THE decision to reject the relocation of Bunbury bulk gourmet food store Rusticana to the Homemaker Centre was upheld by a split City of Bunbury council last night, despite pressure from the State Administrative Tribunal and fears of Supreme Court legal action.
Council rejected the proposal in February on the grounds Rusticana did not fit with the centre’s mixed business zoning.
The proposed business is identified as a food ‘shop,’ which is not allowed in the zone.
But the decision was appealed by the State Administrative Tribunal, who indicated council should reconsider in light of additional information provided by representatives of Rusticana.
During a briefing last week, City planning and development services director Bob Karszkewych warned councillors debating whether to maintain their position of potentially costly legal action.
He said there was no precedent on hand to advise on the outcome.
"Any decision of council is theoretically capable of being challenged at the Supreme Court - but this is the only one council seems to be urged to worry about though, for some reason."
- Planning Solutions associate director Ben Doyle.
During the meeting last night, the public, media and Mayor Gary Brennan - who declared an interest in the matter - were ejected from chamber in order for council to hear confidential legal advice.
When the chamber was reopened Planning Solutions associate director Ben Doyle, representing Rusticana, told council the legal fears were "entirely out of proportion."
"Any decision of council is theoretically capable of being challenged at the Supreme Court - but this is the only one council seems to be urged to worry about though, for some reason," Mr Doyle said.
Mr Doyle echoed Rusticana owner Kelly Piacentini's statement that her business couldn't be classified as "100 per cent a shop" as her proposal involved an industrial-style boning room attached to a butcher shop, providing a "custom kill" service to farmers who wanted their own animals boned out.
Ms Piacentini drew a comparison between the retail shop-front approval of Ryan's Quality Meats in Halifax and her proposal.
"Therefore by your planning department's own admission Ryan's Quality Meats and my butchering operations can both be classified as industry.... my kitchen, boning room and cooking school collectively take up 17.5 per cent of the floor space, which is a permissible use on the Homemaker Centre site."
"I've listened and I empathise with what's going on here but I still believe this business is predominately a shop."
- City of Bunbury councillor Betty McCleary
Councilor Betty McCleary was unphased by the presentations or possible legal action, moving the motion to uphold council's previous decision.
"I've listened and I empathise with what's going on here but I still believe this business is predominately a shop," Councillor McCleary said.
"We [need] to stand our ground, we cannot always have a fear of SAT over our shoulder and we need to stick by what we believe to be true."
The matter is now expected to go back before the State Administrative Tribunal.
