Version: 2 Page 1 Metro East Joint Development Assessment Panel Agenda Meeting Date and Time: 6 March 2019, 10:00am Meeting Number: MEJDAP/190 Meeting Venue: Department of Planning, Lands and Heritage 140 William Street Perth Attendance DAP Members Mr Ian Birch (Presiding Member) Ms Kym Petani (Deputy Presiding Member) Mr Peter McNab (Specialist Member) Cr Michelle Rich (Local Government Member, Shire of Serpentine Jarrahdale) Cr Keira McConkey (Local Government Member, Shire of Serpentine Jarrahdale) Officers in attendance Ms Heather Coles-Bayes (Shire of Serpentine Jarrahdale) Mr Ashwin Nair (Shire of Serpentine Jarrahdale) Mr Andre Schonfeldt (Shire of Serpentine Jarrahdale) Minute Secretary Ms Michelle Tan (DAP Secretariat) Applicants and Submitters Mr George Hajigabriel (Rowe Group) Ms Linda Rowley (Rowley Legal) Members of the Public / Media Nil 1. Declaration of Opening The Presiding Member declares the meeting open and acknowledges the past and present traditional owners and custodians of the land on which the meeting is being held. 2. Apologies Nil 3. Members on Leave of Absence Nil
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Version: 2 Page 1
Metro East Joint Development Assessment Panel
Agenda
Meeting Date and Time: 6 March 2019, 10:00am Meeting Number: MEJDAP/190 Meeting Venue: Department of Planning, Lands and Heritage
140 William Street Perth
Attendance
DAP Members Mr Ian Birch (Presiding Member) Ms Kym Petani (Deputy Presiding Member) Mr Peter McNab (Specialist Member) Cr Michelle Rich (Local Government Member, Shire of Serpentine Jarrahdale) Cr Keira McConkey (Local Government Member, Shire of Serpentine Jarrahdale) Officers in attendance Ms Heather Coles-Bayes (Shire of Serpentine Jarrahdale) Mr Ashwin Nair (Shire of Serpentine Jarrahdale) Mr Andre Schonfeldt (Shire of Serpentine Jarrahdale) Minute Secretary Ms Michelle Tan (DAP Secretariat) Applicants and Submitters Mr George Hajigabriel (Rowe Group) Ms Linda Rowley (Rowley Legal) Members of the Public / Media Nil 1. Declaration of Opening
The Presiding Member declares the meeting open and acknowledges the past and present traditional owners and custodians of the land on which the meeting is being held.
2. Apologies
Nil
3. Members on Leave of Absence Nil
Version: 2 Page 2
4. Noting of Minutes
Signed minutes of previous meetings are available on the DAP website.
5. Declarations of Due Consideration Any member who is not familiar with the substance of any report or other information provided for consideration at the DAP meeting must declare that fact before the meeting considers the matter.
6. Disclosure of Interests
Nil
7. Deputations and Presentations
7.1 Mr George Hajigabriel (Rowe Group) presenting in support of the application at item 9.1. The presentation will seek the deletion of Condition 'r' relating to Public Art and deletion/clarification of the proposed amendment to Condition 'a'.
7.2 Ms Linda Rowley (Rowley Legal) presenting in support of the application at
item 9.1. The presentation will outline why there is no planning rationale for the inclusion of condition "r" in the approval of the redevelopment of the subject land which obliges the proponent to make a monetary contribution towards public art.
The Shire of Serpentine Jarrahdale may be provided with the opportunity to respond to questions of the panel, as invited by the Presiding Member.
8. Form 1 – Responsible Authority Reports – DAP Applications
Nil
9. Form 2 – Responsible Authority Reports – Amending or cancelling DAP
development approval 9.1 Property Location: Lot 196, 1526 Thomas Road, Oakford Development Description: Amendment and Deletion of Conditions in
relation to Approval for the Redevelopment of Oakford Traders Liquor Store, Convenience Store, Convenience Store and Fuel Station
Proposed Amendment: Deletion of Condition r in relation to the requirement for contribution towards public art and amendment to condition s to allow for the existing buildings on site to be retained
Applicant: Rowe Group – G Hajigabriel Owner: Humich Nominees Pty Ltd and Far Super Pty
Stage 1 of a Commercial Precinct including Fast Food Outlet, Convenience Store, Recreation - Private, Restaurant and Shops
City of Swan
Lot 100 (3301) West Swan Road, Caversham
Proposed Roadhouse, Restaurant/Tavern and Tourist Facilities (short stay accommodation)
City of Kalamunda
Lot 7 (24) Valencia Road, Carmel
Expansion of Valencia Nursing Home with Additional Beds and Associated Facilities
City of Kalamunda
Lot 42 (116) Union Road, Carmel
Demolition of Existing Dwelling and Ancillary Structures, Construction of (Tourism Development) including Short Term Accommodation Micro-distillery (Gin Brewery), Restaurant, Apiculture and Single Dwelling
11. General Business / Meeting Closure
In accordance with Section 7.3 of the DAP Standing Orders 2017 only the Presiding Member may publicly comment on the operations or determinations of a DAP and other DAP members should not be approached to make comment.
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Form 2 – Responsible Authority Report (Regulation 17)
Property Location: Lot 196, 1526 Thomas Road, Oakford
Development Description: Amendment and Deletion of Conditions in relation to Approval for the Redevelopment of Oakford Traders Liquor Store, Convenience Store and Fuel Station
Proposed Amendments: Deletion of Condition r in relation to the requirement for contribution towards public art and amendment to condition s to allow for the existing buildings on site to be retained
DAP Name: Metro East Joint Development Assessment Panel
Applicant: Rowe Group – G Hajigabriel
Owner: Humich Nominees Pty Ltd and Far Super Pty Ltd
Value of Amendment: Not Applicable
LG Reference: PA18/1015
Responsible Authority: Shire of Serpentine Jarrahdale
Authorising Officer: Ashwin Nair – Manager Statutory Planning and Compliance Andre Schonfeldt – Director Development Services
DAP File No: DP/13/00615
Report Date: 2 January 2019
Application Received Date: 22 November 2018
Application Process Days: 60 Days
Attachment(s): 1. Application Details and Previous Determination 2. Technical Assessment 3. Minutes of Ordinary Council Meeting
Officer Recommendation: That the Metro East JDAP resolves to: 1. Accept that the DAP Application reference DP/13/00615 as detailed on the
DAP Form 2 dated 22 November 2018 is appropriate for consideration in accordance with regulation 17 of the Planning and Development (Development Assessment Panels) Regulations 2011;
2. Approve the amendment of condition s and Refuse the deletion of condition r,
in accordance with Clause 68 of Schedule 2 (Deemed Provisions) of the Planning and Development (Local Planning Schemes) Regulations 2015 and the provisions of the Shire of Serpentine Jarrahdale’s Town Planning Scheme No. 2 in relation to DAP Application reference DP/13/00615 as detailed on the DAP Form 2 dated 22 November 2018 for the approved ‘Service Station’ at Lot 196, 1526 Thomas Road, Oakford, subject to the following:-
Amended Conditions 1. To amend Condition a by removing the words “as amended” to read as follows:
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The development is to be carried out in compliance with the plans and documentation listed below and endorsed with the Shire of Serpentine Jarrahdale stamp, except where amended by other conditions of this consent.
Plans and Specifications
P1-P5 received at the Shire’s Offices on the 10 September 2018
2. To amend Condition r by replacing reference to “a contribution of 1% of
construction costs” with “an agreed monetary contribution” to read as follows: Prior to operation, an agreed monetary contribution shall be paid to Council for the establishment of public art in accordance with Council's Local Planning Policy 1.6 - Public Art, to the satisfaction of the Shire of Serpentine Jarrahdale.
3. To amend Condition s to read as follows:
Upon commencement of operation of the development hereby approved, the land use of the existing liquor store and convenience store shall cease and all signage removed. The existing crossovers shall be removed and the verge reinstated to the satisfaction of the Shire of Serpentine Jarrahdale and Main Roads Western Australia.
Amended Advice Notes 1. To amend Advice Note (a) by replacing reference to “Condition k” with
“Condition j”. All other conditions and requirements detailed on the previous approval dated 6 November 2018 shall remain unless altered by this application. Reasons for Refusal (a) The deletion of Condition r is contrary to Local Planning Policy 1.6 – Public Art.
(b) The deletion of Condition r would result in an adverse impact on the visual
amenity and rural character of the area, contrary to the Shire of Serpentine Jarrahdale Rural Strategy Review 2013.
Details:
Insert Zoning MRS: ‘Rural’
TPS2: ‘Rural’
Insert Use Class: ‘Service Station’, ‘Convenience Store’ and Liquor Store (Use Not Listed)
Insert Development Scheme: Shire of Serpentine Jarrahdale Town Planning Scheme No.2
Insert Lot Size: 62.15ha
Insert Existing Land Use: ‘Convenience Store’ and ‘Liquor Store (Use Not Listed)’
The application seeks approval for amendments to an existing development approval for the redevelopment of Oakford Traders Liquor Store, Convenience Store and Fuel
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Station. The proposal seeks to delete condition r of the approval in relation to the requirement for a public art contribution and to amend condition s to allow for the existing commercial buildings on the site to be retained. The application details are contained within Attachment 1. Background:
On 4 November 2013, the Metro East JDAP approved a development application for the redevelopment of the Oakford Traders Liquor Store, Convenience Store and Service Station. The approval had 29 conditions including the preparation of a number of technical reports. In 2015, an application was submitted to the Shire and approved by the JDAP to extend the timeframe for commencement of the approval for a period of two years. A further proposal was submitted to the Shire and determined by the JDAP to extend this timeframe by another two years. This application was approved on 9 January 2018. Subsequently, on 6 November 2018 the JDAP approved a further development application modifying the site layout and allowing the proposed ‘Service Station’ and ‘Convenience Store’ to operate 24 hours a day, seven days a week. This approval contains several conditions to which the current application relates. The current application was submitted to the Shire on 22 November 2018 as a Development Assessment Panel (DAP) application. The Joint Development Assessment Panel (JDAP) will replace Council as the decision making authority for the application in accordance with the Planning and Development (Development Assessment Panels) Regulations 2011. The proposal is presented to Council as Officers do not have delegated authority to provide a recommendation to the JDAP.
Subject site
The subject site is located to the east of Nicholson Road at its intersection with Thomas Road. Thomas Road, to the north, is classified as a Primary Regional Road under the Metropolitan Region Scheme (MRS). Nicholson Road is identified as an Other Regional Road under the MRS. In addition to a residential property located to the south west of the site, the land contains an existing business enterprise, Oakford Traders which currently comprises of a convenience store and liquor store. Once the current approval commences operating, these remnant buildings are required to be demolished, enforced by way of a planning condition. The property is surrounded largely by rural paddocks.
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Aerial Photograph
Legislation and Policy:
Legislation
Planning and Development Act 2005;
Planning and Development (Development Assessment Panels) Regulations 2011 (Deemed Provisions)
Planning and Development (Local Planning Schemes) Regulations 2015
Metropolitan Region Scheme
Shire of Serpentine-Jarrahdale Town Planning Scheme No. 2 State Government Policies
State Planning Policy 2.5 Rural Planning (SPP2.5) Local Policies
Shire of Serpentine Jarrahdale Rural Strategy Review 2013
Local Planning Policy - Public Art (LPP1.6) Consultation:
The subject application has not been advertised. The subject application is made under Clause 17A of the Planning and Development (Development Assessment Panels) Regulations 2011 (DAP Regulations). Clause 17A (1) states:-
“……the provisions of the Act, the Planning and Development (Local Planning Schemes) Regulations 2015, the Planning and Development Regulations 2009 and the relevant planning instrument apply to the
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making and determination of, and the review of a decision on, an application as if the development approval – (a) Had not been granted pursuant to a DAP application; and
(b) Had been granted by the responsible authority”.
As such, Clause 77 of the Deemed Provisions, which form part of the Shire’s Town Planning Scheme, applies to the subject application. This clause relates to applications that seek approval to amend existing approval. Clause 77 allows for a Local Government to waive any of the requirements in Part 8 (the procedure for determining a new development application), such as advertising. In this case, it is considered that the deletion and amendment of the conditions would not fundamentally alter the approved development and therefore this element of the process was waived. In addition, there were no submission made as part of the referral process for the approved development application. Planning Assessment:
Planning and Development (Development Assessment Panels) Regulations 2011 (DAP Regulations) Regulation 17 of the DAP Regulations allows for landowners to do any or all of the following with regard to an approved development application:
“(a)to amend the approval so as to extend the period within which any development approved must be substantially commenced;
(b) to amend or delete any conditions to which the approval is subject; (c) to amend an aspect of the development approved which . if amended,
would not substantially change the development approved;
(d) to cancel the application”. With respect to this Regulation, the applicant seeks approval in accordance with (b) to delete condition r and amend condition s of the approval.
A comprehensive assessment has been undertaken in accordance with clause 67 of the Planning and Development (Local Planning Schemes) Regulations 2015, this Technical Assessment can be viewed as part of Attachment 3. For the purposes of this report, matters in relation to the conditions will be discussed. Conditions In 2016, the Western Australian Court of Appeal unanimously allowed an appeal against the decisions of the Supreme Court and State Administrative Tribunal (SAT) to uphold certain subdivision conditions. Although the particulars of this case are not relevant in this instance, the case emphasises the three elements used to legally test planning conditions and their validity.
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A condition of planning approval will not be valid unless it can comply with the following three tests summarised as planning purpose, nexus and reasonableness:-
1. The condition is for a planning purpose that implements a planning policy through planning legislation;
2. The condition reasonably and fairly relates to the development permitted; and
3. The condition is not so unreasonable that no reasonable planning authority could have imposed it.
In considering the proposal for the amendment and deletion of the conditions, these tests have been applied.
Condition R As previously stated, condition r is as follows:-
“Prior to operation, a contribution of 1% of construction costs shall be paid to Council for the establishment of public art in accordance with Council’s Local Planning Policy 1.6 – Public Art, to the satisfaction of the Shire of Serpentine Jarrahdale.”
The applicant has argued as part of the application that this condition does not serve a planning purpose and refers to the recent SAT determination of BGC (Australia) Pty Ltd and The Presiding Member of the Metropolitan East Joint Development Assessment Panel (DR 87 of 2018). In this case, the SAT held that the policy requiring a public art contribution did not demonstrate a connection between the development and the need for the required public art. It simply relied on an arbitrary construction value as the basis of requiring public art rather than identifying particular need generated by the form of the development. In the decision, the SAT determined that where there was no adverse visual amenity impact caused by the development, it was inappropriate to apply a condition requiring the provision of public art. The applicant considers in this instance that the existing and proposed development does not adversely impact on the amenity of the area and therefore a public art contribution is not required. Planning Purpose Local Planning Policy 1.6 - Public Art (LPP1.6) sets out the requirements for physical and financial contributions for public art as part of applications within the Shire with a development value greater than $1 million. Generally, this requirement is imposed by way of a condition on a development approval. The objectives of this policy are to:-
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“Create artworks in public spaces that are site specific, meaningful and integrated into built and natural forms within the Shire;
Enhance public enjoyment, engagement and understanding of places through the integration of public art, thereby enhancing sense of place;
Enhance the appearance, character and value of buildings and places through the inclusion of high quality public art; and
Establish a clear and equitable system for the provision of public art in the development process.”
It is considered that this case differs from the recent SAT decision in that the area is zoned ‘Rural’ and not industrial. Although the site is located adjacent to Thomas Road, which accommodates a large number of vehicles, the area has retained its rural character. It is acknowledged that in an industrial area, industrial style buildings would be commonplace and the visual appearance of these buildings would be consistent with the zone. In an industrial area, Officers consider that public art would not necessarily be a requirement to soften the appearance of a development that is designated to be in that zone. In addition, the only people who would really benefit from public art in this location would be employees or visitors to the asphalt plant. In this case, Officers consider the facts are different to the recent SAT case. The approved development comprises of commercial buildings that although do not unduly impact on the rural character, they are not rural in nature and do have an impact on the visual amenity of the area. It is considered that the construction of public art would be to the benefit of the local community and passers-by to “enhance the appearance, character and value of buildings and places through the inclusion of high quality public art”, in accordance with the policy objectives. Furthermore, the subject site is located in a prominent position and would be visible from neighbouring properties, customers and passers-by. The benefit of the public art would be to a much larger and wider range of members of the local community, visitors to the area and passers-by. The benefit of the public art wold not just be for the employees of the site and visitors associated with the business as with the SAT case. In addition, the Shire’s Rural Strategy Review 2013 states the purpose of the ‘Rural’ policy area is to “maintain the integrity of the Shire’s rural and agricultural character”. Although commercial development can be considered in the ‘Rural’ zone, it is imperative that the rural character of the area is maintained, in accordance with the Strategy. Officers consider that there is a planning purpose to the condition as the public art would enhance the rural character of the area and would offset the impact of commercial buildings in a rural setting. The condition is
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implemented through the Local Planning Policy and further supported by the Rural Strategy. Relationship with the Development: It is considered that the condition is reasonable and fairly relates to the development. The approval relates to commercial development in a rural area. The contribution or provision of public art is considered reasonable as it would contribute towards the amenity and rural character of the area for the reasons stated previously. There is a clear nexus between the approved development and the requirement for a public art contribution. Reasonableness: For the reasons previously stated, the condition is considered reasonable and it is common practice for Local Governments to seek a contribution towards public art. The Local Planning Policy has been adopted in accordance with the Planning and Development (Local Planning Schemes) Regulations 2015 and it is reasonable for a Local Government to enforce the policy in this instance. Condition S “s. That any remnant buildings on the site, not shown on the approved
plans, must be removed and made good to the satisfaction of the Shire of Serpentine Jarrahdale.”
It is proposed to delete this condition to allow for the existing buildings on the site to remain. The applicant sets out that the subject site contains a number of buildings, the ones associated with the existing Oakford Traders development and an existing dwelling with associated buildings. The applicant accepts that the use of the buildings for the existing Oakford Traders will cease however does not consider that this requires for the built form to be demolished. It is the applicant’s intention to submit a further development application to secure a suitable use for these buildings in the future. The applicant proposes to delete the current condition and replace it as follows:- “The land use activities of the liquor store and service station in the existing structure on the land are to cease upon these activities becoming operational in the new structures that will be constructed as part of the implementation of this approval”. The approved development was assessed on the basis that the new buildings would replace the existing ones and therefore to be able to determine whether Officers support the removal of the condition it is required to assess the impact of the existing built form remaining in addition to the approved buildings. As such, the following policy documents are considered relevant:-
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TPS2 Clause 5.10.1 of TPS2 states “the purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area”. The existing building is of a commercial design and is unlikely to be used in the future for a ‘rural pursuit’. It is however, acknowledged that land uses other than those considered a ‘rural pursuit’ can be considered in the ‘Rural’ zone under Table 1 – Zoning Table of TPS2. Once the use of the existing building ceases, any further uses, unless exempt under TPS2, will require a development application to be submitted to and approved by the Shire. At that stage, the proposed use will be assessed against the objective of the ‘Rural’ zone. Rural Strategy Review 2013 (Strategy) The subject site is designated as ‘Rural’ under the Strategy. The purpose of the ‘Rural’ policy area under the strategy is to “maintain the integrity of the Shire’s rural and agricultural character”. Notwithstanding this designation, the Strategy recognises that economic returns for some forms of agriculture are diminishing. It also recognises the importance of “the longer term rural landscape, features and amenity of the Shire along with the application of appropriate planning principles”. The approved development was considered acceptable in accordance with the Strategy and this was also accepted by the JDAP. Officers agree with the applicant, that the existing buildings are of an older form of architecture reminiscent of a roadhouse development. Due to the, siting, scale and visual appearance of these buildings, Officers consider that the retention of the buildings would not adversely impact on the rural character of the area. Officers however consider that as well as the use ceasing, the condition should also require for the existing crossovers to be removed and any signage on the existing buildings to be removed. This would reduce the appearance of the building as an additional commercial building until such as time as when a further development application for the use is received and approved. As stated by the applicant, there is an existing dwelling located on the site with associated structures. Officers consider that the intent of the condition was not for these to be required to demolished and therefore Officers have no objections to these buildings remaining. It is therefore considered that the condition is reworded as follows: “Upon commencement of operation of the development hereby approved, the land use of the existing liquor store and convenience store shall cease and all signage removed. The existing crossovers shall be removed and the verge reinstated to the satisfaction of the Shire of Serpentine Jarrahdale and Main Roads Western Australia”.
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Council Recommendation: Refer to Attachment 3 Conclusion:
The application seeks approval for the removal of a planning condition requiring a contribution towards public art. Approval is also sought to amend the condition requiring for all remnant buildings on the site to be demolished once the new development commences operation. Officers have no objections to the retention of the existing buildings subject to all signage being removed for the reasons set out in the report. Officers do not consider that the condition requiring a contribution towards public art should be approved to preserve the rural character of the area.
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8403_18Nov03L_gh
Job Ref: 8403
19 November 2018
Shire of Serpentine Jarrahdale
6 Paterson Street
MUNDIJONG WA 6123
Attention: Ms Heather Coles-Bayes – Senior Planning Officer
Dear Ms Coles-Bayes
Application under Regulation 17 – Amendment Request to Approval
Redevelopment of Oakford Traders Liquor Store, Convenience Store and
Fuel Station - Lot 196 Thomas Road, Oakford
Rowe Group acts on behalf of Humich Nominees Pty Ltd & Far Super Pty Ltd
(our ‘Client’), the landowner of Lot 196 Thomas Road, Oakford (the ‘subject site’).
Pursuant to Regulation 17 of the Planning and Development (Development
Assessment Panels) Regulations 2011, this application seeks the deletion of
conditions ‘r’ and ‘s’ as depicted on DAP Approval DP/13/00615 (LG Ref:
PA/18/542) which was issued by the Metro East Joint Development Assessment
Panel (‘JDAP’) on 9 November 2018.
Please find attached the following documents forming our request under
Regulation 17 of the Planning and Development (Development Assessment Panels)
Regulations 2011:
- A copy of the current Certificate of Title;
- A completed and signed Development Assessment Panel Application Form
2;
- A copy of the original Development Approval (DAP Ref: DAP/13/00615)
- A copy of the most recent Development Approval (DAP Ref: DP/13/00615);
- A site plan depicting the existing structures that are to remain, and
- A cheque for $536.00, being the application fee for an Amended
Development Application under Regulation 17.
Further background and justification in support of this application is provided
below.
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8403_18Nov03L_gh
Background
Planning Approval was originally issued by the Metro East JDAP on 4 November 2013 for the proposed
redevelopment of the site known at the “Oakford Traders” for use as a Liquor Store, Convenience Store and
Service Station. The original approval sought for the relocation and redevelopment of the Oakford Traders,
including the redevelopment of the service station, approximately 100 metres to the east of the current location
to bring the existing operations into line with contemporary standards, whilst improving the overall aesthetics of
the site through architectural design.
Specifically, the approved development comprised the following:
- Relocation of the convenience shopping store which includes café/restaurant facilities and the
redevelopment of a service station with a floor area of 340m²;
- Relocation of the current liquor store with a floor area of 292m²;
- Car wash and rest area;
- Service station with fuel for cars and separate fuel and parking for trucks;
- Security fencing (2.1 metres) being proposed at the rear; and
- Playground and recreation area / alfresco.
Subsequent applications to extend the term of planning approval from that of the original Planning Approval
have since been lodged and approved by the JDAP, due to complexities involved with a number of the conditions
of approval, detailed as follows:
- DAP/13/00615, approved on 29 September 2015 which sought to extend the term of planning approval by
two (2) years.
- DAP/13/00615, approved on 9 January 2018, which sought to extend the term of the planning approval by
an additional two (2) years.
More recently an application to modify the proposal by undertaking minor modifications to the approved layout,
removal of the car wash facility and removal of the restriction to the hours of operation for the service station
was approved by the JDAP.
Proposed Amendments to DAP Approval DAP/13/00615
The Proposed Application seeks the following amendments to DAP Approval DAP/13/00615:
1. Deletion of Condition ‘r’;
‘Prior to operation, a contribution of 1% of construction costs shall be paid to Council for the establishment of
public art in accordance with Council’s Local Planning policy 1.6 – Public Art, to the satisfaction of the Shire of
Serpentine Jarrahdale.’ and
2. Deletion of Condition ‘s’:
‘That any remnant buildings on site, not shown on the approved plans, must be removed and made good to the
satisfaction of the Shire of Serpentine Jarrahdale.’
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Further details and justification with respect to each of the proposed amendments is provided below for your
consideration.
1. Deletion of ‘Public Art’ Condition
Condition ‘r’ of the 9 November 2018 Development Approval reads:
r. Prior to operation, a contribution of 1% of construction costs shall be paid to Council for the
establishment of public art in accordance with Council's Local Planning Policy 1.6 - Public Art, to the
satisfaction of the Shire of Serpentine Jarrahdale.
It is requested that Condition ‘r’ be removed from the Development Approval as the condition does not serve a
proper planning purpose.
We refer to the recent State Administrative Tribunal (‘Tribunal’) decision of BGC (Australia) Pty Ltd v Metro East
Joint Development Assessment Panel. Similar to the Application for the Oakford Traders site, the Metro East
JDAP had imposed a condition requiring the provision of public art in accordance with the City of Swan’s
Provision of Public Art Local Planning Policy, at the City’s recommendation. BGC (Australia) Pty Ltd appealed the
decision, requesting that the Tribunal remove the public art condition.
In its decision, the Tribunal determined that the provisions of the City of Swan’s Provision of Public Art Local
Planning Policy (which is not dissimilar to the Shire if Serpentine Jarrahdale’s Local Planning Policy No. 1.6 –
Public Art (‘LPP 1.6’)) did not serve a proper planning purpose. The Tribunal also found that the City of Swan’s
policy did not demonstrate the connection between development and the need for the required public art. It
simply relied on an arbitrary construction value (i.e. $2 million) as the basis of requiring public art rather than
identifying particular need for public art generated by the form of the development. In addition, the number of
employees generated by the proposal was raised as a possible consideration. The proposed development by
BGC (Australia) Pty Ltd proposed a minor increase of only four (4) staff.
In the decision of BGC (Australia) Pty Ltd v Metro East Joint Development Assessment Panel it was determined
that where there was no adverse visual amenity impact caused by the development, it was inappropriate to
apply a condition requiring the provision of public art.
The term ‘amenity’ is defined in Clause 1 of Schedule 2 of the Deemed Provisions of the Planning and
Development (Local Planning Schemes) Regulations 2015 (‘the Regulations’) as follows (underlined for author’s
emphasis):
amenity means all those factors which combine to form the character of an area and include the present and
likely future amenity.
Based on the definition of ‘amenity’ (above), consideration of any amenity impact needs to consider the existing
and likely future character of the locality and that of the subject site.
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Existing and Likely Future Visual Amenity of the Subject Site
In respect to the existing visual amenity of the subject site, the proposal has no adverse impact. The subject site
is generally vacant, with exception of an existing liquor store and service station at the north western corner of
the site. This existing building is proposed to be retained, although the use would cease upon the new
development commencing operation. The existing building is shown in Figure 1. The site also includes a
dwelling that is to remain however the dwelling is not visible from the street.
Figure 1 – Existing Oakford Traders Liquor Store.
The existing Oakford Traders Liquor Store and service station building is an older form of architecture
reminiscent of a roadhouse development.
The proposed new development incorporates a range of features that will contribute and improve the visual
amenity of the subject site. These include:
- Timber ‘look’ construction materials in the service station façades and canopy;
- Full height windows to the front of the convenience store building;
- Feature walls which provide a vertical element to the convenience store building; and
- An outdoor seating area, which links the development back to the historic use of the subject site as a
roadhouse.
Given these features, the proposed development will improve the appearance of development at the subject site
and therefore improve the visual amenity of the subject site – not negatively impact it.
In respect to the likely future visual amenity of the subject site, the proposal will have no adverse impact. The
likely future visual amenity of the subject site is guided by the Shire’s Rural Strategy Review (‘the Rural Strategy’)
and Local Planning Policy No. 2.5 – Activity Centres (‘LPP 2.5’).
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8403_18Nov03L_gh
The subject site is designated as ‘Rural’ by the Rural Strategy. The purpose of the ‘Rural’ Policy Area under the
Rural Strategy is to:
maintain the integrity of the Shire’s rural and agricultural character.
Notwithstanding this designation, the Rural Strategy does acknowledge that the economic return for some
forms of agricultural activities are diminishing. The Rural Strategy also acknowledges the importance of:
the longer term rural landscape, features and amenity of the Shire along with the application of appropriate
planning principals.
The land in the ‘Rural’ Policy Area is not just designated as such to provide for agricultural operations but to
retain large parcels of land for future development.
In this instance, the proposed development is located on a small portion of the subject site. The balance of the
subject site would be undeveloped and potentially used for agricultural (or other future) purposes, therefore
keeping the likely future visual amenity of most of the subject site consistent with the Rural Strategy.
Existing and Likely Future Amenity of the Locality
We are of the view that the area relevant to consideration of this Application (or the locality) is defined as the
area zoned ‘Rural’ under the Shire’s Town Planning Scheme No. 2 (‘TPS 2’) and which is bound by Nicholson Road
to the west, the southern and eastern lot boundaries of the subject site (given the substantial size of the subject
site and the distance between the proposed development and the southern and eastern lot boundaries) and the
properties immediately north of Thomas Road.
In respect to the existing amenity of the locality, the proposal has no adverse impact. The locality is generally
characterised as semi-rural properties, with a single dwelling and ancillary structures. The proposed
development will increase the number of non-residential and non-rural buildings at the subject site by two (2).
However, the proposal will not change the current character of the land nor its appearance from the semi-rural
properties north of Thomas Road. Therefore, the proposal will not have an adverse impact on the existing visual
amenity of the locality. Rather, and as previously discussed, the proposal will improve the visual amenity of the
subject site and this will benefit the locality.
In respect to the likely future amenity of the locality, the proposal has no adverse impact. The land north of
Thomas Road is designated as 'Rural Living B' by the Rural Strategy but has recently also been approved for use
as a service station. As previously stated the subject site is designated as 'Rural'. The purpose of the 'Rural
Living B' Policy Area is to:
provides an opportunity for residential uses in a rural setting.
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8403_18Nov03L_gh
The Rural Strategy states that land with the 'Rural Living B' designation can be subdivided into lots of
approximately 2ha to 4ha. The Rural Strategy also states that a scheme amendment would be required to allow
rural residential development and subdivision.
Number of Staff
It is anticipated the proposed development will have five (5) employees being the same number as the existing
Oakford Traders Liquor Store and Service Station. This is considered to be a relatively small workforce and is not
dissimilar from the number of staff proposed by the BGC (Australia) Pty Ltd development.
The presence of five (5) staff at the proposed development will not have an adverse impact on the subject site
and the locality, nor warrant the requirement for public art.
Given the above, we are of the view that Condition ‘r’ should be removed for the following reasons:
- The provisions of LPP 1.6 do not serve a proper planning purpose. In the same way as the City of Swan’s
Provision of Public Art Local Planning Policy, LPP 1.6 simply relies on an arbitrary construction value (i.e. $1
million in the case of the Serpentine Jarrahdale Public Art Policy) as the basis of requiring public art rather
than identifying particular need for public art generated by any form of development;
- The proposal does not cause any adverse visual amenity impact on the existing and likely future amenity of
the subject site and the locality (as explained above); and
- There is no connection between the proposed development and the need to provide public art. The
proposed development does not cause any adverse visual amenity impact to require the provision of public
art at the subject site. As there is no visual impact to ameliorate, there is no requirement for public art to
be provided.
Therefore, Condition ‘r’ from the 9 November 2018 Development Approval should be removed.
2. Deletion of Requirement to Remove Remnant Buildings
As depicted on the attached site plan, the subject site currently includes a number of existing structures. One
group of existing structures is associated with the existing liquor store and service station whilst the other group
of structures is associated with an existing dwelling. None of the existing structures are affected by any of the
works associated with the proposed new Liquor Store, Convenience Store and Fuel Station.
Condition ‘s’ of the 9 November, 2018 approval requires that any remnant buildings not shown on the approved
plans must be removed. There was no similar or corresponding condition on the development approvals
previously issued by the JDAP. The application submitted relative to the 9 November, 2018 approval was
submitted under the pursuant to Regulation 17 of the Planning and Development (Development Assessment Panels)
Regulations 2011, and did not seek any addition of conditions pursuant to the removal of buildings that were not
associated with the development application.
Whilst it is accepted and that the land use activities of the liquor store and service station currently undertaken
within the existing Oakford Traders buildings would need to cease at the time that the new development is
operational, this should not necessitate the removal of the old buildings associated with those land uses. It is
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8403_18Nov03L_gh
our client’s intention to retain those built structures and to seel a separate change of use application for those
buildings once a suitable land use activity has been determined. This will required further commercial
considerations and discussions with the Shire. The crossovers associated with the existing uses would need to
be decommissioned as is depicted on the approved plans. The existing dwelling is intended to continue to
operate as a dwelling as it is not affected by to relocation of the liquor store and service station land uses.
It is accepted that it may be appropriate to replace condition ‘s’ with a condition stating as follows:
‘The land use activities of the liquor store and service station in the existing structures on the land are to cease
upon these activities becoming operational in the new structures that will be constructed as part of the
implementation of this approval.’
The replacement of condition ‘s’ with the above mentioned condition will allow the exiting dwelling to remain in
its current form and use, and will allow the existing structures comprising the current Oakford Traders Liquor
Store and Service Station to remain for future re-use.
Conclusion
This application seeks modifications to Planning Approval DAP/13/00615. As summarised within this
submission, the alterations relate to conditions ‘r’ and ‘s’ of the 9 November, 2018 approval. Condition ‘r’ relating
to public art is not considered to be appropriate in the context of the proposal and should be removed in its
entirety. Condition ‘s’ is not considered to be necessary given it requires removal of structures that have an
intrinsic value but which are not impacted by the proposed new buildings. It is understood that there may be a
concern with respect to the possibility of two service stations and two liquor stores operating from the site if the
approved development is established in addition to the existing uses. This concern can be addressed through
an appropriate condition requiring the cessation of the existing liquor store and service station uses once the
new development is operational however removal of the built form structures is not necessary. Furthermore
the exiting dwelling is not associated with the proposed development and has no impact on it. Removal of the
dwelling should therefore not be required.
We trust the information contained within this submission is sufficient to enable the Shire’s assessment of the
proposed modifications to DAP Approval DAP/13/00615. Should you require any further information or
clarification in relation to this matter, please contact the undersigned on 9221 1991.
Yours faithfully,
George Hajigabriel
Rowe Group
Encl.
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8403_18Nov03L_gh
Attachment One
Copy of the Certificate of Title
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8403_18Nov03L_gh
Attachment Two
Copy of the Development Plan
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8403_18Nov03L_gh
Attachment Three
A copy of the Signed and Completed DAP Form 2
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8403_18Nov03L_gh
Attachment Four
A copy of DAP Approval DAP/13/00615 dated 8 November 2013
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8403_18Nov03L_gh
Attachment Five
A copy of DAP Approval DAP/13/00615 dated 9 November 2018
LANDGATE COPY OF ORIGINAL NOT TO SCALE
www.landgate.wa.gov.au
JOB 57268476Thu Jul 26 14:25:34 2018
LG Ref: PA18/542 DAP Ref: DP/13/00615 Enquiries: (08) 6551 9919
Mr George Hajigabriel Rowe Group 3/369 Newcastle Street NORTHBRIDGE WA 6003
Dear Mr Hajigabriel METRO EAST JDAP - SHIRE OF SERPENTINE JARRAHDALE - DAP APPLICATION - PA18/542 - DETERMINATION
Property Location: Lot 196 (1526) Thomas Road, Oakford
Application Details: Amendments to Approval for the redevelopment of Oakford Traders Liquor Store, Convenience Store and Fuel Station.
Amendment Details: Form 2.3 - Hours of Operation, removal of car wash facility and alterations to site layout.
Thank you for your Form 2.3 Development Assessment Panel (DAP) application and plans submitted to the Shire of Serpentine Jarrahdale on 31 July 2018 for the above-mentioned development. The application was considered by the Metro East JDAP at its meeting held on 6 November 2018, where in accordance with the provisions of the Shire of Serpentine Jarrahdale Town Planning Scheme No. 2, it was resolved to approve the application as per the attached notice of determination.
Should the applicant not be satisfied by this decision, an application may be made to amend or cancel this planning approval in accordance with regulation 17 and 17A of the Planning and Development (Development Assessment Panels) Regulations 2011. Please also be advised that there is a right of review by the State Administrative Tribunal in accordance with Part 14 of the Planning and Development Act 2005. Such an application must be made within 28 days of the determination, in accordance with the State Administrative Tribunal Act 2004.
Should you have any queries with respect to the conditions of approval, please contact Ms Heather Coles-Bayes on behalf of the Shire of Serpentine Jarrahdale on 9526 1130. Yours sincerely,
DAP Secretariat
9 November 2018
Postal address: Locked Bag 2506 Perth WA Street address: 140 William Street Perth WA 6000 Tel: (08) 6551 9919 Fax: (08) 6551 9961 TTY: 6551 9007 Infoline: 1800 626 477
Cc: Ms Heather Coles-Bayes Shire of Serpentine Jarrahdale
Postal address: Locked Bag 2506 Perth WA Street address: 140 William Street Perth WA 6000 Tel: (08) 6551 9919 Fax: (08) 6551 9961 TTY: 6551 9007 Infoline: 1800 626 477
Shire of Serpentine Jarrahdale Town Planning Scheme No. 2
Metro East Joint Development Assessment Panel
Determination on Development Assessment Panel Application for Planning Approval
Property Location: Lot 196 (1526) Thomas Road, Oakford Application Details: Amendments to Approval for the redevelopment of Oakford Traders Liquor Store, Convenience Store and Fuel Station. Amendment Details: Form 2.3 - Hours of Operation, removal of car wash facility and alterations to site layout. In accordance with regulation 8 of the Planning and Development (Development Assessment Panels) Regulations 2011, the above application for planning approval was granted on 6 November 2018, subject to the following: 1. Accept that the DAP Application reference DP/13/00615 as detailed on the
DAP Form 2 dated 27 July 2018 is appropriate for consideration in accordance with regulation 17 of the Planning and Development (Development Assessment Panels) Regulations 2011;
2. Approve amendments to DAP Application reference DP/13/00615 being
the redevelopment of Oakford Traders liquor store, convenience store and fuel station at Lot 196, 1526 Thomas Road, Oakford, subject to the following conditions:-
a. The development is to be carried out in compliance with the plans and documentation listed below and endorsed with the Shire of Serpentine Jarrahdale stamp, except where amended by other conditions of this consent.
Plans and Specifications
P1-P5 received at the Shire’s Offices on the 10 September 2018 as amended.
b. The easternmost access shall be designed to incorporate a left turning pocket and shall comply with Main Roads WA specifications for the relevant design speed.
c. All heavy vehicles shall enter and exit the site via the easternmost crossover only and this access arrangement shall have adequate signage to this effect.
d. Modified crossovers and the verge shall be made good at the applicants cost and to the Shire of Serpentine-Jarrahdale's standards.
e. All truck parking shall be located to the rear of the site to overcome any potential conflicts with entering and exiting traffic.
Page 1 of 4
f. The internal road network within the development site shall be designed to have an internal turn around facility or area that enables heavy vehicles to turn around and exit the easternmost crossover in forward gear. This shall be designed for a minimum design vehicle of a 27.5 metre B Double.
g. The developer shall be responsible for all costs involved in the land acquisition (if required), design and construction of the left turning deceleration lane for the easternmost access. This includes signing, road markings, relocation of services, street lighting and Main Roads costs involved in the checking of the design and constructions drawings and any site inspections required.
h. Any services, infrastructure or roadside furniture that requires relocation as a result of the applicant's works will be at the applicant's cost.
i. No earthworks, unless otherwise approved, shall encroach onto the Thomas Road road reserve.
j. Any land required for the access arrangements shall be ceded at no cost to Main Roads WA for road dedication purposes for inclusion into the Thomas Road road reserve.
k. Prior to commencement of any site works, a Dust Management Plan is to be submitted to and approved by the Shire of Serpentine Jarrahdale in accordance with the Department of Environment and Conservation "Guidelines for the prevention of dust and smoke pollution from land development sites in Western Australia". The approved Dust Management Plan shall be implemented thereafter.
l. Prior to commencement of works, an Urban Water Management Plan shall be submitted to and approved by the Shire of Serpentine Jarrahdale. Once approved, the Urban Water Management Plan is to be implemented in its entirety.
m. All storm water shall be disposed of within the property. Direct disposal of storm water onto the road, neighbouring properties, watercourses and drainage lines is not permitted.
n. Prior to commencement of works, a Lighting Plan shall be submitted to and approved by the Shire of Serpentine Jarrahdale. The Lighting Plan shall demonstrate the provision of lighting to all access ways, car parking areas, the exterior entrances to all buildings and the extent to which light from all external light sources is cast. Once approved, the lighting plan shall thereafter be implemented in its entirety.
o. Prior to commencement of works, a Waste Storage and Removal Plan shall be submitted to and approved by the Shire of Serpentine Jarrahdale. Once approved, the Waste Storage and Removal Plan shall be implemented in its entirety.
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p. Prior to the commencement of works, a Signage Strategy detailing location, size and height of signage for the whole development, including wall signs, window signs, under verandah signs and fascia signs, shall be submitted to and approved by the Shire of Serpentine Jarrahdale.
q. Prior to commencement of works, a Landscape and Vegetation Management Plan, including all car parking areas, access roads, road verges and areas of open space, shall be submitted to approved by the Shire of Serpentine Jarrahdale. The approved plan shall thereafter be implemented and maintained in its entirety.
r. Prior to operation, a contribution of 1% of construction costs shall be paid to Council for the establishment of public art in accordance with Council's Local Planning Policy 1.6 - Public Art, to the satisfaction of the Shire of Serpentine Jarrahdale.
s. That any remnant buildings on the site, not shown on the approved
plans, must be removed and made good to the satisfaction of the Shire of Serpentine Jarrahdale.
t. Approval for 24 hour operation only applies to the fuel station and
associated convenience store.
Advice notes
(a) In respect to Condition k, Application Kits can be found on the Main Roads website>"Our Roads">"Conducting Works on Roads>" Applications to Undertake Works on State Roads"> Application Kit and Guidelines for Complex Works OR Application Form for Low Complexity Works.
(b) With regard to conditions c and f, a swept path analysis shall be submitted to the Shire of Serpentine Jarrahdale to demonstrate the ability for the most restrictive movement vehicle to enter and exit the site.
(c) The intersection of Thomas Road and Nicholson Road is recognised as a dangerous black spot and has received funding from the Road Trauma Fund account to undertake preliminary planning design concepts. Currently the traffic modelling depicts the preferred intersection at this location as a roundabout treatment, for both interim and ultimate stages.
(d) The project for the upgrading/widening of Thomas Road and Nicholson Road is not in Main Roads current 4-year forward estimated construction program and all projects not listed are considered long term.
(e) Please be aware the timing information for the construction of the preferred treatment (both interim and ultimate stages) is subject to change and Main Roads assumes no liability for the information provided.
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(f) The developer is required to obtain a ‘Works by Others' approval to undertake such modifications to the road network. A "Works by Others" approval is subject to a 100% design review prior to any consideration to modify a Main Roads asset or road network.
All other conditions, footnotes and advice notes remain as per the DAPs’ original decision dated 4 November 2013. Where an approval has so lapsed, no development shall be carried out without further approval having first been sought and obtained, unless the applicant has applied and obtained Development Assessment Panel approval to extend the approval term under regulation 17(1)(a) of the Planning and Development (Development Assessment Panels) Regulations 2011.
Technical Report TRIM Number: PA18/1015 Synergy Number: PA18/1015
Lodgement Date: 22 November 2018 DAU Date:
Address: Lot 196, 1526 Thomas Road, Oakford
Proposal: Deletion of Conditions of approval for redevelopment of Service Station in relation to the demolition of existing buildings and the monetary contribution towards public art.
Land Use: ‘Service Station’, ‘Convenience Store’ and ‘Use Not Listed’.
Permissibility: ‘SA’
Owner: Humich Nominees Pty Ltd and Far Super Pty Ltd
Applicant: Rowe Group - G Hajigabriel
Zoning: ‘Rural’ Density Code: R2
Delegation Type: N/A Officer: Heather Coles-Bayes
Site Inspection: Yes
Advertising: N/A
Outstanding Internal Referrals: No
External Referrals: No
Within a Bushfire Prone Area: Yes
Introduction:
A development application has been received 22 November 2018 to delete a condition of a
development approval and amend a condition of a development approval for the
redevelopment of Oakford Traders Liquor Store, Convenience Store and Fuel Station.
The condition proposed to be deleted relates to the requirement for the applicant to make a monetary contribution to the Shire towards public art. It is also proposed to amend a condition that requires the remnant buildings on site to be demolished. This report recommends that the removal of the condition in relation to a contribution towards public art be refused for the reasons outlined in the assessment and that the amendment of the condition in relation to the retention of the existing buildings be approved. Officers however propose further amendments to the proposed condition as amended by the applicant.
Background:
On 4 November 2013, the Metro East JDAP approved a development application for the redevelopment of the Oakford Traders Liquor Store, Convenience Store and Service Station. The approval had 29 conditions including the preparation of a number of technical reports. In 2015, an application was submitted to the Shire and approved by the JDAP to extend the timeframe for commencement of the approval for a period of two years. A further proposal was submitted to the Shire and determined by the JDAP to extend this timeframe by another two years. This application was approved on 9 January 2018.
Subsequently, on 6 November 2018 the JDAP approved a further development application
modifying the site layout and allowing the proposed ‘Service Station’ and ‘Convenience Store’
to operate 24 hours a day, seven days a week. This approval contains several conditions to
which the current application relates.
Existing Development:
The subject site is located to the east of Nicholson Road at its intersection with Thomas Road.
Thomas Road, to the north, is classified as a Primary Regional Road under the Metropolitan
Region Scheme (MRS). Nicholson Road is identified as an Other Regional Road under the
MRS.
In addition to a residential property located to the south west of the site, the land contains an
existing business enterprise, Oakford Traders which currently comprises of a convenience
store and liquor store. Once the current approval commences operating, these remnant
buildings are required to be demolished, enforced by way of a planning condition. The property
is surrounded largely by rural paddocks.
Proposed Development
The application seeks approval for the deletion of condition r and the amendment to
condition s on the current development approval. The conditions state as follows:-
“r. Prior to operation, a contribution of 1% of construction costs shall be paid to Council for the establishment of public art in accordance with Council’s Local Planning Policy 1.6 – Public Art, to the satisfaction of the Shire of Serpentine Jarrahdale.”
“s. That any remnant buildings on the site, not shown on the approved plans, must be removed and made good to the satisfaction of the Shire of Serpentine Jarrahdale.
Community / Stakeholder Consultation:
The subject application has not been advertised. The subject application is made under
Clause 17A of the Planning and Development (Development Assessment Panels) Regulations 2011 (DAP Regulations). Clause 17A (1) states:-
“……the provisions of the Act, the Planning and Development (Local Planning Schemes) Regulations 2015, the Planning and Development Regulations 2009 and the relevant planning instrument apply to the making and determination of, and the review of a decision on, an application as if the development approval –
(a) Had not been granted pursuant to a DAP application; and (b) Had been granted by the responsible authority”.
As such, Clause 77 of the Deemed Provisions, which form part of the Shire’s Town Planning
Scheme, applies to the subject application. This clause relates to applications that seek
approval to amend existing approval. Clause 77 allows for a Local Government to waive any
of the requirements in Part 8 (the procedure for determining a new development application),
such as advertising.
In this case, it is considered that the deletion and amendment of the conditions would not
fundamentally alter the approved development and therefore this element of the process was
waived. In addition, there were no submission made as part of the referral process for the
approved development application.
Statutory Environment:
Legislation
• Planning and Development Act 2005; • Planning and Development (Development Assessment Panels) Regulations 2011
(Deemed Provisions) • Planning and Development (Local Planning Schemes) Regulations 2015 • Metropolitan Region Scheme • Shire of Serpentine-Jarrahdale Town Planning Scheme No. 2
State Government Policies
• State Planning Policy 2.5 Rural Planning (SPP2.5)
Local Policies
• Shire of Serpentine Jarrahdale Rural Strategy Review 2013
• Local Planning Policy - Public Art (LPP1.6)
Planning Assessment:
Planning and Development (Development Assessment Panels) Regulations 2011 (DAP
Regulations)
Regulation 17 of the DAP Regulations allows for landowners to do any or all of the following
with regard to an approved development application:
“(a)to amend the approval so as to extend the period within which any development approved must be substantially commenced;
(b) to amend or delete any conditions to which the approval is subject;
(c) to amend an aspect of the development approved which . if amended, would not substantially change the development approved;
(d) to cancel the application”.
With respect to this Regulation, the applicant seeks approval in accordance with (b) to delete
condition r and amend condition s of the approval.
A comprehensive assessment has been undertaken in accordance with clause 67 of the Planning and Development Regulations 2015, the assessment can be viewed as part of the attachment. For the purposes of this assessment, matters in relation to the conditions will be discussed.
Conditions
In 2016, the Western Australian Court of Appeal unanimously allowed an appeal against the
decisions of the Supreme Court and State Administrative Tribunal (SAT) to uphold certain
subdivision conditions. Although the particulars of this case are not relevant in this instance,
the case emphasises the three elements used to legally test planning conditions and their
validity.
A condition of planning approval will not be valid unless it can comply with the following three
tests summarised as planning purpose, nexus and reasonableness:-
1. The condition is for a planning purpose that implements a planning policy through
planning legislation;
2. The condition reasonably and fairly relates to the development permitted; and
3. The condition is not so unreasonable that no reasonable planning authority could
have imposed it.
In considering the proposal for the amendment and deletion of the conditions, these tests have
been applied.
Condition R As previously stated, condition r states as follows:-
“Prior to operation, a contribution of 1% of construction costs shall be paid to Council for the establishment of public art in accordance with Council’s Local Planning Policy 1.6 – Public Art, to the satisfaction of the Shire of Serpentine Jarrahdale.”
The applicant has argued as part of the application that this condition does not serve a
planning purpose and refers to the recent SAT determination of BGC (Australia) Pty Ltd and
The Presiding Member of the Metropolitan East Joint Development Assessment Panel (DR
87 of 2018). In this case, the SAT held that the policy requiring a public art contribution did not
demonstrate a connection between the development and the need for the required public art.
It simply relied on an arbitrary construction value as the basis of requiring public art rather than
identifying particular need generated by the form of the development.
In the decision, the SAT determined that where there was no adverse visual amenity impact
caused by the development, it was inappropriate to apply a condition requiring the provision
of public art. The applicant considers in this instance that the existing and proposed
development does not adversely impact on the amenity of the area and therefore a public art
contribution is not required.
Planning Purpose
Local Planning Policy 1.6 - Public Art (LPP1.6) sets out the requirements for physical and financial contributions for public art as part of applications within the Shire with a development value greater than $1 million. Generally, this requirement is imposed by way of a condition on a development approval. The objectives of this policy are to:-
• “Create artworks in public spaces that are site specific, meaningful and integrated into built and natural forms within the Shire;
• Enhance public enjoyment, engagement and understanding of places through the
integration of public art, thereby enhancing sense of place;
• Enhance the appearance, character and value of buildings and places through the inclusion of high quality public art; and
• Establish a clear and equitable system for the provision of public art in the development
process.”
It is considered that this case differs from the recent SAT decision in that the area is zoned ‘Rural’ and not industrial. Although the site is located adjacent to Thomas Road which accommodates a large number of vehicles, the area has retained its rural character. The approved development comprises of commercial buildings that although do not adversely impact on the rural character, they are not rural in nature. It is considered that the construction of public art would be to the benefit of the local community and passers-by to “enhance the appearance, character and value of buildings and places through the inclusion of high quality public art”, in accordance with the policy objectives. In addition, the Shire’s Rural Strategy Review 2013 states the purpose of the ‘Rural’ policy area is to “maintain the integrity of the Shire’s rural and agricultural character”. Although commercial development can be considered in the ‘Rural’ zone, it is imperative that the rural character of the area is maintained, in accordance with the Strategy. Officers consider that there is a planning purpose to the condition as the public art would enhance the rural character of the area and also would offset the impact of commercial buildings in a rural setting. Relationship with the Development: It is considered that the condition is reasonable and fairly relates to the development. The approval relates to commercial development in a rural area. The contribution or provision of public art is considered reasonable as it would contribute towards the amenity and rural character of the area. Reasonableness: For the reasons previously stated, the condition is considered reasonable and it is common practice for Local Governments to seek a contribution towards public art.
Condition S
“s. That any remnant buildings on the site, not shown on the approved plans, must be removed and made good to the satisfaction of the Shire of Serpentine Jarrahdale.
It is proposed to delete this condition to allow for the existing buildings to remain. The applicant sets out that the subject site contains a number of buildings, the ones associated with the existing Oakford Traders development and an existing dwelling with associated buildings. The applicant accepts that the use of the buildings for the existing Oakford Traders will cease however does not consider that this requires for the built form to be demolished. It is the applicants intention to submit a further development application to secure a suitable use for these buildings in the future. The applicant proposes to delete the current condition and replace it as follows:- “The land use activities of the liquor store and service station in the existing structure on the land are to cease upon these activities becoming operational in the new structures that will be constructed as part of the implementation of this approval”. The approved development was assessed on the basis that the new buildings would replace the existing ones and therefore to be able to determine whether Officers support the removal of the condition it is required to assess the impact of the existing built form remaining in addition to the approved buildings. As such, the following policy documents are considered relevant:- TPS2
Clause 5.10.1 of TPS2 states “the purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area”.
The existing building is of a commercial design and is unlikely to be used in the future for a
‘rural pursuit’. It is however, acknowledged that land uses other than those considered a ‘rural
pursuit’ can be considered in the ‘Rural’ zone under Table 1 – Zoning Table of TPS2. Once
the use of the existing building ceases, any further uses, unless exempt under TPS2, will
require a development application to be submitted to and approved by the Shire. At this stage,
the proposed use will be assessed against the objective of the ‘Rural’ zone.
Rural Strategy Review 2013 (Strategy)
The subject site is designated as ‘Rural’ under the Strategy. The purpose of the ‘Rural’ policy
area under the strategy is to “maintain the integrity of the Shire’s rural and agricultural character”. Notwithstanding this designation, the Strategy recognises that economic returns
for some forms of agriculture are diminishing. It also recognises the importance of “the longer term rural landscape, features and amenity of the Shire along with the application of appropriate planning principles”.
The approved development was considered acceptable in accordance with the Strategy due
to economic returns for some form of agriculture diminishing and that it would be to the
detriment of the rural area.
Officers agree with the applicant, that the existing buildings are of an older form of architecture
reminiscent of a roadhouse development. Due to the, siting, scale and visual appearance of
these buildings, Officers consider that the retention of the buildings would not adversely impact
on the rural character of the area.
Officers however consider that as well as the use ceasing, the condition should also require
for the existing crossovers to be removed and any signage on the existing buildings to be
removed. This would reduce the appearance of the building as an additional commercial
building until such as time as when a further development application for the use of the building
is received and approved.
As stated by the applicant, there is an existing dwelling located on the site with associated structures. Officers consider that the intent of the condition was not for these to be required to demolished and therefore Officers have no objections to these buildings remaining. It is therefore considered that the condition is reworded as follows: “Upon commencement of operation of the development hereby approved, the land use of the existing liquor store and convenience store shall cease and all signage removed. The existing crossovers shall be removed and made good to the satisfaction of the Shire of Serpentine Jarrahdale and Main Roads Western Australia”. Options and Implications: With regard to the determination of the application for planning approval under Town
Planning Scheme No. 2, DAU has the following options:
Option 1: DAU may resolve to approve the application subject to conditions.
Option 3: DAU may resolve to refuse the application subject to reasons.
Conclusion: The application seeks approval for the removal of a planning condition requiring a contribution
towards public art. Approval is also sought to amend the condition requiring for all remnant
buildings on the site to be demolished once the new development commences operation.
Officers have no objections to the retention of the existing buildings subject to all signage
being removed for the reasons set out in the assessment. Officers do not consider that the
condition requiring a contribution towards public art should be approved to preserve the rural
character of the area.
Deemed Provisions – Cl 67 Matters to be considered by local Government
Land Use:
a) The aims and provisions of this Scheme and any other local planning scheme operating within the area
YES
☒
NO
☐
N/A
☐
Comment: Clause 5.10.1 of TPS2 states “the purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area”. If the existing buildings on the site relating to Oakford Traders remain, the land use should cease. Any future land use, unless exempt, would require approval from the Shire. At this stage, the proposed land use will be assessed against the objective of the zone.
b) The requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting of approving
YES
☒
NO
☐
N/A
☐
Comment: The proposal is considered generally consistent with the principles of orderly and proper planning.
c) any approved State planning policy YES
☒
NO
☐
N/A
☐
Comment: Consistent with State Planning Policy 2.5 – Rural Planning (SPP2.5) with regard to the maintenance of the rural character of the area and any future land uses proposed would be considered by way of a development application.
d) any environmental protection policy approved under the Environmental Protection Act 1986 section 31(d) – None Applicable to this area from what I can determine
YES
☐
NO
☐
N/A
☒
Comment:
e) any policy of the Commission YES
☐
NO
☐
N/A
☒
Comment:
f) any policy of the State YES
☐
NO
☐
N/A
☒
Comment:
g) any local planning policy for the Scheme area YES
☐
NO
☒
N/A
☐
Comment: The requirement for a contribution towards public art is considered inconsistent with Local Planning Policy 1.6 - Public Art Policy for Major Developments (LPP1.6) for the reasons outlined in the assessment. As such, this element of the proposal is recommended for refusal.
h) any structure plan, activity centre plan or local development plan that relates to the development
YES
☐
NO
☐
N/A
☒
Comment:
i) any report of the review of the local planning scheme that has been published under the Planning and Development (Local Planning Schemes) Regulations 2015
YES
☐
NO
☐
N/A
☒
Comment:
j) in the case of land reserved under this Scheme, the objectives for the reserve and the additional and permitted uses identified in this Scheme for the reserve
YES
☐
NO
☐
N/A
☒
Comment:
Development:
k) the built heritage conservation of any place that is of cultural significance
YES
☐
NO
☐
N/A
☒
Comment:
l) the effect of the proposal on the cultural heritage significance of the area in which the development is located
YES
☐
NO
☐
N/A
☒
Comment:
m) the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development
YES
☒
NO
☐
N/A
☐
Comment: It is considered that the existing built form is compatible with its setting and due to its scale and setbacks would not adversely impact on adjoining landowners.
n) the amenity of the locality including the following – I. Environmental impacts of the development II. The character of the locality
III. Social impacts of the development
YES
☒
NO
☐
N/A
☐
Comment: The retention of the existing buildings is not considered to adversely impact on the environment, character of the locality or have any social impacts.
o) the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource
YES
☐
NO
☐
N/A
☒
Comment: The buildings on site proposed to be retained are existing.
p) whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved
YES
☒
NO
☐
N/A
☐
Comment: Landscaping has been dealt with as part of the new development. No further landscaping is considered necessary.
q) the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bushfire, soil erosion, land degradation or any other risk
YES
☐
NO
☐
N/A
☒
Comment:
r) the suitability of the land for the development taking into account the possible risk to human health or safety
YES
☐
NO
☐
N/A
☒
Comment:
s) the adequacy of – I. The proposed means of access to and egress from
the site; and II. Arragements for the loading, unloading,
manouvering and parking of vehicles
YES
☒
NO
☐
N/A
☐
Comment: It is considered that the existing crossovers to should be removed.
t) the amount of traffic likely to be generated by the development, particularly in relation to the capacity off the road system in the locality and the probable effect on traffic flow and safety
YES
☐
NO
☐
N/A
☒
Comment:
u) the availability and adequacy fir the development of the following –
I. Public transport services
YES
☐
NO
☐
N/A
☒
II. Public utility services III. Storage, management and collection of waste IV. Access for pedestrians and cyclists (including end of
trip storage, toilet and shower facilities) V. Access by older people and people with disability
Comment:
v) the potential loss of any community service or benefit resulting from the development other than potential loss that may result from economic competition between new and existing businesses
YES
☐
NO
☐
N/A
☒
Comment:
w) the history of the site where the development is to be located
YES
☒
NO
☐
N/A
☐
Comment:
x) the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals
YES
☐
NO
☐
N/A
☒
Comment:
y) any submissions received on the application YES
☐
NO
☐
N/A
☒
Comment:
Za) the comments or submissions received from any authority consulted under clause 66
YES
☐
NO
☐
N/A
☒
Comment:
Zb) any other planning consideration the local government considers appropriate
YES
☐
NO
☐
N/A
☒
Comment:
Councillor Piipponen declared a Financial Interest and a Proximity Interest in item 10.1.4 and left the Chambers at 8.35pm prior to this item being discussed.
10.1.4 – Proposed Deletion and Amendments to Conditions on Approval for the Redevelopment of Oakford Traders Liquor Store, Convenience Store and Fuel Station at Lot 196, 1526 Thomas Road, Oakford. (PA18/1015)
Responsible Officer: Manager Statutory Planning and Compliance
Senior Officer/s: Acting Director Development Services
Disclosure of Officers Interest:
No officer involved in the preparation of this report has an interest to declare in accordance with the provisions of the Local Government Act 1995.
Authority / Discretion
Quasi-Judicial When Council determines an application/matter that directly affect a person’s right and interests. The judicial character arises from the obligation to abide by the principles of natural justice. Examples of quasi-judicial authority include local planning applications, building licences, applications for other permits/licences (eg under Health Act, Dog Act or Local Laws) and other decisions that may be appealable to the State Administrative Tribunal.
Proponent: Rowe Group Owner: Humich Nominees Pty Ltd and Far Super Pty Ltd
Date of Receipt: 22 November 2018
Lot Area: 62.15ha Town Planning Scheme No 2 Zoning: ‘Rural’
Metropolitan Region Scheme Zoning: ‘Rural’
Report Purpose
The purpose of the report is for Council to consider a Responsible Authority Report (RAR) prepared for a development application requesting deletion and amendments to conditions on an existing approval for the redevelopment of Oakford Traders Liquor Store, Convenience Store and Fuel Station at Lot 196, 1526 Thomas Road, Oakford. The proposal seeks to delete condition (r) requiring a monetary contribution toward public art and amend condition (s) to allow for the remnant buildings on the site to be retained.
The attached RAR (attachment 1) prepared by Officers recommends that the amendment of condition (s) be approved and the deletion of condition (r) be refused for the reasons outlined in the report.
Relevant Previous Decisions of Council
OCM064/10/13 – Council recommended that the JDAP refuse the redevelopment of Oakford Traders Liquor Store, Convenience Store, and Service Station due to traffic congestion and safety at the intersection of Thomas Road and Nicholson Road.
4 November 2013 – JDAP approved the redevelopment of Oakford Traders Liquor Store, Convenience Store, and Service Station subject to conditions.
OCM160/09/15 – Council resolved to endorse the Responsible Authority Report which recommended the term of the planning approval for the redevelopment of Oakford Traders Liquor Store, Convenience Store, and Service Station be extended for a period of two years.
On 29 September 2015 JDAP approved the application to extend to the timeframe of the planning approval for the redevelopment of Oakford Traders Liquor Store, Convenience Store, and Service Station for a period of two years.
OCM168/12/17 - Council resolved to endorse the Responsible Authority Report which recommended the term of the planning approval for the redevelopment of Oakford Traders Liquor Store, Convenience Store, and Service Station be extended for a period of two years.
On 9 January 2018 JDAP approved the application to extend to the timeframe of the planning approval for the redevelopment of Oakford Traders Liquor Store, Convenience Store, and Service Station for a period of two years.
OCM097/09/18 – Council resolved to endorse the Responsible Authority Report which recommended approval of alterations to the layout of the Service Station and refusing the “Shop”.
On 6 November 2018, the JDAP approved the application for amendments to the redevelopment of the Oakford Traders Liquor Store, Convenience Store and Fuel Station.
Background
On 4 November 2013, the Metro East JDAP approved a development application for the redevelopment of the Oakford Traders Liquor Store, Convenience Store and Service Station. The approval had 29 conditions including the preparation of a number of technical reports.
In 2015, an application was submitted to the Shire and approved by the JDAP to extend the timeframe for commencement of the approval for a period of two years. A further proposal was submitted to the Shire and determined by the JDAP to extend this timeframe by another two years. This application was approved on 9 January 2018.
Subsequently, on 6 November 2018 the JDAP approved a further development application modifying the site layout and allowing the proposed ‘Service Station’ and ‘Convenience Store’ to operate 24 hours a day, seven days a week. This approval contains several conditions to which the current application relates.
The application was submitted to the Shire on 22 November 2018 as a Development Assessment Panel (DAP) application. The Joint Development Assessment Panel (JDAP) will replace Council as the decision making authority for the application in accordance with the Planning and Development (Development Assessment Panels) Regulations 2011. The proposal is presented to Council as Officers do not have delegated authority to provide a recommendation to the JDAP.
Existing Development
The subject site is located to the east of Nicholson Road at its intersection with Thomas Road. Thomas Road, to the north, is classified as a Primary Regional Road under the Metropolitan Region Scheme (MRS). Nicholson Road is identified as an Other Regional Road under the MRS. In addition to a residential property located to the south west of the site, the land contains an existing business enterprise, Oakford Traders which currently comprises of a convenience store and liquor store. Once the current approval commences operating, these remnant buildings are required to be demolished, enforced by way of a planning condition. The property is surrounded largely by rural paddocks.
Proposed Development
The application seeks approval for the deletion of condition (r) and the amendment to condition (s) on the current development approval. The conditions state as follows:-
“(r) Prior to operation, a contribution of 1% of construction costs shall be paid to Council for the establishment of public art in accordance with Council’s Local Planning Policy 1.6 – Public Art, to the satisfaction of the Shire of Serpentine Jarrahdale.”
“(s) That any remnant buildings on the site, not shown on the approved plans, must be removed and made good to the satisfaction of the Shire of Serpentine Jarrahdale.”
The application details are contained within attachment 2 of the report. Community / Stakeholder Consultation
The subject application has not been advertised. The subject application is made under Clause 17A of the Planning and Development (Development Assessment Panels) Regulations 2011 (DAP Regulations). Clause 17A (1) states:-
“……the provisions of the Act, the Planning and Development (Local Planning Schemes) Regulations 2015, the Planning and Development Regulations 2009 and the relevant planning instrument apply to the making and determination of, and the review of a decision on, an application as if the development approval – (a) Had not been granted pursuant to a DAP application; and (b) Had been granted by the responsible authority”.
As such, Clause 77 of the Deemed Provisions, which form part of the Shire’s Town Planning Scheme, applies to the subject application. This clause relates to applications that seek approval to amend existing approval. Clause 77 allows for a Local Government to waive any of the requirements in Part 8 (the procedure for determining a new development application), such as advertising.
In this case, it is considered that the deletion and amendment of the conditions would not fundamentally alter the approved development and therefore this element of the process was waived. In addition, there were no submission made as part of the referral process for the approved development application.
Statutory Environment
Legislation
Planning and Development Act 2005;
Planning and Development (Development Assessment Panels) Regulations 2011 (Deemed Provisions)
Planning and Development (Local Planning Schemes) Regulations 2015
Metropolitan Region Scheme
Shire of Serpentine-Jarrahdale Town Planning Scheme No. 2 State Government Policies
State Planning Policy 2.5 Rural Planning (SPP2.5) Local Policies
Shire of Serpentine Jarrahdale Rural Strategy Review 2013
Local Planning Policy - Public Art (LPP1.6) Planning Assessment
Planning and Development (Development Assessment Panels) Regulations 2011 (DAP Regulations)
Regulation 17 of the DAP Regulations allows for landowners to do any or all of the following with regard to an approved development application:
“(a) to amend the approval so as to extend the period within which any development approved must be substantially commenced;
(b) to amend or delete any conditions to which the approval is subject;
(c) to amend an aspect of the development approved which . if amended, would not substantially change the development approved;
(d) to cancel the application”. With respect to this Regulation, the applicant seeks approval in accordance with (b) to delete condition (r) and amend condition (s) of the approval.
A comprehensive assessment has been undertaken in accordance with clause 67 of the Planning and Development (Local Planning Schemes) Regulations 2015, this technical assessment can be viewed as part of attachment 3. For the purposes of this report, matters in relation to the conditions will be discussed.
Conditions
In 2016, the Western Australian Court of Appeal unanimously allowed an appeal against the decisions of the Supreme Court and State Administrative Tribunal (SAT) to uphold certain subdivision conditions. Although the particulars of this case are not relevant in this instance, the case emphasises the three elements used to legally test planning conditions and their validity.
A condition of planning approval will not be valid unless it can comply with the following three tests summarised as planning purpose, nexus and reasonableness:-
1. The condition is for a planning purpose that implements a planning policy through planning legislation;
2. The condition reasonably and fairly relates to the development permitted; and
3. The condition is not so unreasonable that no reasonable planning authority could have imposed it.
In considering the proposal for the amendment and deletion of the conditions, these tests have been applied.
Condition R
As previously stated, condition (r) states as follows:-
“Prior to operation, a contribution of 1% of construction costs shall be paid to Council for the establishment of public art in accordance with Council’s Local Planning Policy 1.6 – Public Art, to the satisfaction of the Shire of Serpentine Jarrahdale.”
The applicant has argued as part of the application that this condition does not serve a planning purpose and refers to a recent SAT determination of BGC (Australia) Pty Ltd and the Presiding Member of the Metropolitan East Joint Development Assessment Panel (DR 87 of 2018). In this case, the SAT held that the Policy requiring a public art contribution did not demonstrate a connection between the development and the need for the required public art. It simply relied on an arbitrary construction value as the basis of requiring public art rather than identifying a particular need generated by the form of the development.
In the decision, the SAT determined that where there was no adverse visual amenity impact caused by the development, it was inappropriate to apply a condition requiring the provision of public art. The applicant considers in this instance that the existing and proposed development does not adversely impact on the amenity of the area and therefore public art is not required.
Planning Purpose
Local Planning Policy 1.6 - Public Art Policy for Major Developments (LPP1.6) sets out the requirements for physical and financial contributions for public art as part of applications within the Shire with a development value greater than $1 million. Generally, this requirement is imposed by way of a condition on a development approval.
The objectives of this policy are to:-
“Create artworks in public spaces that are site specific, meaningful and integrated into built and natural forms within the Shire;
Enhance public enjoyment, engagement and understanding of places through the integration of public art, thereby enhancing sense of place;
Enhance the appearance, character and value of buildings and places through the inclusion of high quality public art; and
Establish a clear and equitable system for the provision of public art in the development process.”
This case significantly differs from the recent SAT decision in that the area is zoned ‘Rural’ and not industrial. Although the site is located adjacent to Thomas Road, which accommodates a large number of vehicles, the area has retained its rural character. It is acknowledged that in an industrial area, industrial style buildings would be commonplace and the visual appearance of these buildings would be consistent with the zone.
In this case, Officers consider the facts are different to the recent SAT case.
The approved development comprises of commercial buildings that although do not unduly impact on the rural character, they are not rural in nature and do have an impact on the visual amenity of the area. It is considered that the construction of public art would be to the benefit of the local community and passers-by to “enhance the appearance, character and value of buildings and places through the inclusion of high quality public art”, in accordance with the policy objectives.
Furthermore, the subject site is located in a prominent position and will be visible from neighbouring properties, customers and passers-by. The benefit of the public art would be to a much larger and wider range of members of the local community, visitors to the area and passers-by. The benefit of public art would not just be for the employees of the site, and visitors associated with the business as with the SAT case.
In addition, the Shire’s Rural Strategy Review 2013 states the purpose of the ‘Rural’ policy area is to “maintain the integrity of the Shire’s rural and agricultural character”. Although commercial development can be considered in the ‘Rural’ zone, it is imperative that the rural character of the area is maintained, in accordance with the Strategy.
Officers consider that there is a planning purpose to the condition as the public art would enhance the rural character of the area and would offset the impact of commercial buildings in a rural setting.
The condition is implemented through Local Planning Policy and further supported by the Rural Strategy.
Relationship with the Development:
It is considered that the condition is reasonable and fairly relates to the development. The approval relates to commercial development in a rural area. The contribution or provision of public art is considered reasonable, as it would contribute towards the amenity and rural character of the area for the reasons stated previously. There is a clear nexus between the approved development and the requirement for a public art contribution.
Reasonableness:
For the reasons previously stated, the condition is considered reasonable and it is common practice for Local Governments to seek a contribution towards public art. The Local Planning Policy has been adopted in accordance with the Planning and Development (Local Planning Schemes) Regulations 2015 and it is reasonable for a Local Government to enforce the policy in
this instance.
Condition S
“(s) That any remnant buildings on the site, not shown on the approved plans, must be removed and made good to the satisfaction of the Shire of Serpentine Jarrahdale.”
It is proposed to delete this condition to allow for the existing buildings on the site to remain. The applicant sets out that the subject site contains a number of buildings, the ones associated with the existing Oakford Traders development and an existing dwelling with associated buildings. The applicant accepts that the use of the buildings for the existing Oakford Traders will cease however does not consider that this requires for the built form to be demolished. It is the applicants intention to submit a further development application to secure a suitable use for these buildings in the future.
The applicant proposes to delete the current condition and replace it as follows:-
“The land use activities of the liquor store and service station in the existing structure on the land are to cease upon these activities becoming operational in the new structures that will be constructed as part of the implementation of this approval”.
The approved development was assessed on the basis that the new buildings would replace the existing ones and therefore to be able to determine whether Officers support the removal of the condition it is required to assess the impact of the existing built form remaining in addition to the approved buildings. As such, the following policy documents are considered relevant:-
TPS2
Clause 5.10.1 of TPS2 states “the purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area”.
The existing building is of a commercial design and is unlikely to be used in the future for a ‘rural pursuit’. It is however, acknowledged that land uses other than those considered a ‘rural pursuit’ can be considered in the ‘Rural’ zone under Table 1 – Zoning Table of TPS2. Once the use of the existing building ceases, any further uses, unless exempt under TPS2, will require a development application to be submitted to and approved by the Shire. At this stage, the proposed use will be assessed against the objective of the ‘Rural’ zone.
Rural Strategy Review 2013 (Strategy)
The subject site is designated as ‘Rural’ under the Strategy. The purpose of the ‘Rural’ policy area under the strategy is to “maintain the integrity of the Shire’s rural and agricultural character”.
The approved development was considered acceptable in accordance with the Strategy and this was also accepted by the JDAP.
Officers agree with the applicant, that the existing buildings are of an older form of architecture reminiscent of a roadhouse development. Due to the siting, scale and visual appearance of these buildings, Officers consider that retention of the buildings would not adversely impact on the rural character of the area.
Officers however consider that as well as the use ceasing, the condition should also require for the existing crossovers to be removed and any signage on the existing buildings to be removed. This would reduce the appearance of the building as an additional commercial building until such a time as when a further development application for the use of the building is received and approved.
As stated by the applicant, there is an existing dwelling located on the site with associated structures. Officers consider that the intent of the condition was not for these to be required to demolished and therefore Officers have no objections to these buildings remaining.
It is therefore considered that the condition is reworded as follows:
“Upon commencement of operation of the development hereby approved, the land use of the existing liquor store and convenience store shall cease and all signage removed. The existing crossovers shall be removed and the verge reinstated to the satisfaction of the Shire of Serpentine Jarrahdale and Main Roads Western Australia”.
Options and Implications
Option 1:
That Council endorse the Responsible Authority Report contained within the attachments, which recommends that the Metropolitan East Joint Development Assessment Panel approve the application for the proposed amendments by approving the amendment to condition (s) and refusing the deletion of condition (r) of the existing approval at Lot 196, 1526 Thomas Road, Oakford, subject to conditions.
Option 2:
That Council does not endorse the Responsible Authority Report contained within the attachments, which recommends that the Metropolitan East Joint Development Assessment Panel approve the application for the proposed amendments by approving the amendment to condition (s) and refusing the deletion of condition (r) of the existing approval at Lot 196, 1526 Thomas Road, Oakford, subject to conditions.
Option 3:
That Council endorse the Responsible Authority Report contained within the attachments, with modifications as provided by Council.
Option 1 is recommended.
Conclusion
The application seeks approval for the removal of a planning condition requiring a contribution towards public art. Approval is also sought to amend the condition requiring for all remnant buildings on the site to be demolished once the new development commences operation.
Officers have no objections to the retention of the existing buildings subject to all signage being removed for the reasons set out in the report. Officers do not consider that the deletion of the condition requiring a contribution towards public art should be approved to preserve the rural character of the area.
Risk has been assessed on the basis of the Officer’s Recommendation.
Risk
Risk Likelihood (based on history and with existing controls)
Risk Impact / Consequence
Risk Rating (Prior to Treatment or Control)
Principal Risk Theme
Risk Action Plan (Controls or Treatment proposed)
Council not endorsing the RAR
Unlikely (2) Minor (2) Low (1-4) Financial Impact - 1 Insignificant - Less than $50,000
Accept Officer Recommendation
Risk Matrix
A risk rating of 4 has been determined for this item.
Any items with a risk rating over 10 (considered to be high or extreme risk) will be added to the Risk Register, and any item with a risk rating over 17 will require a specific risk treatment plan to be developed.
Voting Requirements: Simple Majority OCM008/02/19
COUNCIL RESOLUTION / Officer Recommendation: Moved Cr Byas, seconded Cr Gossage 1. That Council ENDORSES the Responsible Authority Report contained within
attachment 1 which recommends that the Metropolitan East Joint Development Assessment Panel approve amendments to DAP Application PA18/542 by approving amendments to condition (s) and refusing the deletion of condition (r) in relation to the approved ‘Service Station’, ‘Convenience Store’ and Liquor Store (Use Not Listed) at Lot 196, 1526 Thomas Road, Oakford, subject to the following conditions:-
a. The development is to be carried out in compliance with the plans and
documentation listed below and endorsed with the Shire of Serpentine Jarrahdale stamp, except where amended by other conditions of this consent.
Plans and Specifications
P1-P5 received at the Shire’s Offices on the 10 September 2018
b. The easternmost access shall be designed to incorporate a left turning pocket and
shall comply with Main Roads WA specifications for the relevant design speed.
c. All heavy vehicles shall enter and exit the site via the easternmost crossover only and this access arrangement shall have adequate signage to this effect.
d. Modified crossovers and the verge shall be made good at the applicants cost and to the Shire of Serpentine Jarrahdale's standards.
e. All truck parking shall be located to the rear of the site to overcome any potential conflicts with entering and exiting traffic.
f. The internal road network within the development site shall be designed to have an internal turn around facility or area that enables heavy vehicles to turn around and exit the easternmost crossover in forward gear. This shall be designed for a minimum design vehicle of a 27.5 metre B Double.
g. The developer shall be responsible for all costs involved in the land acquisition (if required), design and construction of the left turning deceleration lane for the easternmost access. This includes signing, road markings, relocation of services, street lighting and Main Roads costs involved in the checking of the design and constructions drawings and any site inspections required.
h. Any services, infrastructure or roadside furniture that requires relocation as a result of the applicant's works will be at the applicant's cost.
i. No earthworks, unless otherwise approved, shall encroach onto the Thomas Road road reserve.
j. Any land required for the access arrangements shall be ceded at no cost to Main Roads WA for road dedication purposes for inclusion into the Thomas Road road reserve.
k. Prior to commencement of any site works, a Dust Management Plan is to be submitted to and approved by the Shire of Serpentine Jarrahdale in accordance with the Department of Environment and Conservation "Guidelines for the prevention of dust and smoke pollution from land development sites in Western Australia". The approved Dust Management Plan shall be implemented thereafter.
l. Prior to commencement of works, an Urban Water Management Plan shall be submitted to and approved by the Shire of Serpentine Jarrahdale. Once approved, the Urban Water Management Plan is to be implemented in its entirety.
m. All storm water shall be disposed of within the property. Direct disposal of storm water onto the road, neighbouring properties, watercourses and drainage lines is not permitted.
n. Prior to commencement of works, a Lighting Plan shall be submitted to and approved by the Shire of Serpentine Jarrahdale. The Lighting Plan shall demonstrate the provision of lighting to all access ways, car parking areas, the exterior entrances to all buildings and the extent to which light from all external light sources is cast. Once approved, the lighting plan shall thereafter be implemented in its entirety.
o. Prior to commencement of works, a Waste Storage and Removal Plan shall be submitted to and approved by the Shire of Serpentine Jarrahdale. Once approved, the Waste Storage and Removal Plan shall be implemented in its entirety.
p. Prior to the commencement of works, a Signage Strategy detailing location, size and height of signage for the whole development, including wall signs, window signs, under verandah signs and fascia signs, shall be submitted to and approved by the Shire of Serpentine Jarrahdale.
q. Prior to commencement of works, a Landscape and Vegetation Management Plan, including all car parking areas, access roads, road verges and areas of open space, shall be submitted to and approved by the Shire of Serpentine Jarrahdale. The approved plan shall thereafter be implemented and maintained in its entirety.
r. Prior to operation, an agreed monetary contribution shall be paid to Council for the establishment of public art in accordance with Council's Local Planning Policy 1.6 - Public Art, to the satisfaction of the Shire of Serpentine Jarrahdale.
s. Upon commencement of operation of the development hereby approved, the land use of the existing liquor store and convenience store shall cease and all signage removed. The existing crossovers shall be removed and the verge reinstated to the satisfaction of the Shire of Serpentine Jarrahdale and Main Roads Western Australia.
t. Approval for 24 hour operation only applies to the fuel station and associated convenience store.
Advice notes
(a) In respect to Condition (j), Application Kits can be found on the Main Roads website>"Our Roads">"Conducting Works on Roads>" Applications to Undertake Works on State Roads"> Application Kit and Guidelines for Complex Works OR Application Form for Low Complexity Works.
(b) With regard to conditions (c) and (f), a swept path analysis shall be submitted to the Shire of Serpentine Jarrahdale to demonstrate the ability for the most restrictive movement vehicle to enter and exit the site.
(c) The intersection of Thomas Road and Nicholson Road is recognised as a dangerous black spot and has received funding from the Road Trauma Fund to undertake preliminary planning design concepts. Currently the traffic modelling depicts the preferred intersection at this location as a roundabout treatment, for both interim and ultimate stages
(d) The project for the upgrading/widening of Thomas Road and Nicholson Road is not in Main Roads current 4-year forward estimated construction program and all projects not listed are considered long term.
(e) Please be aware the timing information for the construction of the preferred treatment (both interim and ultimate stages) is subject to change and Main Roads assumes no liability for the information provided.
(f) The developer is required to obtain a ‘Works by Others' approval to undertake such modifications to the road network. A "Works by Others" approval is subject to a 100% design review prior to any consideration to modify a Main Roads asset or road network.
Reasons for refusal
(a) The deletion of Condition (r) is contrary to Local Planning Policy 1.6 – Public Art.
(b) The deletion of Condition (r) would result in an adverse impact on the visual amenity and rural character of the area, contrary to the Shire of Serpentine Jarrahdale Rural Strategy Review 2013.