Randall and Town of Vincent [2005] WASAT 129 (8 June 2005)

Randall and Town of Vincent [2005] WASAT 129 (8 June 2005) - WASAT 2005 case summary — Zoe

[60]

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.

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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:

[124]

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:

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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":

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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:

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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.

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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:

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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:

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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:

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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:

[224]

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:

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (227 paragraphs)

Randall and Town of Vincent [2005] WASAT 129 (8 June 2005)

Legislation Cited (11)

Cases Cited (6)