metro east joint development assessment panel agenda€¦ · shire of serpentine-jarrahdale town...

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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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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

Ltd Responsible Authority: Shire of Serpentine Jarrahdale DAP File No: DP/13/00615

https://www.dplh.wa.gov.au/about/development-assessment-panels/daps-agendas-and-minutes

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10. Appeals to the State Administrative Tribunal

Current Applications

LG Name Property Location Application Description

City of Gosnells

7 (Lot 10) Kelvin Road, 1910 (Lot 6) and 1914 (Lot 12) Albany Highway, Maddington

Motor Vehicle Sales and Motor Vehicle Repair

City of Gosnells

Lot 3 Southern River Road, Southern River

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.

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:

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 Strategy Policy: Rural Strategy Review 2013

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

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.

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

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.

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:-

“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

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:-

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”.

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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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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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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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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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

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.

8403_18Nov03L_gh

Attachment One

Copy of the Certificate of Title

8403_18Nov03L_gh

Attachment Two

Copy of the Development Plan

8403_18Nov03L_gh

Attachment Three

A copy of the Signed and Completed DAP Form 2

8403_18Nov03L_gh

Attachment Four

A copy of DAP Approval DAP/13/00615 dated 8 November 2013

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

[email protected] www.dplh.wa.gov.au ABN 68 565 723 484

mailto:[email protected]

Encl. DAP Determination Notice Approved Plans

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

[email protected] www.dplh.wa.gov.au ABN 68 565 723 484

mailto:[email protected]

Planning and Development Act 2005

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.


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.

Page 2 of 4

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.

Page 3 of 4

(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.

Page 4 of 4

Scale: Project Number:Drawing Number:Revision:Date:© Hames Sharley:

Status:Path:

North:

C24/07/2018

DEVELOPMENT AMENDMENT

OAKFORD TRADERS REDEVELOPMENT43613A007

SITE ELEVATIONS 1:200

GROUND LEVELFL 0.0

TOP OF PARAPETRL 5.0

RL 5.0

RL 3.0

RL 4.5

NORTH INTERNAL ELEVATION2

RL 4.0

TRUCK FUEL CANOPYCANOPY WITH TIMBER

LOOK SOFFIT

BEIGE PAINT CONCRETE WALL WITH TIMBER LOOK

CLADING

FULL HEIGHT GLAZING TO SHOPFRONT

TIMBER LOOK FEATURE SIGNAGE WALL

LIQUOR STOREDRIVE THRU

RL 6.1

RL 3.6

2.1m HIGH BORDER FENCE

OUTDOOR SEATING AREA

SERVICE STATION LIQUOR STOREDRIVE-WAY PARKING

GROUND LEVELFL 0.0


RL 4.5

SOUTH ELEVATION3

BEIGE PAINT CONCRETE WALL WITH TIMBER LOOK

CLADDING

OUTDOOR SEATING AREA

SERVICE STATION LOADING DOOR

DRIVE THRU

RL 6.1RL 7.0

LIQUOR STAORE DRIVE-THROUGH ROLLER SHUTTER

BEIGE PAINT CONCRETE WALL

METAL DECK ROOF


TRUCK FUEL CANOPYRETAIL FUEL

CANOPY BEYOND SIGNAGE PYLON

RL 3.6

SERVICE STATIONLIQUOR STORE DRIVE-WAYDRIVE-WAY

CONDENSER COMPOUND

RL 6.7

NORTH ELEVATION1

GROUND LEVELFL 0.0


RL 6.1RL 7.0

SERVICE STATION BEYOND

SERVICE STATION DRIVE THRU

LIQUOR STAORE DRIVE-THRU ROLLER SHUTTER

LIQUOR STAORE CUSTOMER ENTRY

RL 4.5RL 5.0

RL 3.6 RL 2.7

CANOPY OVERRETAIL FUEL CANOPYTRUCK FUEL CANOPYMETAL DECK

ROOFBEIGE PAINT

CONCERET WALL


SERVICE STATION LIQUOR STOREDRIVE-WAY PARKING

RL 6.8


Status:Path:

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DEVELOPMENT AMENDMENT

OAKFORD TRADERS REDEVELOPMENT43613A008

SITE ELEVATIONS 1:200

WEST ELEVATION6

RL 6.3

WEST INTERNAL ELEVATION7

EAST ELEVATION4

GROUND LEVELFL 0.0

GROUND LEVELFL 0.0

GROUND LEVELFL 0.0

GROUND LEVELFL 0.0





TRUCK FUEL CANOPYCANOPY WITH TIMBER

LOOK SOFFITTIMBER LOOK WALL

CLADDING RETAIL FUEL CANOPYLIQUOR STORE

BEYOND2.1m HIGH

BORDER FENCE

SIGNAGE PYLON

SIGNAGE PYLON

SIGNAGE PYLON

SIGNAGE PYLON




METAL DECK ROOF


FEATURE FRAMING ELEMENT

EXISTING LIQUOR STORE

RL 4.5

RL 7.0

RL 7.0


INDICSTIVE SIGNAGE ZONES

CONDENSER COMPOUND

DRIVE TRUBEIGE PAINT CONCRETE WALL WITH TIMEBR LOOK CLADDING

RL 4.5

RL 4.5

RETAIL FUEL CANOPY BEYOND

RETAIL FUEL CANOPY BEYOND

TRUCK FUEL CANOPY BEYOND

TRUCK FUEL CANOPY BEYOND


RL 6.1

OUTDOOR SEATING AREA BEYOND


SERVICE STATION

LIQUOR STORE

LIQUOR STORE

SERVICE STATION

DRIVE-WAY

DRIVE-WAY

TRUCK PARKING

TRUCK PARKING

DRIVE-WAY

DRIVE-WAY

DRIVE-WAY

DRIVE-WAY

TRUCK PARKING PARKING

PARKING

PARKING

PARKING

THOMAS ROAD

ROAD

THOMAS ROAD

THOMAS ROAD

VERGE

VERGE

VERGE

VERGE

BOUN

DARY

BOUN

DARY

BOUN

DARY

BOUN

DARY

EAST INTERNAL ELEVATION5

SIGNAGE PYLON

SIGNAGE PYLON

RL 6.7


Status:Path:

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OAKFORD TRADERS REDEVELOPMENT E10/09/2018

43613A003

MASTERPLAN 1:1000


Status:Path:


OAKFORD TRADERS REDEVELOPMENT F10/09/2018

T H O M A S R O A D

LANDSCAPING RL22.48

RL 22.5

900800

900

PYLON SIGN

AIR & WATER

99874

145932

60331

12

29

41

52

56

LX8H

PULSE

LX8H

PULSE

LX8H

PULSE

LX8H

PULSE

LX8H

PULSE

LX8H

PULSE

93719 136206

112896

69

71

196


Status:Path:

North:\\hames.com.au\deploy\CADResources\_ACAD\2015\Template\HSWordmark-VLarge.jpgOAKFORD VILLAGE

GROUND FLOOR PLANDA007B

1:500 43613

10/9/2018

DEVELOPMENT APPLICATION

LIQUORSTORE

BOUNDARY

BOU

ND

ARY

BOUNDARY

RETAIL FUEL

FILL

PO

INT

TREES DEMOLISHED

TREES NEW

TREES EXISTING

FL 23.1

D/T

D/T

2.1m

HIG

H F

ENC

E

2.1m HIGH FENCE

2.1m

HIG

H F

ENC

E

AREA SCHEDULE (GROSS BUILDING)NAME AREA

RETAIL REFUELING 418m2

TRUCK REFUELING 242m2

SERVICE STATION 378m2

SERVICE STATION DRIVE THRU 21m2

LIQUOR STORE 287m2

LIQUOR STORE DRIVE THRU 211m2

TOTAL 1,557m2

NEW ENTRY/EXIT

SERVICESTATION

FL 23.25

PARKINGRATIO

1:20

1:20

PARKINGREQUIRED

19

15

34

2.1m

HIG

H F

ENC

E

TRUCK FUEL

PARKINGPROVIDED

71

NEW EXIT

EXISTING CROSSOVERCLOSEDEXISTING CROSSOVER

CLOSED

NEW SLIP LANE

43613A004

SITE PLAN 1:500

PROPOSED DEVELOPMENT


Status:Path:


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43613A005

GROUND FLOOR PLAN - SERVICE STATION 1:100

AL-FRESCO

RETAIL SHOP

UNISEX

900800

OILY WATERSEPARATOR

UN

ISEX

900

378 m2

1000 24021 2120

1525

0

4910

4214

6127

27141

CANOPY OVER

CANOPY OVER

LX8H

PULSE

LX8H

PULSE

LX8H

PULSE

LX8H

PULSE

LX8H

PULSE

LX8H

PULSE

FL 23.1

RL 22.75

RL 23.0

FILL

PO

INT

CAN

OPY

OVE

R

CANOPY OVER


Status:Path:

North:\\hames.com.au\deploy\CADResources\_ACAD\2015\Template\HSWordmark-VLarge.jpgOXFORD VILLAGE

GROUND FLOOR PLANDA007A

1:100 43613

15/5/2018

DEVELOPMENT APPLICATION

BOLLARD


Status:Path:


OAKFORD TRADERS REDEVELOPMENT G19/11/2018

43613A003

MASTERPLAN 1:1000

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;


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:-


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;


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:-


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.

Attachments

Attachment 1 – Responsible Authority Report (E19/956)

Attachment 2 – Application Details (IN18/26851)

Attachment 3 – Technical Assessment (E19/958)

Alignment with our Strategic Community Plan

Outcome 3.1 A commercially diverse and prosperous economy

Strategy 3.1.1 Actively support new and existing local business within the district.

Financial Implications

Nil

http://www.sjshire.wa.gov.au/assets/Uploads/OCM/OCM-2019/OCM-18-February-2019/10.1.4.1.PDF



Risk Implications

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.


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.

CARRIED UNANIMOUSLY 8/0

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