cars are parked in the surrounding residential area taking up resident and visitor car parking spaces. The use of the surrounding streets for car parking at night results in patrons having to enter the residential area. There is the potential for noise impacts and anti-social behaviour in these areas. Where this is at night­time the impacts are more acute due to the quiet of the area. Residents of the surrounding area would have an expectation that the area not have patrons from the hotel entering their area."

112 A number of the residents' objections noted that, at present, patrons of the Paddington Alehouse park in the residential streets and, from time to time, cause a disturbance. One objector stated that:

"I live at 32 Flinders Street and have had two pickets ripped off my back fence by people leaving the pub, my car aerial broken, bottles and furniture thrown in my front yard, constant noise on Friday and Saturday nights from drunken men (usually) leaving the pub. Parking in Flinders Street gets more difficult each weekend from people at the pub."

113 In his oral evidence, Mr Bain stated that he had observed parking associated with the hotel in surrounding residential streets.

114 The applicant's case in relation to car parking was based, in large part, on a "Patron Parking Management Plan" ("Parking Plan") which was apparently submitted to the respondent in November 2004. The Parking Plan was divided into four sections, namely General Policy, Security, Bus Strategies and Taxi Strategies. The General Policy states as follows:

"All patrons are encouraged to park in the following places:

Council car park, SB road 100 bays

TAB 30

Mount Hawthorn SC 200

Oxford Street car park 50

Council car park Coogee Street 50

That is a total of 430 bays available to our customers."

115 In the Security section, the Parking Plan states that all "car parks are patrolled by security employed by the Paddington Alehouse". In the Bus Strategies section, the Parking Plan refers to the growth in popularity of bus trips to licensed premises, and states that the Paddington Alehouse has a good working relationship with professional bus companies. In his oral evidence, the applicant stated that "probably 50 per cent [of patrons] come by bus". In the Taxi Strategies section, the Parking Plan states that "the Paddington Alehouse is one of the most popular taxi destination in WA and gets between 200 to 400 every Friday or Saturday night". This is consistent with a statement by the Chief Executive Officer of the Taxi Council of Western Australia in a letter to the manager of the Paddington Alehouse dated 15 June 2004, which was submitted to the respondent.

116 It is apparent, in light of the agreed position as to the number and capacity of the existing car parks in the locality in Exhibit 8, that the number of car parking spaces referred to in the Parking Plan as available to customers of the Paddington Alehouse is inaccurate in material respects. There are only 66 car bays on-street in the commercial strip and in the two Council car parks in the immediate vicinity of the site, not 100. Although there are public car parks in Coogee Street and Oxford Street, these car parks have a total number of 83 bays, not 100. Moreover, these car parks are located some 250 metres away from the site, not within a short walking distance. Common experience indicates that, if an on-street car parking space were available in Flinders Street or Fairfield Street, a person proposing to go to the site would prefer to park in either of those (residential) streets and walk a considerably lesser distance than if he or she parked at the Coogee Street or Oxford Street car parks.

117 More fundamentally, however, the applicant's case on the critical issue of patron parking was flawed in three respects.

118 First, given that the DA proposed a significant increase in the number of patrons, but no increase in the number of on­site car parking spaces, the critical omission from the applicant, as Mr Bain submitted, was that of a properly undertaken car parking survey of the immediate locality. Such a survey would have shown the number of off-site car parking spaces which could be used to accommodate the 29 additional vehicles which, according to the Parking Policy, an additional 200 patrons at the site are likely to generate. As Mr Rowe, a town planner called by the applicant, conceded in cross­examination, a car parking survey, in support of an application such as that made by the applicant, is "common", although "not mandatory".

119 The Tribunal considers that a car parking survey would have been essential in this case, because the applicant proposed no additional on­site parking to cater for the additional proposed patrons, and because of the historical shortfall in on­site car parking provision for the hotel. As noted earlier in these reasons, according to the traffic generation rate in the Parking Policy, the present use of the site, based on the number of patrons and the number of bedrooms, generates a need for 73 on­site car parking bays (after allowing the relevant adjustment factors), whereas only 13 on­site bays are provided. In consequence, the present use of the premises results in the occupation of up to 60 off­site car bays in the vicinity of the site. This is an historical shortfall, which pre-dated the 1999 development approval. As also noted earlier, there are some existing uses in the locality which trade after normal business hours, including a few cafes and restaurants and the TAB Agency. Although Mr Rowe stated in oral evidence that he had been to the premises during both days and evenings, including Friday evenings, and had seen "a lot" of availability in car parks, and some on-street availability, I have little hesitation in accepting Mr Bain's submission that such generalised evidence could not possibly compensate for the absence of a properly prepared parking survey.

120 Second, the Parking Plan assumed that it was acceptable for traffic generated by the proposed development to occupy any available car parking spaces in public car parks in the vicinity. This assumption is inconsistent with proper and orderly planning in general, and the planning principles reflected in the respondent's adopted policy framework in particular. The Parking Policy states explicitly that "on-site parking is to be provided at a rate that adequately meets the demand generated by a particular use or activity". It also confirms that "the Council may, in the pursuit of orderly and proper planning and the preservation of the amenities of the locality, refuse a proposed development where inadequate on-site parking had been provided". The Centre Policy also states that "adequate car parking is to be provided on­site to ensure that unreasonable commercial parking does not spill into adjacent residential streets".

121 Although, in the exercise of planning discretion, some limited use by private development of existing public car parking spaces might be acceptable, it is fundamentally inconsistent with orderly and proper planning for a private development, which is incapable of meeting its car parking impacts on-site, to monopolise presently available public car park spaces. Such an approach would undermine the potential for orderly development of other sites in the commercial strip which might, like the site, be incapable of providing adequate on-site car parking.

122 Third, the Parking Plan also relies on the availability of car parking for patrons of the proposed development in two private car parks, namely the TAB car park and the Mount Hawthorn Shopping Centre car park. Although there is a small private car park at the rear of TAB premises, which it shares with other premises, the applicant produced no evidence of any proprietary or contractual right for patrons of the site to park in that car park. A letter from Racing and Wagering Western Australia indicated that "the 30 bays of public parking adjacent to the TAB Agency in Hobart Street are not in great demand from TAB customers on Friday and Saturday evenings". However, it is apparent that this letter referred to the 30 bay road reserve car park in Hobart Street, which has already been taken into account as a public car park. The applicant gave evidence that he has had an informal arrangement with the owners of the Mount Hawthorn Shopping Centre since about 1989 under which patrons of the Paddington Alehouse are permitted to park in the partially underground or rear car parks of those premises. In a letter dated 22 July 2004 to the applicant, Mr Tony Davis of the Hawaiian Management Group, which I assume is the owner or manager of the Mount Hawthorn Shopping Centre, stated as follows:

"1. We are in the preliminary stages of planning for the redevelopment of the centre and as part of our business we are aware of the Council's position to rationalise the parking for the business district and in particular for after hours patrons.

2. Once the redevelopment is completed we would envisage being in a position to enter into a more formal arrangement with you regarding your patrons use of our parking area.

3. Until the redevelopment commences we are happy for your customers to use our parking area on the same terms that currently apply, ie the area cleanliness is maintained, secured and used only for parking.

4. We will provide you with notification of when this arrangement must cease so that the redevelopment works can commence". (Reproduced as written.)

123 It appears that the arrangement with Hawaiian Management Group is terminable at will by Hawaiian Management Group and that it will be terminated in the foreseeable future to enable the redevelopment of the shopping centre site to take place. Even if the applicant had demonstrated, by an appropriate car parking survey, that there was capacity during the hours of operation of the hotel to cater for an additional 29 vehicles in the shopping centre, the arrangement as it presently stands with the shopping centre does not have a sufficient degree of permanence for the Tribunal to be able to properly approve the development application based on the availability of that parking. The Tribunal does not consider that condition (f) imposed by the respondent, which required that "the hotel management submit a revised Parking Management Plan should access to the Mount Hawthorn Plaza Shopping Centre car park become unavailable", is a satisfactory response to the likely termination of the arrangement. This is because, on the evidence, there does not appear to be any other available private car park in the immediate vicinity in relation to which the applicant could acquire a similar proprietary or contractual right.

124 Moreover, given that the shopping centre car park is across the road from the hotel and that accessing it by car requires turning off Scarborough Beach Road into Flinders Street approximately 80 metres after passing the hotel (when travelling from the east) or turning left into Flinders Street approximately 80 metres before the hotel or into Fairfield Street just after the hotel (when travelling from the west), it would also have been necessary for the applicant to demonstrate that it had a practical plan, which could be incorporated into a condition of approval, to make it likely that the proposed additional patrons would actually utilise the parking in the car park on the other side of Scarborough Beach Road, rather than taking the potentially easier option of using an on­street space in a residential street on the same side of Scarborough Beach Road as the hotel. Had the applicant been able to demonstrate:

(ii) that there was available capacity in the shopping centre car park for the proposed additional patrons; and

(iii) that that arrangement was not likely to be terminated to facilitate redevelopment or for any other reason,

the grant of a development consent limited in time to the period during which the proprietary or contractual arrangement remained in existence, would have been appropriate.

125 Mr Allanson submitted that, if the application before the Tribunal was a development application, it was for a development in relation to a hotel on Scarborough Beach Road in an area which is exclusively commercial. He relied on the evidence of Mr Rowe that "the amenity of the area is defined in part by the use of the Appeal Site as a Hotel" and that there "should be a reasonable expectation of residents living in the area surrounding the Appeal Site that their amenity includes the use of the Appeal Site as a Hotel". Mr Allanson also relied on the evidence of Mr Rowe that "the existence of the District Centre is an important factor that defines the character of the area surrounding the Appeal Site" and that there "should be a reasonable expectation of residents living in the area adjacent to the District Centre that their amenity is defined by the factors which are characteristic of the District Centre". Mr Allanson's ultimate submission was that, looking at the hotel in the commercial context in which it exists, it is "entirely speculative" to say that an increase in the number of people at the site will adversely affect the amenity of residents in the locality.

126 I accept Mr Rowe's evidence that the historical and current use of the site as a hotel is an important factor which defines the character, and therefore amenity, of the surrounding area. Similarly, the existence of the District Centre is an important factor which defines the character, and therefore amenity, of the surrounding area. However, as Mr Bain submitted, the historical fact of the pub and the existence of the District Centre does not mean that residents in surrounding streets would reasonably expect that already scarce on-street car parking would be further taken up by proposed additional patrons at the premises or indeed by patrons at any other proposed land use within the District Centre. Indeed, the Centre Policy which would, to some extent, guide the reasonable expectations of the surrounding residential community, states that "adequate car parking is to be provided on-site to ensure that unreasonable commercial parking does not spill into adjacent residential streets".

127 In light of:

(i) the historical shortfall of some 60 spaces in relation to the site;

(ii) the evidence of Mr Bain and the residents' objections that patrons of the Paddington Alehouse do presently occupy on-street parking spaces in the residential area;

(iii) the existence of other businesses in the vicinity which operate outside normal business hours; and

(iv) the fact that, on the traffic generation rate in the Parking Policy, an additional 200 patrons will generate an additional 29 vehicles,

it is hardly "speculative" to conclude that the significant increase in the number of patrons proposed in this application is likely to adversely affect the amenity of residents in the surrounding area by virtue of car parking by patrons in that area.

128 As noted earlier in these reasons, the Parking Policy states that "cash-in-lieu provisions are only to be permitted in localities where the Town already provides off-street public car parking which has spare capacity, or the Town is proposing to provide or is able to provide a public car park (including enhanced or additional on-street car parking where appropriate) in the near future, within 400 metres of the subject development". There is no satisfactory evidence before the Tribunal that off street public car parking in the vicinity of the site has "spare capacity". There is also no evidence that "the Town is proposing to provide or is able to provide a public car park ...in the near future". In the absence of such evidence, and in light of the terms of the Parking Policy, it is not appropriate to impose condition (g).

129 Similarly, it would not be appropriate to impose such a condition in lieu of the provision of the number of car parking spaces generated by the proposed development. Furthermore, the Parking Policy states that, if the total requirement (after adjustment factors) is between 11 and 40 bays, a minimum of 15 per cent of the required bays is to be provided on-site. This is a further reason why development approval should not be granted in the present case subject to a condition that all of the car parking spaces necessitated by the proposed development be paid for by cash-in-lieu.

130 According to the evidence of Mr Bain, since 20 December 2003, two complaints have been lodged with the respondent in relation to the operation of the premises, one in relation to noise/anti-social behaviour outside the premises and one in relation to car parking. Mr Bain also stated that the licensee had received approximately six complaints during this period. According to the applicant's evidence, some 18 complaints have been made to the Department of Racing, Gaming and Liquor in relation to the Paddington Alehouse, of which 15 have been resolved by conciliation. The applicant stated in evidence as follows:

"I'm very conscious of the importance of conducting the business with sensitivity to the neighbouring residents. As a result, we ensure that the behaviour of the patrons when leaving the premises is monitored by our security personnel until one hour after trading ceases. This [is] not a requirement imposed by the Licensing Authority but is one which management of the Paddington Alehouse is happy to provide.

In addition to patrols by licensed crowd controllers, the hotel has a closed circuit TV surveillance system with 18 cameras strategically placed inside and outside the hotel so that any anti-social behaviour can be quickly identified and dealt with.

The hotel regularly distributes a hotline telephone number for the hotel on a flyer which is delivered to all residences within a 200m radius of the hotel. The flyer invites residents to telephone the number if they have any complaints regarding the hotels [sic] or its patrons."

131 The Tribunal accepts this evidence. Although there is some evidence of complaints about the present operation of the hotel, had the question of car parking generated by the proposed development been satisfactorily addressed, the Tribunal would not have refused the development application on the basis of impact on residential amenity. Indeed, if the hotel were able to provide adequate on­site or proximate car parking within the commercial area, it is likely that there would be minimal adverse impact on residential amenity in consequence of the proposal. The management plans, which the respondent's redrafted condition (b) required compliance with, appear to be reasonable and appropriate.

132 However, the Tribunal does not accept the evidence of Mr Rowe that "matters such as anti-social behaviour and acts of an illegal nature by persons previously in attendance at the Appeal Site are [not] relevant planning considerations". As the Land and Environment Court has recognised in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 and in Vinson v Randwick Council [2005] NSWLEC 142, the adverse impact on residential amenity of existing trading by licensed premises is certainly a relevant factor for consideration in assessing an application for an extension or intensification of such a use by an increase in the maximum number of patrons or hours of operation. In Randall Pty Ltd v Leichhardt Council (supra), Tuor C stated at [25] ­ [26] as follows:

"Principles for the assessment for an extension or intensification of a use which may have an adverse impact on residential amenity, such as a hotel, are:

First, is the impact of the operation of the existing use on residential amenity acceptable?

If the answer is no, then an extension or intensification would be unacceptable unless there is no overall increase in impact or there are measures proposed which would mitigate the existing impact.

Second, if the answer is yes, is the impact of the proposed extension or intensification still acceptable?

In answering the first question, it is not sufficient to assume that a use operating in compliance with its approval has an acceptable impact."

133 The application which was made to the respondent, and which it sought to consider and determine, was an application for development approval under the MRS and TPS 1. It was not an "application" for "ascertainment" of the maximum number of persons that may be accommodated under reg 7 of the Health Regulations or an application for the variation of a certificate of approval under reg 9 of the Health Regulations.

134 The proposal, the subject of the development application before the Tribunal, is for a 50 per cent increase in the maximum number of patrons to 600. Applying a purposive interpretation of the planning instrument in the present context, the Tribunal has determined that the proposal constitutes a "use" and, therefore, "development", within the meaning of those terms in the TPD Act. Moreover, given that a subsisting development approval restricts, by condition, the maximum number of patrons at the premises to 400, development approval is required in order to expand the number of patrons to 600.

135 The fundamental issue in relation to the merits of the proposed development is the lack of any on-site car parking to cater for the traffic likely to be generated by the approval of the proposed development. Given, in particular, that the current use of the site generates a need for up to 60 car parking spaces which are not able to be accommodated on-site and that there is evidence that patrons attending the site do park in the residential area which is a short distance to the south, it is likely that the development will give rise to adverse amenity impacts in consequence of the taking up of on-street parking spaces which are not presently subject to resident-only restrictions, noise and disturbance.

136 Approval of the application would, therefore, be contrary to the orderly and proper planning of the locality and the conservation of the amenities of the locality (TPS 1 cl 38(5)(g) and cl 38(5)(h)). It would also be contrary to the respondent's policy framework, which seeks to reconcile commercial use of the properties fronting Scarborough Beach Road and Oxford Street with the maintenance of residential amenity in the residential precincts behind, by, among other things, requiring developments in the commercial area to provide adequate car parking on-site.

137 The critical absence from the applicant's case was a proper parking survey demonstrating the actual availability of car parking in the immediate vicinity. The applicant's case was also based on a flawed premise in relation to parking, namely that patrons of the proposed private development were entitled to utilise existing, available pubic parking spaces to any extent necessary. In the exercise of planning discretion, some limited use by private development of public car parking spaces may be acceptable. However, it is contrary to orderly and proper planning of a locality to permit a private development, at least without payment of cash-in-lieu where that is otherwise available and appropriate, to monopolise existing available public car parking spaces. Insofar as the applicant relied on the availability of private car parking in the Mount Hawthorn Shopping Centre, the informal arrangement which he has with the owners of those premises does not have a sufficient degree of permanence, given the likely redevelopment of that site, to permit the approval of the application on the basis of the availability of that car parking.

138 Although, in commencing these proceedings, the applicant sought only to challenge the imposition of two conditions of approval, which restricted the number of additional patrons to 70 and which required the applicant to pay a cash-in-lieu contribution for car parking generated by 70 patrons, it is appropriate, in the unusual circumstances of this case, for the Tribunal to determine whether development approval should be granted at all. This is because the respondent, in effect, refused the DA for a 200 patron increase, neither party brought any evidence to support the 70 patron increase selected by the respondent, there does not appear to have been any specific analysis before the respondent to indicate that such an increase in numbers would give rise to acceptable impacts, and the Tribunal has determined that a cash-in-lieu payment is not appropriate under the respondent's Parking Policy.

139 The Tribunal has concluded that, on the evidence, development approval should be refused, because of the likely impacts of additional car parking on the surrounding residential area and the applicant's inadequate response to this critical issue**.**

140 The orders of the Tribunal are:

1. The application for review of the determination by the respondent of a development application to commence development of accommodating an additional 200 patrons at the Paddington Alehouse, 141 Scarborough Beach Road, Mount Hawthorn is dismissed.

2. Development approval to commence development of accommodating an additional 200 patrons at the Paddington Alehouse, 141 Scarborough Beach Road, Mount Hawthorn is refused.

I certify that this and the preceding 55 pages comprise the reasons for decision of the Tribunal.

__________________________

D R Parry, Senior Member