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This Wednesday (1 June) Fremantle Council will reinforce their approval for a  21 year lease for alcohol and loud music at Arthur Head's J Shed at the 6pm planning meeting.

The fact that it is a shocking, shabby, and totally inappropriate use of the State's most historic landscape will not concern any councillor, as none to date has taken much notice of the large number of community complaints about it.

No matter that there are already licensed premises for 1000 people just 200 metres away at the refurbished Fishermen's Co-Op, Council will plough ahead with its alcohol 'activation' plan for this historic area.

Anyone who spends five minutes reading any of the $1 million worth of research commissioned into the importance of Arthur Head, will conclude that what the council is doing is immature, damaging, and unbelievable.

Anyone who reads the 2007 Archaeological Conservation Plan for the area will see that the emphasis for this area is supposed to be history, history, and history.

Council's own documents state that the area is of 'exceptional significance' and that the area should be presented: "in an iconic way as an archaeological heritage tourism site."

Instead we will get loud noise and litter.

Council will say that the State Heritage Office approves the damage, but we know that the State Heritage Office, is but a thin shadow of its former self, and their own website detailing the heritage listing of Arthur Head only discusses the Round House and omits altogether the rest of Arthur Head! 

Members- please take an interest in this issue and DO something. The councillors' email address is:                                

members @fremantle.wa.gov.au

Below is the endless waffle from the officers' report trying to justify the unjustifiable, instead of spending their time and our money following existing policies for the area and enhancing the values of the historic precinct:


REPORTS BY OFFICERS (COMMITTEE DELEGATION) The following items are subject to clause 1.1 and 2.1 of the City of Fremantle Delegated Authority Register 
PC1606 -1 FLEET STREET, J-SHED UNIT 1 (LOT 2051), FREMANTLE - PARTIAL CHANGE OF USE TO TAVERN (INCLUDING LIVE MUSIC), ADDITIONS AND ALTERATIONS TO EXISTING BUILDING - (AD DA0370/15)   
DataWorks Reference: 059/002 Disclosure of Interest: Nil Meeting Date: 1 June 2016 Responsible Officer:  Manager Development Approvals Actioning Officer: Senior Planning Officer Decision Making Level: Planning Committee (recommendation/referral only to WAPC) Previous Item Number/s: Nil Attachment 1: Development Plans (DA0370/15) – (as amended) Attachment 2: Accompanying information from original lodgement Attachment 3:  Schedule of Submissions (2016) Attachment 4: City’s Heritage Comments Attachment 5: Site photos Date Received: 5 August 2015 1 April 2016 (amended plans) Owner Name: City of Fremantle Submitted by: Sunset Events, CODA Metropolitan Region Scheme: Parks and Recreation Reserve Local Planning Scheme: Not zoned under City’s Local Planning Scheme No. 4 Heritage Listing: Yes, MHI management category level 1A; Inner Harbour Heritage Area, Arthur Head Precinct Heritage Area, WECA Heritage Area, Victoria Quay Heritage Area Existing Landuse: Special Events Venue (temporary approval) Use Class: Tavern Use Permissibility: N/A 
  Agenda - Planning Committee  1 June 2016
Page 2  
EXECUTIVE SUMMARY
The application is presented to Council due to the nature of the development and the number of submissions received that cannot be addressed through the imposition of planning approval conditions to the satisfaction of objectors.. 
The applicant is seeking planning approval for a partial change of use to tavern (including live music) , additions and alterations to existing building at J-Shed Unit 1 (Lot 2051) Fleet Street, Fremantle. 
As the proposal is contained within land reserved under the Metropolitan Region Scheme (MRS) as ‘Parks and Recreation’, the City acts only in the capacity as a referral body providing a recommendation to the determining authority, being the Western Australian Planning Commission (WAPC). 
As the proposal relates to reserved land under the MRS, the provisions of the City’s Local Planning Scheme No. 4 (LPS4) and Council’s Local Planning Policies (LPP’s) do not apply, but have been used as a guide in assisting Council in formulating its position for its recommendation to the WAPC. 
The proposal is considered to be generally consistent with the provisions of Council’s LPP’s, however it is probable that some amenity impacts may result to the immediate locality, including car parking and noise. 
The proposal is considered to warrant a recommendation for conditional approval to the WAPC for their determination. 
BACKGROUND
In November 2012 Council resolved to seek “the front glass-walled studio of J-Shed to be put out for lease through a competitive process as a bar/café/gallery as a major attractor for the whole area. This should include space for artists in Arthur Head precinct to be able to exhibit their work on a priority basis. At other time the gallery space would be for rent like the Moores building.” 
  Agenda - Planning Committee  1 June 2016
Page 3
An expression of interest process was undertaken in early 2013 in which Sunset Events was selected as the preferred interest. The City has since undertaken negotiations for a lease with Sunset Events for a term of 21 years for Unit 1 and a portion of the surrounds to J Shed. 
At the ordinary meeting in November 2013 Council considered a report providing the essential terms of the negotiations and resolved the following;  
“The proposed lease for Unit 1 J-Shed between the City of Fremantle and Sunset Events be deferred to the December, 2013, Strategic and General Services Committee to consider the advertising of a business plan in accordance with section 3.59 of the Local Government Act 1995 outlining the commercial terms of the lease so that the community has greater opportunity to make comment prior to the lease being finalised.” 
An item to Strategic and General Services Committee sought approval for a consultation plan for the proposed lease between the City of Fremantle and Sunset Events. The following resolution adopted; 
“The Strategic and General Services Committee, acting under delegation item 1.1, approve the Consultation Plan for the proposed lease to Sunset Events for Unit 1 JShed, Fleet Street, Fremantle, to be advertised for a period of six weeks.” 
The City advertised the consultation plan regarding the proposal to enter into a land transaction through disposal of Unit 1 J Shed Fleet Street, Fremantle in the form of a Lease. The plan outlined the proposal from Sunset Events and the essential terms and conditions of the lease negotiations. 
Prior to Strategic and General Services Committees resolution the City invited stakeholders to an information session in November 2013. Further to this a public information session was also held on Tuesday 14 January 2014 outlining the proposal to interested persons. 
An outline of the proposal was advertised in the West Australian, Fremantle Herald, Fremantle Gazette and social media directing those wanting to comment to the City’s website which enabled them to view the detailed consultation plan. 
At its meeting of 26 February 2014, the Strategic and General Services Committee resolved to conditionally grant the lease to Sunset Events for Unit 1 of J-Shed. 
On the 15 May 2015, the Minister for Lands granted approval for the lease. 
The site is reserved for the purposes of Parks and Recreation under the Metropolitan Region Scheme (MRS). The site is not zoned or reserved under the City’s Local Planning Scheme No. 4 (LPS4).  
The site is listed on the City’s Heritage List and the City’s Municipal Heritage Inventory (MHI) as a management category level 1A (State Heritage Register) as well as for precinct management. Furthermore, the site is located within the Inner Harbour Heritage Area, Arthur Head Precinct Heritage Area, WECA Heritage Area, Victoria Quay Heritage Area, which are prescribed Heritage Areas under Clause 7.2 of LPS4. 
  Agenda - Planning Committee  1 June 2016
Page 4
The subject site is 37,463m2 and is located on southern side of Fleet Street and to the west of the freight rail. The site has a predominantly north-south orientation. 
The City of Fremantle considered an application for planning approval for Temporary Approval - Special event venue (live music venue) at J Shed Unit 1/Fleet Street (Lot 2051), Fremantle (refer DA0373/15). This represented what was effectively a ‘trial’ period for the permanent tavern use that is being considered by this proposal. At its Ordinary Council Meeting (OCM) held on 14 October 2015 the application was considered, whereby it was resolved: 
“That the application be REFERRED to the Western Australian Planning Commission with a recommendation for APPROVAL under the Metropolitan Region Scheme for the proposed Temporary Approval - Special event venue (live music venue) at J Shed Unit 1/Fleet Street (Lot 2051), Fremantle, subject to the following conditions: 
1.  This approval relates only to the development as indicated on the approved plans, dated 31 July 2015. It does not relate to any other development on this lot. 
2.  This approval permits the use of the site as a special event venue (live music venue), and is valid until 31 May 2017 (inclusive). 
3. The special event venue shall be limited to the following types of activities:   Weddings;   Art exhibitions and functions;   Gala Dinners;   Awards Nights;   Music Events;   Conferences;   Brand Activations;   Fashion Events;   Product Launches;   Corporate Functions;   Corporate Christmas parties;   Social & Celebratory events - Birthday and anniversaries; and any other type of similar activity to those prescribed above, as deemed appropriate by, and to the satisfaction of the Western Australian Planning Commission, upon the advice from the Chief Executive Officer, City of Fremantle. 
4. Events are to be held between 1 November and 30 May (inclusive) of each year, up until 31 May 2017 and are to consist of: 
i. Up to 12 music concerts per year, to be held on any day of the week, which are to commence at no earlier than 12:00pm (midday) and conclude no later than 10:00pm that same day with a maximum number of 1000 patrons at any one time; and 
  Agenda - Planning Committee  1 June 2016
Page 5
ii. All other uses are limited to weekends and public holidays and are to commence at no earlier than 12:00pm (midday) and conclude no later than 10:00pm that same day with a maximum number of 400 patrons at any one time; 
5. Prior to commencement of the use of the site, the applicant is to submit and have approved by, the Chief Executive Officer, City of Fremantle, an access management plan which addresses how event patrons, goods and materials, as required for events, will be transported to and from the site, in the event that access cannot be obtained via Fleet Street.  
6. A watching brief is to be undertaken by a qualified archaeologist during all works south of the line of the 1830's cliff, to the satisfaction of the Western Australian Planning Commission, upon advice from the State Heritage Office.  
7. Patron access shall be limited to the Southern portion of the license area via Bather Beach or the Whalers Tunnel and there shall be no patron access fronting the land known as Fleet Street  
8.  Any alcohol advertising or promotion is not to include naming rights or prominent alcohol name brand sponsorship  
9. Brand or corporate advertising or promotion, including banners, flags, and umbrellas etc. is not permitted to be overtly visible from the Bathers Beach and Arthur Head reserve area 
Advice Notes: 
i. The proponent must make application to establish the food business – tavern – so that the premises comply with the Food Act, Rood Regulations and the Food Safety Standards incorporating AS4674-2004 Design, construction and fit-out of food premises. Submit detailed architectural plans and elevations to the City’s Environmental Health Services for approval prior to construction. The food business is required to be registered under the Food Act 2008. For enquiries and a copy of the application form contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856.  
ii. The proponent must make application during the Building License application stage to the City’s Environmental Health Services via Form 1 - Application to construct, alter or extend a public building as a requirement of the Health (Public Buildings) Regulations 1992. If the proponent is granted approval to commence development the proponent must immediately make application to the City for a Regulation 18 noise notice under the Environmental Protection (Noise) Regulations 1992. For enquiries and a copy of the application forms contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856.  
  Agenda - Planning Committee  1 June 2016
Page 6
iii. The applicant is advised to contact the Department of Aboriginal Affairs (DAA) on (08) 6551 8092 to discuss any statutory requirements that may be required to be undertaken and/or fulfilled by them under the Aboriginal Heritage Act 1972. This may include advising the South West Land and Sea Council of the proposed works, of which should be confirmed with the DAA.  
iv. The DAA has advised the City to advise the applicant that they have released the Aboriginal Heritage Due Diligence Guidelines to assist developers with planning and considering Aboriginal heritage during proposed works. A copy of the guidelines can be found on the DAA website as:  
v.  http://www.daa.wa.gov.au/globalassets/pdf-files/ddg   
vi. The applicant is advised that the Department of Environment Regulation (DER) has recommended that management of ground disturbing works at the site include contingency measures for unexpected unearthing of asbestos or contamination, to eliminate any potential health risks to workers or the public. In the event that the development activities detect or unearth asbestos-containing-material or contamination at the site, any potential exposure risks should be immediately mitigated and the site should be investigated without delay in accordance with Department of Environment Regulation’s Contaminated Sites Guidelines.  
vii. The applicant is advised that there are pre-existing art-based land uses within the J-shed complex which may at times, be associated with, and accompanied by noise and odour emissions typical of semi-industrial type land uses.  
viii. Council does not support creating new vehicle access via Mrs Trivett Place.”  
On 27 November 2015, the WAPC granted conditional planning approval for Temporary Approval - Special event venue (live music venue) at J Shed Unit 1/Fleet Street (Lot 2051), Fremantle (refer DA0373/15). This approval was subject to the following conditions and advice notes: 
“The application for approval to commence development in accordance with the plans submitted thereto is granted subject to the following condition(s): 
1. This approval relates only to the development as indicated on the approved plans, date-stamped 10 August 2015 by the Department of Planning, on behalf of the Western Australian Planning Commission. It does not relate to any other development on this lot. 
2. This approval is valid until 31 May 2017 (inclusive). 
3. The special event venue shall be limited to an activity deemed appropriate ’Jy, and to the satisfaction of the Western Australian Planning Commission.
  Agenda - Planning Committee  1 June 2016
Page 7 
4. Events are to be held between 1 November and 30 May (inclusive) of each year, up until 31 May 2017 and are to consist of: 
(i) Up to 12 music concerts per year, to be held on any day of the week which are to commence at no earlier than 12:00 and conclude no later than 22:00 with a maximum number of 1000 patrons at anyone time; and (ii) All other uses are limited to weekends and public holidays and are to commence at no earlier than 12:00 and conclude no later than 22:00 with a maximum number of 400 patrons at anyone time. 
5. Prior to commencement of the use of the site, the applicant is to submit and have approved to the specification of the local government and the satisfaction of the Western Australian Planning Commission an Access Management Plan which addresses how event patrons, goods and materials, as required for events, will be transported to and from the site. 
6 Patron access shall be limited to the Southern portion of the licence area via Bathers Beach or the Whalers Tunnel and there shall be no patron access from Lot 51 including the land known as Fleet Street. 
Advice to applicant 
1. Any development which is not in accordance with the original application or conditions of approval will require further approval from the Western Australian Planning Commission. 
2. The applicant is advised to contact the Department of Aboriginal Affairs (DAA) on (08) 6551 8092 to discuss any statutory requirements that may be required to be undertaken and/or fulfilled by them under the Aboriginal Heritage Act 1972. This may include advising the South West Land and Sea Council of the proposed works, of which should be confirmed with the DAA. 
3. The DAA advise the applicant that they have released the Aboriginal Heritage Due Diligence Guidelines to assist developers with planning and considering Aboriginal heritage during proposed works. A copy of the guidelines can be found on the DAA website as: http://www.daa.wa.gov.au/globalassets/pdf-files/ddg  
4. The applicant is advised that the Department of Environment Regulation (DER) has recommended that management of ground disturbing works at the site include contingency measures for unexpected unearthing of asbestos or contamination, to eliminate any potential health risks to workers or the public. In the event that the development activities detect or unearth asbestoscontaining-material or contamination at the site, any potential exposure risks should be immediately mitigated and the site should be investigated without delay in accordance with the DER’s Contaminated Sites Guidelines.  
  Agenda - Planning Committee  1 June 2016
Page 8
5. In relation to Condition 3, activities deemed appropriate for the special events venue include  Weddings  Art exhibitions and functions  Gala Dinners  Awards Nights  Music Events  Conferences  Brand Activations  Fashion Events  Product Launches  Corporate Functions  Corporate Christmas parties  Social & Celebratory events - birthday and anniversaries 
6. Any alcohol advertising or promotion shall not include naming rights or prominent alcohol name brand sponsorship. 
7. Brand or corporate advertising or promotion, including banners, flags, and umbrellas shall not be visible from the Bathers Beach and Arthur Head reserve area.” 
DETAIL
On 5 August 2015, the City received an application for planning approval for a Partial change of use to Tavern (including live music), additions and alterations to existing building at J-Shed Unit 1 (Lot 2051) Fleet Street, Fremantle (refer DA0370/15). 
In late 2015, after approval was issued for the temporary activation of the site, the applicant made a request to the WAPC to put the processing of DA0370/15 for the tavern on-hold to allow the concerts to be ‘trialled’. In a letter addressed to the WAPC dated 31 March 2016, being after a number of music concert events had been held at the site, the applicant requested the WAPC ‘re-activate’ the processing of the tavern application for DA0370/15. 
The applicant has indicated that the proposal will comprise of:  Partial change of use to tavern, which includes a micro-brewery component;   Additions and alterations to existing J-shed building to accommodate the proposed tavern land use;  12 concerts over the summer months (held on any day of the week);  850 patron capacity for regular ‘tavern’ trade and 1500 capacity for ticket music concert events.  Hours of operation: o Monday to Saturday – 11:00am to 12:00am (midnight); o Sunday - 11:00am – 10:00pm;  Number of employees: Approximately 10 staff at any given time, during standard operations  
  Agenda - Planning Committee  1 June 2016
Page 9
There may be incidental temporary events which would be subordinate to the predominant tavern land use which they are seeking planning approval. Such events would likely include those that were considered previously by Council for the Temporary Approval - Special event venue (live music venue) (refer DA0373/15), which covered:  1. Weddings 2. Art exhibitions and functions 3. Gala Dinners 4. Awards Nights 5. Music Events 6. Conferences 7. Brand Activations 8. Fashion Events 9. Product Launches 10. Corporate Functions 11. Corporate Christmas parties 12. Social & Celebratory events - Birthday and anniversaries 
A copy of the development plans are contained as Attachment 1 of this report, which also includes additional information from the applicant based on events that have occurred on-site as a result of the temporary activation approval for live music events. 
A copy of the accompanying information and applicant’s heritage assessment is contained as Attachment 2 of the report. 
STATUTORY AND POLICY ASSESSMENT
The proposal was assessed against the relevant provisions of Council’s Local Planning Scheme and planning policies. 
CONSULTATION
Community First advertising period (2015) The application was not required to be advertised in accordance with Clause 9.4 of the LPS4 and Council’s Local Planning Policy 1.3 - Notification of Planning Proposals (LPP 1.3) as the provisions of LPS4 and affiliate LPP’s are not applicable.  
Notwithstanding, the City did advertise the proposal, given that it considered that there may be some impact to adjoining landowners and that it was in the public interest to advertise the proposal:  given that the land use is typically discretionary within most zones under LPS4; and  the car parking requirement for such a land use under LPS4 would also mean that there may be some impact. 
Advertising of the applications comprised of the following:  Letter to owners and occupiers within 100 metres of the site;  Advertising of the application occurred on the City’s website; and  One notice relating to the proposal was placed in the Fremantle Gazette on the 22 August 2015 
  Agenda - Planning Committee  1 June 2016
Page 10
At the conclusion of the advertising period, being 28 August 2015, the City received 78 submissions pertaining to the proposals. Of the 78 submissions, 76 were against the proposals, with the remaining 2 in support.  
In general terms, the common concerns that were identified by the City which were raised related to:  Land use   Noise   Anti-social behaviour  Car parking  Approval of lease  Access issues in and around the premises  Heritage   Property devaluation 
It is noted that a number of submissions also made reference to the lease agreement between the City and Sunset Events. The lease agreement does not form part of this planning assessment. 
Relevant planning related issues raised in the submissions are addressed in the “Planning Comment” section below. 
Second advertising period (2016) In addition to the advertising period conducted in 2015, the City also re-advertised additional information and plans submitted by the applicant, received on 1 April 2016. The City therefore sought any additional input nearby residents may have had based on the events that have occurred on site since November 2015 as part of the temporary approval and the additional information provided, prior to the City making its recommendation to the WAPC. Letters were sent to residents and occupiers within a 100m radius of the subject site, providing them with 14 days to provide comment. At the conclusion of this period, being 3 May 2016, the City received 19 submissions and an additional 1 late submission after the closing date. Of these 20 submissions, 18 raised concerns, 1 provided comment only and another was indecisive. 
In general terms, the common concerns that were identified by the City which were raised related to: 
 Land use   Noise (from the concerts held at the site)  Anti-social behaviour (from the concerts held at the site)  Rubbish (from the concerts held at the site) 
It is clear from the submissions, that there are fundamental concerns that the community has had with operation of the site since the WAPC granted approval for the temporary activation in November 2015 (DA0373/15). 
A copy of the schedule of submissions is contained as Attachment 3 of this report.  
  Agenda - Planning Committee  1 June 2016
Page 11
As the schedule of submissions summarise the general concerns raised in dot points, should Council wish to peruse the submissions in full, this can be done upon their request. 
Internal Referrals City’s Infrastructure and Project Delivery Directorate The City’s Infrastructure and Project Delivery Directorate has reviewed the proposal and has advised that they do not have any concerns with the proposal. Their comment will be sought as part of any future proposed access arrangements to the site, in the event that access cannot be obtained via Fleet Street. 
City’s Environmental Health Department The City’s Environmental Health Department has reviewed the proposal and has recommended a number of advice notes pertaining to need for further approval under separate legislation, as well as requirements of operating such a land use, including:  
“1/. EH.DA.AN6 - Food Premises The proponent must apply to register and license the food business so that the premises comply with the Food Act, Regulations and the Food Safety Standards incorporating AS4674-2004 Design, construction and fit-out of food premises. Submit detailed architectural plans and elevations to the City’s Environmental Health Services for approval prior to construction. The food business is required to be registered under the Food Act 2008. For enquiries and a copy of the application form contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856. 
2/. EH.DA.AN2 - Public Building The proponent must make application during the Building License application stage to the City’s Environmental Health Services via Form 1 - Application to construct, alter or extend a public building as a requirement of the Health (Public Buildings) Regulations 1992. For enquiries and a copy of the application form contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856. 
3/. The J Shed building must be connected to sewer to remove all liquid waste – i.e. from bars, kitchens, grease traps, toilets – from the building. 
4/. All rubbish and recycling receptacles to be stored in a secure location to temorarily store all waste materials prior to collection. 
5/. The applicant must apply and pay for Liquor Control Act s.39 Health Certificate prior to operation of the building. 
6/. The applicant must apply and pay for an “entertainment event/venue” approval under Environmetal Protection (Noise) Regulations at least 60 days prior to the first event date and/or venue use. 
7/. The performance stage should face in a direction that will significantly disperse sound energy emitted by amplified music first to the ocean and second not towards on-shore residents (NSRs).
  Agenda - Planning Committee  1 June 2016
Page 12 
8/. The applicant should voluntarily reduce the sound level of amplified music should to a level that is not unreasonable at the closest noise sensitive receivers (NSRs) – see table 4.4 in noise monitoring report attached. 
9/. The applicant must investigate and report on the suitability of other sound attenuating materials inside the event venue and the J Shed building’s other tenancies that will deflect unreasonable noise away from noise sensitive receivers (NSRs) at J Shed tenancies and the residences of the west end. 
10/. The applicant must investigate and report on the predicted modelling of sound levels at noise sensitive receivers (NSRs) where the mixing desk level is agreed to be set at lower sound emission levels that are below or similar to those reported in Table 4.4 of “EcoAcoustics J Shed Concerts Sunset Events Event Noise Control Report” dated 10 May 2016. This EH advice is based on the sound levels in Reg 18(8) that would attract a noise monitoring fee in the attached flow chart. 
11/. Should agreement not be reached between the applicant and the CEO then the CEO should inform the applicant of a proposed ‘ancilliary condition’ stating the measures the applicant will do to remove NSRs from areas of high noise during preformance of amplified music, i.e. the ameriloration package previously conditioned in typical CoF Reg 18 noise notices.”  
It is recommended that conditions and advice notes outlining the above be included. 
City’s Heritage Department The City’s heritage department has reviewed the proposal and has provided the following comments: 
“The proposed works are supported, subject to the following conditions:   The low limestone wall should be replaced with a landscaping structure that more obviously communicates the impression of a cliff and accurately follows the line of the turn of the century cliff line.   All works in the area of the archaeological sites are to be monitored by a qualified archaeologist to ensure that no damage is caused to them by the proposed works.  The proposed fencing to the boundary of the lease area is not supported. There should be no permanent fencing that would prevent the establishment of strong visual links between the site and Bathers Beach (and the reverse).  Ground levels should remain unaltered.  There should be no grass to the south of the new limestone interpretive wall. The area should be a natural beach landscape.  The new shade structure proposed for the west side of J Shed should not be fixed to the building, but instead should be supported on a complete freestanding structure.” 
Whilst the heritage department is largely supportive of the proposal, there are certain elements which require modification to ensure that the development is sympathetic to the heritage significance of the property. Accordingly, it will be recommended that these aspects of the proposal are passed onto the WAPC as conditions of planning approval.
  Agenda - Planning Committee  1 June 2016
Page 13 
A copy of the heritage comments is contained as Attachment 4 of this report. 
City’s Arts and Culture Department 
The latest plans and additional information was referred to the City’s Arts and Culture Department, whom provided the following comments: 
“The key comments from an events perspective are: 
 External ticketed concerts not to exceed 5 hours with a hard curfew of 10pm for live performance, piped music and service of alcohol.  Sound checks only permitted on show day and not to exceed 90 minutes in length. 
All other conditions we would like to see I believe would relate to the lease document (eg notification of residents about concerts) and are not relevant to the DA.” 
It is recommended that the above be imposed as conditions of planning approval. 
City’s Economic Development and Marketing Department 
The latest plans and additional information was referred to the City’s Economic Development and Marketing Department, whom provided the following comments: 
“The Lease enables the City to reduce the number of patrons however for the full capacity (approved under the Lease) to be possible the applicant is required to apply for that capacity during the DA process. The approval of these numbers under the DA does not alter the City’s capacity as Landlord to reduce the numbers, as required, in line with Lease terms.  
Should the application for (maximum) patron numbers be reduced during the DA process from the numbers applied for, the Lease will require alteration so that Lease terms are consistent with the DA approved. This can occur via a Variation of Lease document which simply varies the required conditions within a Lease. The document will require Council and Minister for Lands approval.   
In relation to your waste management question I’ve also attached the reflective lease clause. They should be including a location for waste management as part of their DA.” 
External Referrals Whilst the City is not the determining authority for this application, it referred the proposal to external agencies where relevant, as if it were. Advice from these agencies was sought by the City to assist Council in preparing its recommendation to the WAPC.  
State Heritage Office (SHO) (2015) The application was referred to the SHO as the site is on the State Heritage Register. The SHO provided the following comments in relation to the proposal: 
  Agenda - Planning Committee  1 June 2016
Page 14
“Findings  The referral is for a partial change of use of J-Shed into a tavern with associated additions and alterations, and the temporary approval for it to be used as a special event venue. J-Shed is within the registered curtilage of the Round House & Arthur Head Reserve.  The 2011 Conservation Management Plan by Griffiths Architects classifies J-Shed as having ’secondary/some significance’ for its association with the adjacent early port activities at Victoria Quay, and because it marks the site of the last period of extensive quarrying. The limestone interpretative wall is of little significance, although the original cliff line it interprets is significant.  J-Shed is a relocated structure, adapted for its current location, and has lost some original detailing through the replacement of elements and the south glass facade is not original.  We note that much of the site, including the area to the south west of J-Shed is of exceptional archaeological significance.  The built alterations and additions to J-Shed and the surrounding area are simple in design and sympathetic in nature. The new structures are reversible and readily removable.  The proposed changes to J-Shed will provide an ongoing use of the place and maintains its economic viability.  The demolition of the limestone wall will remove an interpretative element of the site. However, we note that the original cliff line is being reinterpreted through a new ground marker. 
Advice The proposed development, in accordance with the plans submitted, is supported subject to the following condition: 1. A watching brief is to be undertaken by a qualified archaeologist during all works.” 
State Heritage Office (SHO) (2016) The additional information and plans were sent to the SHO again for them to provide comment. The advice was largely the same as in 2015; however there was a change to the recommended condition to what was previously advised. 
“Advice The proposed development, in accordance with the plans submitted, is supported subject to the following condition: 
1. An Archaeological Management Strategy that meets the satisfaction of the Executive Director of the State Heritage Office is to be developed and applied to the works”  
  Agenda - Planning Committee  1 June 2016
Page 15
Accordingly, it is recommended that a condition be imposed requiring the above be implemented as per SHO advice. 
The SHO was contacted for further clarification on the differences between a ‘watching brief’ which they had previously recommended, and an ‘Archaeological Management Strategy (AMS)’ as they are not proposing to be required, outlined as follows: 
 “An Archaeological Management Strategy (AMS) is a short document that guides works at a specific place, or even for a specific set of works. A watching brief is when an archaeologist is hired to monitor works and deal with archaeological material as it occurs.   A watching brief is a generally-accepted response for archaeological material, but it has a couple of disadvantages. It is expensive to hire an archaeologist to stand and watch all day. It also might not be the best response for the site.   The State Heritage Office is therefore recommending an AMS instead. It’s less expensive to get one written, and the archaeo[ligist] might analyse the site vs the proposed works and recommend a different response, such as test-pitting or having an archaeo[ligist] on stand-by to be called in as needed. The advantage is that you get a tailored response and might not need the presence of an archaeo[ligist]  on site at all times. It also lets everyone know what is expected at the site and what to do in terms of  unexpected finds, so decisions aren’t being made in the face of a bulldozer.” 
Fremantle Port Authority (FPA) (2015) The application was referred to the FPA as the site is located within Fremantle Port Buffer Area 2, and given that they are adjoining landowners. The FPA provided the following comments in relation to the proposal: 
“Fremantle Ports has concerns about the proposed redevelopment of J Shed (Lot 2051, Fleet Street Fremantle) to allow the operation of a tavern and special events venue, these being raised in my letter of 13 March 2014.  
In summary, our Concerns arise due to the proposed redevelopments seeking to introduce a range of intensive. Urban type land uses within close proximity to port operational lands (South Mole and Victoria Quay). These intensive land uses have the potential to negatively impact the operations of tenants (such as Challenger Institute) and Fremantle Port through noise, vehicle access and car parking availability and increases in anti social behaviour. 
The J Shed proposal is highly dependant on the use of Fremantle Ports’ freehold land for vehicle access, car parking and pedestrian movements. This is highlighted in the Applicant’s supporting submission, whereby reference is made to the use of the Victoria Quay and South Mole car parks and Fleet Street access way. 
It is our view that the reliance on Fremantle Ports’ land, casts doubt on the validity of the application for development. Fremantle Ports is not a party to the application. Has not signed the MRS Form 1, and has not been consulted during the progression of the development proposal Fremantle Ports therefore requests that the two development applications are deferred. The applications should not
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progress until Fremantle Ports has consented by way of signing the MRS Form 1 as an owner of the land being used for the purposes of the development.” 
The City understands that Fleet Street to the north-west and north of the site may have been transferred from the Crown to the FPA freehold as of 15 July 2014. There is existing vehicle access infrastructure off Fleet Street, servicing the existing tenancies of J-Shed. The City understands that no legal mechanisms were put in place on the Certificate of Title of the sale of this land in Freehold to the FPA which would ensure that these pre-existing vehicle arrangements could continue in the future.  With no such arrangement in place, and the absence of any written legal consent of the FPA for access to the site via the Fleet Street (being private property), alternative pedestrian and vehicle access arrangements should be put in place for deliveries and the like.  
It is noted that when the lease was being considered by Council in early 2014, the Fremantle Ports did raise serval matters of concern with the City however the specific matter relating to the dependency of vehicle access to J Shed being entirely dependent on the use of Fremantle Ports’ freehold land was not raised.  
City of Fremantle planning staff met with Port planning staff on 29 September 2015 who advised that they would not sign the MRS Form 1 as they have issues with various components of the development. They also advised that there were no issues with the artists that currently occupy the northern portions of J Shed using the Fleet Street vehicle access as those uses were of a significantly less intensity than that proposed by the current application. 
The City’s Infrastructure and Project Delivery Directorate has provided comment on the possibility of vehicle access being gained to the site via the recently constructed footpath along Bathers Beach. They have advised that the footpath is not suitable for vehicular traffic and that it would likely suffer significant damage as a result. Any proposal to use this as an alternative vehicle access solution to the site is unlikely to be supported by the City, so other options would need to be explored further. Some alternative access options may include (but not limited to):   1. Utilising the road immediately adjacent to the rail line and transporting materials underneath the Whalers tunnel; 2. Using a scissor lift located adjacent to Mrs Trivett Place to lower materials down to J Shed; 3. Construction of a new vehicle access immediately north of Mrs Trivett Place as outlined in Figure 1 below; 
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Figure 1 - Possible alternative vehicle access point via Mrs Trivett Place 
There are inherent issues with this however, given the significant change in topography, proximity to the adjoining FPA-owned Freehold lot inclusive of Fleet Street. The changes in topography levels between Fleet Street and Mrs Trivett Place can be viewed in the site photos as contained within Attachment 6. Notwithstanding this, should such arrangements be able to be formalised, it would be impossible to avoid traversing the FPA privately owned land to leave any new vehicle access point via Mrs Trivett Place, and on Phillimore Street, as detailed in Figure 2 below.   
Figure 2 - One-way road system necessitates crossing over FPA owned land Relocation of the existing round about above further east to avoid access being required over Port land would solve this issue. 
As legal vehicle access potentially cannot be obtained via Fleet Street, a condition of planning approval is recommended requiring the submission and approval of an access management plan, which would detail how the applicant would transport goods and materials to and from the premises that would be required for events.
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The City endorsed an alternative access management plan on 23 October 2015, which is shown in part, in Figure 3 below. The alternative access plan ensured no vehicle or pedestrian access to the site via Fleet Street, achieved by:  Hand trolley access for furniture, tools and theming items via the Whalers Tunnel (orange line);  Light vehicles and catering (under 2 tonnes) to use existing path west of the train line (yellow line);  Truck access for forklift, fencing, toilets, flybridge, bar stock and bin along existing path west of train line to ‘truck unloading point’ (red), which will then be ferried along yellow line. 
This plan was endorsed and approved by the City’s Infrastructure and Project Delivery Directorate, subject to satisfying payment of an appropriate bond. The City advised the WAPC that it was satisfied with this alternative access arrangement, which would ultimately form part of the requirement stipulated in condition 5 of the WAPC’s planning approval dated 27 November 2015 for DA0373/15.  
Figure 3 - Approved alternative access management plan 
It is noted that the FPA did not provide any comments in relation to the proposal in the context of Local Planning Policy 2.3 – Fremantle Port Buffer Area Development Guidelines (LPP2.3).  
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Fremantle Port Authority (FPA) (2016) The additional information and latest plans were re-referred to the FPA for comment, whereby the following response was received: 
“From a land use compatibility perspective the proposed permanent tavern is of concern to Fremantle Ports. The Inner Harbour is the only dedicated container port in Western Australia – its protection and ability to grow to serve the State and National economies is a fundamental objective for Fremantle Ports. Attached is our previous submission relating to the initial development application for temporary use. 
Fremantle Ports has been in close liaison with the proponents and the City since the site was initially approved in late 2015 for events on a temporary basis. Initially concerns were raised in regards to potential externalities including vehicle and pedestrian movements, parking and anti social behaviour. The process that was put in place to address our concerns in relation to the initial temporary approval, which included regular meetings with the proponents before and after each event has proven to be a very useful mechanism to manage use of the site and to develop a good working relationship; it has been beneficial and effective in dealing with any matters as they have arisen. 
In light of our experience to date we believe, that if approval is granted for a permanent tavern, the current practice of regular pre and post event meetings should be continued for the first 12 months of operation of operation. This is considered an adequate period to ensure that any potential issues associated with permanent use of the site can be identified and addressed. 
It is also requested that the proponent, in liaison with the City and Fremantle Ports, be required to document and commit to the manner in which externalities will be managed.” 
It is not considered appropriate to recommend the above requirement as a condition of planning approval, rather that it be recommended as an advice note that encourages this to occur.  
Despite comments from the FPA in their 2015 submission noting concerns about the use of Fleet Street to access the site, since temporary approval was granted by the WAPC in November 2015, the applicant has used Fleet Street to obtain vehicle access to the site with the full knowledge of the FPA. 
In the event that the FPA was to withdraw their consent for the applicant to use Fleet Street to access the site, which they are entitled to do, the City considers that vehicle and pedestrian access to the site is still tenable in the form of the endorsed alternative access management plan. It will be recommended as a condition of approval that an alternative access management plan be provided, which is likely to be the same one that the City has already endorsed as part of the temporary approval for DA0373/15.  
Department of Environment Regulation (DER)
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The application was referred to the DER as the site is listed as ‘possibly contaminated – investigation required’. The DER advised that they have “no objection to the proposed development … provided that the following advice is appended to any approval for this development”: 
“It is recommended that management of ground disturbing works at the site include contingency measures for unexpected unearthing of asbestos or contamination, to eliminate any potential health risks to workers or the public. In the event that the development activities detect or unearth asbestos-containing-material or contamination at the site, any potential exposure risks should be immediately mitigated and the site should be investigated without delay in accordance with Department of Environment Regulation’s Contaminated Sites Guidelines.” 
Accordingly, it is recommended that an appropriate advice note be placed on the recommendations to the WAPC for inclusion on any approval that may be forthcoming. 
Department of Aboriginal Affairs (DAA) The City is not aware of any statutory requirement that may necessitate formal referral of an application for planning approval to the DAA in the case of this proposal. Notwithstanding this, the application was referred to the DAA for their comment as the site is located within the boundaries of two known Aboriginal heritage places: DAA 3421 (Fremantle: Manjaree) and DAA 3774 (Fremantle: Arthur Head). 
The DAA has recommended that the applicant be advised of their obligations under the Aboriginal Heritage Act 1972. Accordingly, it is recommended that appropriate advice note be placed on the recommendations to the WAPC for inclusion on any approval that may be forthcoming. 
PLANNING COMMENT
Metropolitan Region Scheme (MRS) The subject site is reserved as ‘Parks and Recreation’ under the MRS. Land is reserved for community purposes. It may be reserved to protect a resource or to provide areas for infrastructure. The following descriptions are a guide. 
Its reservation under the MRS means that it is: “Land of regional significance for ecological, recreation or landscape purposes.” 
It is considered that the proposal is generally consistent with the intent of the reservation, specifically in relation to recreation as music events. Ultimately, it will be up to the WAPC to determine whether it considers these proposals to be consistent with the nature of the reservation. 
Local Planning Scheme No. 4 (LPS4) 
As the site is reserved under the MRS, the provisions of LPS4, including development standards such as car parking, do not apply and are only used as a guide.  
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Car parking 
 Required Proposed Shortfall Tavern/Hotel 1: 2.5m2 of public bar area 155m2 public bar area = 62 bays 0 62  1: 5m2 of lounge/garden area 950m2 garden area = 190 bays 0 190   Total 0 252 
Clause 5.7.3 of LPS4 outlines circumstances where Council may waive or reduce the standard parking requirement specified in Table 3, and states: “Council may—  (a) Subject to the requirements of Schedule 12*, waive or reduce the standard parking requirement specified in Table 3 subject to the applicant satisfactorily justifying a reduction due to one or more of the following—  (i) the availability of car parking in the locality including street parking,  (ii) the availability of public transport in the locality,  (iii) any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces,  (iv) any car parking deficiency or surplus associated with the existing use of the land,  (v) legal arrangements have been made in accordance with clause 5.7.5 for the parking or shared use of parking areas which are in the opinion of the Council satisfactory,  (vi) any credit which should be allowed for a car parking demand deemed to have been provided in association with a use that existed before the change of parking requirement,  (vi) the proposal involves the restoration of a heritage building or retention of a tree or trees worthy of preservation,  (viii) any other relevant considerations.  Note: *In some sub areas identified in Schedule 12 reduction of parking bays is not permitted. The requirements of Schedule 12 prevail over this clause.  (b) Council may require an applicant to submit a report completed by a suitably qualified person or persons justifying any of the points cited above. Note: Provides greater flexibility to vary car-parking requirements based upon alternative transport opportunities.” 
In relation to the above criteria of Clause 5.7.3 (i), it is noted that there is a significant provision of on-street parking available in the immediate vicinity and surrounding locality of the subject site. It is noted that this does not include any car parking on private property, including parking contained within the land owned by Fremantle Port Authority (FPA), particularly their land in and around the Fleet Street locality.  
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It is further noted that should the application be supported, it does not preclude rights for parking to be used within privately owned land, such as parking within the FPA area. There are a number of parking areas within the FPA that are clearly identified as paid parking, and others which have been fenced off, restricting access to those areas. Ongoing compliance with parking on private property is typically a matter between the landowner, and the alleged offender and ultimately it is up to the landowner to manage this issue. 
A recent parking study of the City Centre undertaken on behalf of the City revealed that there is currently significantly underutilised public car parking capacity in the centre and this spare capacity will likely remain available for a number of years notwithstanding new development activity including development of existing car park sites. Evidence of underutilised public parking capacity was obtained through a comprehensive study of city centre car parking supply and demand patterns carried out by specialist consultants Luxmoore on behalf of the City in late 2012. The Luxmoore study indicated that in the precinct of the city centre there are approximately 1,500 off street public car bays plus approximately 250 on-street parking bays. The average vacancy rate of parking spaces in the precinct identified from surveys undertaken for the study was 48%. Significantly, the Queensgate multi-storey car park which is located 700 metres away from the subject site has 850 bays, with an average vacancy rate of 47% (400 bays) and a vacancy rate at peak occupancy times of 16% (136 bays).  
The findings of the Luxmoore study are informing the City’s development of a longer term strategic approach to public parking provision as part of the preparation of the Fremantle Activity Centre Structure Plan, which is currently in progress. 
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In relation to (ii), the site is located approximately 600m from the Fremantle Train Station which provides rail services to and from the Perth Central Business District (CBD) and connecting rail network. Further, it is also located within 600m of the Fremantle Bus Station, which provides bus services on routes 98, 99, 103, 106, 107, 111, 148, 158, 160, 381, 501, 502, 511, 513, 520, 530, 531, 532, 825 and 920.  
In this regard, the site is considered to be very well serviced by public transport within walking distance. It would be reasonable to expect that by the very nature of the proposed use, and any liquor license that is subsequently granted, that patrons may plan their day and/or night ahead, whether that be car-pooling, catching public transport, catching a taxi or alternative means of transport other than driving. In this regard, it is considered that this may reduce the overall impact of car parking shortfall associated with this change of use application.  
The City’s Arts and Culture – Events Department has provided the following patronage numbers, for events held throughout the City: 
 Beerfest 4,000 (patrons per day)
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 St Jeromes Laneway Festival 10,000  Blues and Roots 12,000  Chilli Fest 23,000 (over two days) 
Given that this proposal seeks a maximum number of 850 patrons in standard ‘tavern’ mode, and 1,500 in ‘event’ mode which occurs 12 times per year, which is significantly lower than the above events, demonstrates that the City’s transport infrastructure (ie car parking, public transport) has the capability to absorb the number of patrons proposed. 
It is also noted that there is an existing tavern (restricted) 250m to the south, being ‘Bathers Beach House’ which also does not provide for any on-site car parking. It is acknowledged that this is within a different reservation under the MRS; however that does not extinguish the fact that it is capable of operation without the provision of on-site car parking. 
Accordingly, the proposal is considered to satisfy the requirements of Clause 5.7.3 of the City’s LPS4. 
Local Planning Policies (LPP’s) LPS4 acts as the head of power in creating LPP’s. As detailed above, given that it’s an MRS reservation, application of the provisions of LPS4 and therefore LPP’s in the context of these applications are only as a guide and are not binding, the following policies and their provisions should be viewed as such. 
DGF5 – Arthur Head Reserve Strategy Plan The subject site is located within Precinct 3 – J-shed as prescribed by DGF5. DGF5 prescribes that the goal of this precinct is to: “Develop this area as a transition zone that links the Arthur Head Reserve with port uses and other maritime themes of the foreshore” 
There are three specified objectives for this precinct, which are detailed and discussed below: 
Objective 3.1 of DGF5 states:  “Provide a northern access to the Reserve” 
The proposal still maintains northern access to the Reserve around the western and eastern sides of the lease area. Furthermore, the proposed fencing around the lease area has not been supported on heritage grounds, so this will ensure that visually that there are no physical restrictions on traversing the lease area north-to-south and vice versa. The City understands that the Department of Racing Gaming and Liquor (DRGL) will require a form of barrier physically defining the licensed area, to assist in management of patrons accessing and egressing the premises and other reasons. This application will likely necessitate the erection of a temporary form of fencing, typically associated with music events. Given the temporary nature of such fencing, which will likely only be erected for a few days either side of any such event, its lack of permanency ensures that any long term impacts are mitigated.  
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Notwithstanding this, in the in event that the WAPC does approve the fence in its current form, which would be against the City’s recommendation on heritage grounds, pedestrians would still have freedom of movement on existing footpaths heading west towards the south mole to footpaths along Fleet Street, permitting pedestrian movement north-to-south, albeit not directly through the site. This would require pedestrians moving into FPA owned land, however this would be the case in any event based on current circumstances. 
Objective 3.2 of DGF5 states: “Encourage low profile commercial uses of J-Shed reflective of and compatible with the history and maritime themes of Arthur Head and the foreshore.” 
There is no definition of what distinguishes a ‘low profile’ commercial use against a ‘high profile’ commercial use within DGF5.  
In this regard, and despite the lack of definition of this term, Council could form the view that allowing either up to 850 patrons in standard tavern mode and/or up to 1,500 patrons for ticketed events up to 12 times a year may present too many detrimental amenity concerns and as such not be considered to be ‘low profile’. If that is the case, Council may consider not supporting the proposal.  
It is noted that in relation to the tavern land use, even though they are seeking up to 850 patrons as a maximum, it is highly uncommon for any tavern within Fremantle, and the broader Perth Metropolitan Region (PMR) to be at capacity at any given point during all trading hours, except for weekends and public holidays. So it is reasonable to suggest that during the majority of hours which it is proposed to be open that it will be consistent with a low key land use. It is acknowledged that the weekends, notably Friday afternoon/night through to Sunday night will likely see the venue close to, or at capacity.  
Furthermore, given that the 1,500 patron live music event is only 12 days over the summer months and therefore constitutes a small percentage of the overall use of site this could be considered to be i “low profile”. 
It is noted that the proposal is for commercial use; however, both the SHO and the City’s Heritage Department have supported the proposal and the proposed works, subject to conditions to make some alterations to ensure compatibility with heritage significance. 
Objective 3.3 of DGF5 states: “Extend the coastal landscape of Bathers Beach in a way that expresses the original landform and defines the northern edge of the reserve.” 
As detailed above in the report, both the SHO and the City’s Heritage Department have supported the proposal and the proposed works, subject to conditions to make some alterations to ensure compatibility with heritage significance. One of the recommended conditions includes the deletion of the permanent fencing around the lease area boundary on heritage grounds by the City’s heritage department. In addition to heritage concerns, it is considered that should the fencing be approved, it would push the northern edge of the reserve from its current location abutting Fleet Street, significantly further south to the southern side of the J-Shed itself.  
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DGF6 – Arthur Head – (West End of High Street, Fremantle) It is noted that this policy is from 1983 and many of its provisions are outdated given the many physical and material changes to the broader area since that time. Notwithstanding this, clause 2 of DGF6 relates to access within the Arthur Head area and states: “Arthur Head is quite small so planning for access is important as well as not overloading the vicinity with proposed developments.  In general terms, visitors should be able to walk easily (from a nearby car park) into the pedestrian-only area of Arthur Head, and enjoy the combination of beach, ocean, vegetation, landforms and historic building as a Local Area which offers physical pleasure, relaxation, information, creature comforts and - importantly - an emotional experience.” 
In terms of the physical development itself as is currently proposed, it could be argued that the proposed building form is relatively minor compared to the J-shed building as a whole, however the proposed patron numbers that are proposed to be facilitated, being 850 for the tavern and 1,500 for the ticketed music events could be considered to represent an ‘overloading of the vicinity’ given that such numbers have typically not been seen within this area on a more permanent basis. 
The proposal still maintains northern access to the Reserve around the western and eastern sides of the lease area. See Objection 3.1 above for further discussion.   
Clause 3 of DGF6 relates to new structures within the Arthur Head area and states: “The only new structures which may be considered for introduction into the Arthur Head area are:  a public amenities building above Bathers Beach to the north of the pottery workshop, incorporating changing rooms,  showers, toilets, and kiosk; and  historic boat shelters, located parallel to the railway line in the vicinity of the Western Australian Maritime Museum.” 
The proposal is not considered to be consistent with above clause, specifically in relation to the types of new structures which may be considered for introduction into the Arthur Head area. In saying this, the overarching planning concern in relation to the above provision is the preservation of heritage. As detailed throughout this report, the City’s heritage department is largely supportive of it, provided that certain aspects of the proposal are modified to ensure that there is an acceptable degree of impact upon the heritage significance of the site. These matters are recommended as conditions of approval, and will ensure that a positive heritage outcome is achieved. Further, the State Heritage Office is supportive of the proposal. 
DGF26 – Planning Policy for the West End of Victoria Quay The subject site is located within ‘Area D – Workshops’ character area as prescribed by this policy. Clause 3.4 of DGF26 sets out conservation objectives, land use and development principles.  
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The policy prescribes the following uses as ‘primary uses’:  maritime and port functions;  maritime education;  maritime industry, research and exhibition;  maritime related administration, trade, service and professional offices 
Further, the policy prescribes the following uses as ‘ancillary uses’ (maximum 50% total gross floor area per building):  maritime arts and craft workshops, display, retail (produced on site)  cultural heritage exhibition and interpretation relevant to the site  marine related commercial offices e.g. shipping agents,  marine related trade outlets e.g. boating materials and supplies  car parking 
The proposal is not considered to be consistent with the prescribed primary or ancillary uses as set out for this character area however the area of the building appears to be less than 50% of the total floor area of the building (ie 25% of the existing J-Shed floor area is included in the proposed development). 
The City’s Heritage Department has requested several changes to the proposal to ensure its compatibility with the heritage significance of the site, of which will be recommended to be addressed via conditions of planning approval, prior to issue of any building permit that may be required. 
Furthermore, the SHO has supported the proposal. 
DBU6 – Late Night Entertainment Venues Serving Alcohol Clause 1.1 of Council’s DBU6 relates to the location of late night venues which propose to serve alcohol and states: “Due to access and safety issues, any proposal for a late night entertainment venue (serving alcohol), including hotels, nightclubs, jazz and piano bars and performing arts centres, should be located on land adjacent to well-lit through streets to enable adequate safety and access for taxi cabs. Ideally a loading zone or similar shall be located near the entrance to the building to allow for private vehicle drop off and pick up as well as pre-ordered taxi travel. Amenity and safety considerations may preclude narrow or quiet streets from this type of development. A provision for a queuing area at the entry of the venue is required on site if admission fees or other line up situations are proposed for the venue. If this is not possible Council may consider a site adjacent to a footpath of 3 metres minimum width (from the kerb to the entrance of the property). Proximity of proposed late night entertainment facilities (serving alcohol) to residential development shall form a significant part of the assessment of the applications as, in general, Council does not support proposals which may encourage conflict between land uses.”  
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It is considered that the intent of the policy provisions is based on a late night venue being located either in the city centre itself or in similarly well established and served urban areas. The J-shed has a unique location, and its historic setting combined with it abutting Fremantle Port Authority (FPA) land means that vehicle and pedestrian access is not easily achievable, and therefore the provisions of this policy should be viewed with this context in mind. Notwithstanding this, it is considered that recent improvements which included lime-crete footpath and solar lighting and was completed in 2013 in and around the Bathers Beach area enhance safety at night time. 
The proposal is located more than 100m from the closest adjoining residential development to the east, separated by a limestone cliff. 
Clause 1.3 of Council’s DBU6 specifies matters pertaining to conditions of approval relating to: noise management; management plans; hours of operation; and floor area for the use. Matters relating to noise management are typically an ongoing management issue, governed by environmental health legislation. The management plan typically is assessed and forms part of the applicants Section 39 application for their liquor license application. It will be recommended that the hours of operations as proposed, are imposed as a condition of approval. 
Notwithstanding the above, it is noted that the issue of a Liquor License is a separate approvals process, issued under separate legislation by the State Government’s Department of Racing Gaming and Liquor. 
DGF14 – Fremantle West End Conservation Area Policy Clause 4.1.2(b) of DGF14 provides for development controls within the Arthur Head Reserve as contained within ‘The Foreshore’ area specifies: “A low key use of the J-Shed, compatible with the ethos of the area, is acceptable.”  
There are a number of artists based industries and businesses in an around the J-Shed area. The live music component of the proposal of the site, which includes live music, is also a form of art and that this should be considered appropriately. The scale of event mode (1,500 patrons) could be viewed as not being low key based on numbers and capacity alone, so Council would have to be satisfied that the use is compatible with the ethos of the area, having regard to its potential to provide additional means of art, albeit through a different medium than what is currently existent in the immediate locality. The 1,500 maximum would occur only 12 times per year. 
It is noted that in relation to the tavern land use, even though they are seeking up to 850 patrons as a maximum, it is highly uncommon for any tavern within Fremantle, and the broader Perth Metropolitan Region (PMR) to be at capacity at any given point during all trading hours, except for weekends and public holidays. So it could be suggested that during the majority of hours which it is proposed to be open that it will be consistent with a low key land use. It is acknowledged that the weekends, notably Friday afternoon/night through to Sunday night will likely see the venue close to, or at capacity.  
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Regarding as assessment of whether the “ethos” of the proposal is acceptable, the “ethos” of the area could be defined by the relevant policies for the area. As stated in the discussion of each policy objective/requirement above, as it is considered that the proposal generally meets the policy requirements, it can be argued that the proposal therefore meets the ethos of the area. 
Public Submissions 
As detailed in the schedule of submissions as contained as Attachment 3 of this report, the City received a considerable amount of submissions, most of which objected to the proposal. Key themes in the issues raised in the submissions, which haven’t already been addressed or discussed above already included, but was not limited to, the following matters:  Anti-social behaviour;  Property devaluation;  Access impacts upon other J-Shed tenants;  Noise;   Rubbish;   Lease 
Anti-social behaviour A number of submissions raised concerns pertaining to this matter. Such matters are addressed through separate legislation other than planning legislation, and are typically a responsibility for the management of the licensed premises, and for the Police. 
The City did receive submissions in relation to this proposal, and has received complaints regarding events held on the site since November 2015, about numerous examples of anti-social behaviour including but not limited to urination in public, general disturbances and damage to property. It is noted that whilst these are tangible issues of public interest, the planning system (and its legislation) is not designed or geared to control the behaviour of individuals. In saying this, planning does have the power to control and put limitations on a number of ‘control components’ in order to manage such land uses, such as hours of operation and number of patrons. 
Property devaluation This is not a valid planning consideration. 
Access impacts upon other J-Shed tenants The City is satisfied that the location of the northern entry to the proposed Tavern will not restrict access to, nor significantly impact the operations of other J-Shed tenants. 
FPA has verbally advised that they have no in-principle issue with allowing on-going access to existing tenants of the J-Shed via Fleet Street, as the intensity of their land uses (car parking and pedestrian) is significantly less than what is proposed.  
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Noise The City has received a number of complaints from residents and nearby business operators, including other tenants of the J-shed pertaining to noise since the site has begun operation as a live music venue. It is acknowledged that noise is an important amenity indicator and factor to be considered when assessing and determining applications for planning approval. 
The applicant has submitted an Acoustic Report, which monitored noise emissions for J Shed Concerts held since the temporary planning approval was issued by the WAPC in November 2015: 
 26 February 2016 – ‘Missy Higgins’  19 March 2016 – ‘San Cisco’  2 April 2016 – ‘Koi Child’  9 April 2016 – ‘Pineapple Club’ 
The Acoustic Report details noise measurement since temporary approval was granted in November 2015. These measurements indicate the ability to comply with the relevant legislation. On this basis, it is shown that noise can indeed comply on this site. This is different to circumstances where there may be a restaurant or similar land use that abuts a residential dwelling where it is almost impossible to comply without noise attenuation measures being implemented physically into the development emitting the noise (ie the source). In this regard, it is considered that there are appropriate mechanisms to ensure that noise complies through the noise regulations. 
Noise is an amenity issue that is governed by separate legislation, other than planning legislation. Further, the site is located between an active sea port and active freight rail, which can emit substantial noise in their own right.  
The City of Fremantle undertook noise measurements outside a nearby residential property which met the requirements of the noise regulations.  
Rubbish This is not a valid planning consideration. 
It has been recommended that a condition of approval be imposed requiring the submission and approval of a waste management plan which would detail the storage and management of the waste generated by the proposed tavern.  
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Lease  The City’s Economic Development and Marketing Department, who is in charge of administering lease of City owned and/or managed properties has provided the following advice in relation to the relationship between the lease and this application: 
“The Lease enables the City to reduce the number of patrons however for the full capacity (approved under the Lease) to be possible the applicant is required to apply for that capacity during the DA process. The approval of these numbers under the DA does not alter the City’s capacity as Landlord to reduce the numbers, as required, in line with Lease terms.  
Should the application for (maximum) patron numbers be reduced during the DA process from the numbers applied for, the Lease will require alteration so that Lease terms are consistent with the DA approved. This can occur via a Variation of Lease document which simply varies the required conditions within a Lease. The document will require Council and Minister for Lands approval.”   
STRATEGIC IMPLICATIONS 
The proposal is consistent with the City’s following strategic documents: 
Economic Development Strategy 2011 -15:  New commercial businesses established in Fremantle providing employment opportunities. 
Strategic Plan 2010 – 15:  New commercial businesses established in Fremantle providing employment opportunities.  Provide for economic growth by planning and promoting development and renewal in designated precincts within the City.  Protect and enhance our significant built and social heritage.  Maintain and grow tourist and visitor servicing. 
Comment from City Business Directorate 
Clauses 5 and 7 of Council’s resolution to enter into the lease agreement, as detailed in the Strategic and General Services Committee meeting held on 12 February 2014 (item SGS1402-2) state: 
“5. The lessor and lessee mutually agree that the lease boundaries are established for the purpose of executing the lease so as to enable the lessee to investigate the planning, heritage, urban design, and landscaping matters relevant to the proposed development of the lease area through the design development process and the determination of any required applications by the appropriate authorities. 
7. The lessor and lessee mutually agree to work collaboratively to develop a masterplan and/or detail design for the lease area, the overall reserve and adjoining areas, that seek to include, but are not limited to, the following: 
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a) Develop a place where visitors feel welcome and the design gives expression to the precincts underlying historical significance. The design and programming of the space should provide visitors with an opportunity to experience the physical reality of early European settlement and the type of environment that existed prior to European settlement; b) Develop a place where visitors enjoy the combination of beach, ocean, endemic vegetation, natural and modified limestone landforms, historic buildings, cultural activity and creative arts. The precinct should offer the visitor physical pleasure and relaxation, information about a place of considerable cultural significance, creature comforts and amenities, and, importantly, an emotional experience. c) Develop the J-Shed precinct as a transition zone that links Bathers Beach with the maritime character associated with the Slip Street Precinct and Victoria Quay; d) Identify short, medium and long term urban design and servicing of the J-Shed studios in liaison with existing tenants; e) Improve the presentation of J-Shed to the surrounding spaces including to Fleet Street, Bathers Beach and the Arthur Head areas to the east; f) Improve the pedestrian movements between Bathers Beach through to the Slip Street Precinct and Victoria Quay beyond, in liaison with Fremantle Ports, TAFE and any other identified stakeholders; g) Provides a legible northern gateway and pedestrian access point to Bathers Beach; h) Develop proposals that reveal, conserve, and interpret archaeological sites in the vicinity; i) Provide improved and unrestricted pedestrian connectivity between the J-Shed precinct and the elevated areas of Arthur Head to the east; j) Address any unpleasant microclimate implications of the open space areas as far as reasonably possible and include appropriate urban design and landscape responses that can diminish the impact of the hot summer sun and strong sea breezes on the precinct, aiming always to establish a more enjoyable foreshore experience; k) Develop a landscape palette that assists with the creation of shade, protection from strong winds, and references the original coastal and limestone outcrop environments. Include materials that reflect and amplify the original materials and form of the headland. Maintain or remove existing vegetation as deemed appropriate to establish a quality and sustainable landscape, including the existing Norfolk Island Pines in Fleet Street. l) Improve pedestrian pathways and routes in the Bathers Beach precinct and the Whalers’ Tunnel to accommodate the anticipated increase in public and commercial activity in the area and to improve public safety and amenity; m) Develop an interpretation strategy for the precinct to include and highlight the indigenous and non-indigenous cultural significance; n) Improve public parking in the precinct and adjoining areas to serve the precinct generally and the lease area specifically, including
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identifying any parking arrangements that may be required as a condition of planning approval in relation to the new development; o) Improve way-finding between the proposed development and other key activities including the passenger rail station and other forms of public transport, public car parks, and nearby precincts such as the West End, Victoria Quay, Bathers Beach, the Fishing Boat Harbour and the Esplanade Reserve; p) Includes appropriate reinstatement of a portion of the J-Shed and, where appropriate, new low profile and architecturally sensitive additions that do not detract from the important outlooks above the cliffs; q) Improve lighting of the precinct, including the foreshore, without causing glare at public viewing points above the cliffs; r) Provide adequate protection from coastal forces and sea level rises as required; s) Ensures improvements are made for the long term and not just for the lifespan of the lease.” 
The following comment was provided by the City Business Directorate in relation to the lease and its relationship to the applications for planning approval: 
“The resolution for approval of the lease with Sunset Venues also sought the City to undertake the development of a concept plan for the landscaping of the surrounds to the J Shed precinct and to better define linkages between Bathers Beach and Victoria Quay.   The City engaged CODA Architects to develop these concept landscape plans to provide consistency with the proposed development of Unit 1 J Shed by Sunset Venues. The development plans submitted by CODA for Sunset Venues includes elements of the concept landscape plans developed as part of that process. The intention of developing a landscape concept is for the City to consider these plans once the development of J Shed is confirmed. The City will then need to consult with Council and stakeholders in the area to finalise and cost this concept plan with the intention to allocate funding in the forward budget to align with any approved development for unit 1. If Sunset Venues does not undertake development of unit 1 by the cut off period required under the lease, the City will refine the concept landscape plan to take this into account.” 
CONCLUSION
The proposed partial change of use to Tavern (including live music), additions and alterations to existing building at J Shed Unit 1/Fleet Street (Lot 2051), Fremantle, has been assessed against the provisions of LPS4 and Council’s Local Planning Policies. 
As the proposal is contained within land reserved under the Metropolitan Region Scheme (MRS) as ‘Parks and Recreation’, the City acts only in the capacity as a referral body providing a recommendation to the determining authority, being the Western Australian Planning Commission (WAPC).  
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As the proposal relates to reserved land under the MRS, the provisions of the City’s Local Planning Scheme No. 4 (LPS4) and Council’s Local Planning Policies (LPP’s) do not apply, but can and have been used as a guide in assisting Council in formulating its position for its recommendation to the WAPC. 
The proposal is considered to be generally consistent with the provisions of Council’s LPP’s, however it is probable that some amenity impacts may result to the immediate locality, including car parking and noise. 
It is recommended that a number of conditions be imposed, to ensure compliance with a number of development aspects, including heritage. 
The proposal is considered to warrant a recommendation for conditional approval to the WAPC for their determination. 
OFFICER'S RECOMMENDATION
That the application be REFERRED to the Western Australian Planning Commission with a recommendation for APPROVAL under the Metropolitan Region Scheme for the proposed partial change of use to Tavern (including live music), additions and alterations to existing building at J Shed Unit 1/Fleet Street (Lot 2051), Fremantle, subject to the following conditions:  
1. This approval relates only to the development as indicated on the approved plans dated 1 April 2016. It does not relate to any other development on this lot. 
2. Prior to the issue of a building permit, amended plans and information are to be submitted and approved that address the following heritage concerns: a) The low limestone wall should be replaced with a landscaping structure that more obviously communicates the impression of a cliff and accurately follows the line of the turn of the century cliff line.  b) The proposed fencing to the boundary of the lease area is deleted and does not form part of the approval . There should be no permanent fencing that would prevent the establishment of strong visual links between the site and Bathers Beach (and the reverse). c) Ground levels should remain unaltered. d) There should be no grass to the south of the new limestone interpretive wall. The area should be a natural beach landscape. e) The new shade structure proposed for the west side of J Shed should not be fixed to the building, but instead should be supported on a complete freestanding structure. The changes required above as part of amended plans are to be to the satisfaction of the Western Australian Planning Commission, upon advice from the Chief Executive Officer, City of Fremantle.   3. The Tavern hours of operation are limited between the following hours: a. Monday to Saturday – 11:00am to 12:00am (midnight) b. Sunday - 11:00am – 10:00pm 
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4. Up to twelve (12) ticketed music concert events per year, to be held on any day of the week, which are to commence at no earlier than 12:00pm (midday) and conclude no later than 10:00pm that same day, of which is to not exceed 5 hours in length with a maximum number of 1,500 patrons at any one time, with any sound checks only permitted on show day and are not exceed 90 minutes in length. 
5. All other uses incidental to the Tavern hereby approved, but not being a ticketed music concert, are limited to weekends and public holidays and are to commence at no earlier than 12:00pm (midday) and conclude no later than 10:00pm that same day with a maximum number of 850 patrons at any one time. 
6. Prior to commencement of the use of the site, the applicant is to submit and have approved by, the Chief Executive Officer, City of Fremantle, an access management plan which addresses how event patrons, goods and materials, as required for events, will be transported to and from the site, in the event that access cannot be obtained via Fleet Street. 
7. An Archaeological Management Strategy that meets the satisfaction of the Executive Director of the State Heritage Office is to be developed and applied to the works, to the satisfaction of the Western Australian Planning Commission, upon advice from the State Heritage Office. 
8. The works hereby approved shall be undertaken in a manner which does not irreparably damage any original or significant fabric of the building.  Should the works subsequently be removed, any damage shall be rectified to the satisfaction of the Chief Executive Officer, City of Fremantle.    9. Prior to occupation, the development hereby permitted shall be connected to an approved effluent disposal system.    
10. Prior to the issue of a occupation, the owner is to submit a waste management plan for approval detailing the storage and management of the waste generated by the development to be implemented to the satisfaction of the Chief Executive Officer, City of Fremantle.   11. All storm water discharge shall be contained and disposed of on site or otherwise approved by the Chief Executive Officer – City of Fremantle. 
Advice Notes: 
i. The applicant is strongly encouraged to continue ongoing meetings with both the City and the Fremantle Port Authority before and after planned live music events to ensure that they are appropriately managed and all factors are duly considered, largely as they relate to any associated impact upon the operation of the Fremantle Port Authority and its land holdings. Any issues that may be identified should be addressed by the applicant, as far as practicable to ensure the safe, efficient and effective operation of the port itself is maintained. 
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ii. The proponent must make application to establish the food business – tavern – so that the premises comply with the Food Act, Rood Regulations and the Food Safety Standards incorporating AS4674-2004 Design, construction and fit-out of food premises. Submit detailed architectural plans and elevations to the City’s Environmental Health Services for approval prior to construction. The food business is required to be registered under the Food Act 2008. For enquiries and a copy of the application form contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856. 
iii. The proponent must make application during the Building License application stage to the City’s Environmental Health Services via Form 1 - Application to construct, alter or extend a public building as a requirement of the Health (Public Buildings) Regulations 1992. If the proponent is granted approval to commence development the proponent must immediately make application to the City for a Regulation 18 noise notice under the Environmental Protection (Noise) Regulations 1992. For enquiries and a copy of the application forms contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856. 
iv. The applicant is advised to contact the Department of Aboriginal Affairs (DAA) on (08) 6551 8092 to discuss any statutory requirements that may be required to be undertaken and/or fulfilled by them under the Aboriginal Heritage Act 1972. This may include advising the South West Land and Sea Council of the proposed works, of which should be confirmed with the DAA. 
v. The DAA has advised the City to advise the applicant that they have released the Aboriginal Heritage Due Diligence Guidelines to assist developers with planning and considering Aboriginal heritage during proposed works. A copy of the guidelines can be found on the DAA website as: http://www.daa.wa.gov.au/globalassets/pdf-files/ddg  
vi. The applicant is advised that the Department of Environment Regulation (DER) has recommended that management of ground disturbing works at the site include contingency measures for unexpected unearthing of asbestos or contamination, to eliminate any potential health risks to workers or the public. In the event that the development activities detect or unearth asbestos-containing-material or contamination at the site, any potential exposure risks should be immediately mitigated and the site should be investigated without delay in accordance with Department of Environment Regulation’s Contaminated Sites Guidelines. 
vii. J Shed building must be connected to sewer to remove all liquid waste – i.e. from bars, kitchens, grease traps, toilets – from the building. For enquiries contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856. 
viii. All rubbish and recycling receptacles to be stored in a secure location to temporarily store all waste materials prior to collection. For enquiries contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856.
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ix. The applicant must apply and pay for Liquor Control Act s.39 Health Certificate prior to operation of the building. For enquiries contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856. 
x. The applicant must apply and pay for an “entertainment event/venue” approval under Environmental Protection (Noise) Regulations at least 60 days prior to the first event date and/or venue use. For enquiries contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856. 
xi. The performance stage should face in a direction that will significantly disperse sound energy emitted by amplified music first to the ocean and second not towards on-shore residents (NSRs). For enquiries contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856. 
xii. The applicant should voluntarily reduce the sound level of amplified music should to a level that is not unreasonable at the closest noise sensitive receivers (NSRs) – see table 4.4 in noise monitoring report attached. For enquiries contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856. 
xiii. The applicant must investigate and report on the suitability of other sound attenuating materials inside the event venue and the J Shed building’s other tenancies that will deflect unreasonable noise away from noise sensitive receivers (NSRs) at J Shed tenancies and the residences of the west end. For enquiries contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856. 
xiv. The applicant must investigate and report on the predicted modelling of sound levels at noise sensitive receivers (NSRs) where the mixing desk level is agreed to be set at lower sound emission levels that are below or similar to those reported in Table 4.4 of “EcoAcoustics J Shed Concerts Sunset Events Event Noise Control Report” dated 10 May 2016. This Environmental Health advice is based on the sound levels in Reg 18(8) that would attract a noise monitoring fee in the attached flow chart. For enquiries contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856. 
xv. Should agreement not be reached between the applicant and the Chief Executive Officer, City of Fremantle then the CEO should inform the applicant of a proposed ‘ancillary condition’ stating the measures the applicant will do to remove NSRs from areas of high noise during performance of amplified music, i.e. the amelioration package previously conditioned in typical City of Fremantle Reg 18 noise notices. For enquiries contact the City’s Environmental Health Services by email health@fremantle.wa.gov.au or telephone 9432 9856.  

 

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