AIRPORT LIQUOR PTY LTD and CITY OF WANNEROO
[2024] WASAT 26
•10 APRIL 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AIRPORT LIQUOR PTY LTD and CITY OF WANNEROO [2024] WASAT 26
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 13 FEBRUARY 2024
DELIVERED : 10 APRIL 2024
FILE NO/S: DR 127 of 2023
BETWEEN: AIRPORT LIQUOR PTY LTD
Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Town planning - Development application - Land use classification - Statutory construction - Deemed provisions
Legislation:
City of Wanneroo District Planning Scheme No 2, Sch 1, Sch 11, Sch 12, cl 1, cl 3.2, cl 3.1, cl 3.3, cl 3.3(2), cl 3.3(4), cl 6.1.1, cl 6.1.2(a), cl 8(d), Pt 3, Pt 6
Interpretation Act 1984 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Scheme) Regulations 2015 (WA), Sch 1, Sch 2, cl 1, cl 60, cl 61, cl 64, cl 67(1), cl 67(1)(a), Pt 7
Planning and Development Act 2005 (WA), s 4(1), s 68, s 68(2), s 257A, s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 29(1)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
| Applicant | : | M Flint |
| Respondent | : | CA Slarke |
Solicitors:
| Applicant | : | Flint Legal |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
Castle and City of Rockingham [2018] WASAT 98
Goldfield Villages Pty Ltd and City of Kalgoorlie-Boulder [2023] WASAT 6
Newco Mills Pty Ltd and Presiding Member of the Metro Outer Joint Development Assessment Panel [2021] WASAT 160
Taylor and Western Australian Planning Commission [2023] WASAT 16; (2023) 108 SR (WA) 307
Van der Feltz v City of Stirling [2009] WASC 142; (2009) 167 LGERA 236
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These reasons deal with a question of statutory construction as to the classification of a land use located at 1954 Wanneroo Road, Neerabup (Subject Land). The land use involves the keeping of caravans, boats, trailers and camper trailers on the Subject Land (Development).
The City of Wanneroo (City or Respondent) considers that the Development is properly classified as a 'car park' under the City of Wanneroo District Planning Scheme No 2 (DPS 2) which is a prohibited use in the Rural zone and thus cannot be approved. Against this, Airport Liquor Pty Ltd (the Applicant) submits that the Development is an innominate use under DPS 2 which is capable of approval.
The parties have agreed two preliminary issues for determination that flow from this contest. The first of these issues is the correct classification of the Development. The second related issue is whether the Development is capable of approval under DPS 2.
For the reasons that follow, the Respondent's submissions should be accepted. The Development is properly classified as a 'car park' which is a prohibited use in the Rural zone.
Background facts
The following facts are agreed. I therefore find as follows.
The Applicant owns the Subject Land which has an area of 2.619 ha and is zoned 'Rural' in DPS 2 and in the Metropolitan Region Scheme.
On 21 June 2023, the Applicant sought retrospective approval under DPS 2 for the 'storage/parking of caravans, boats + trailers etc' on the Subject Land. That application was refused on the basis that the proposal was a 'car park' for the purposes of DPS 2. As stated, a car park is a prohibited 'X' use in the Rural zone.
By consent, the Applicant amended the application to be 'the licensing of space for the keeping of caravans, boats, trailers and camper trailers' (being the Development). The keeping of cars and motor homes was excluded from the Development.
The Development:
(a)involves the payment from members of the public for the keeping of a vehicle (or vehicles) on the Subject Land on a monthly basis;
(b)involves customers being designated a 'lot' for each vehicle they keep on the Subject Land. The lot (of which there are 220 on the Subject Land) is exclusively available to that customer for the duration of the agreement. Each lot is approximately 3 metres wide and 8 metres long; and
(c)can be accessed by customers each day between 6.00 am and 6.00 pm. There is a single-entry point, and the Subject Land is enclosed by a 1.8-metre-high fence. An electronic gate forms the entrance and entry is given by way of entry code. Subject to what I say below, the Subject Land is generally not bitumised. None of the lots available for lease are protected by any kind of structure or shelter.
While it was not an agreed fact as between the parties, it is apparent, and I find, that parts of the Subject Land are improved with structures (such as a dwelling), water tanks with some areas (closest to Wanneroo Road) bitumised.
Applicable planning framework
Principles of construction for DPS 2
DPS 2 commenced in 2001 and continues to have effect as if enacted by the Planning and Development Act 2005 (WA) (PD Act).[1] Having regard to the effect of ss 257B(3) and 68(2) of the PD Act, the deemed provisions, being the provisions contained in Sch 2 to the Planning and Development (Local Planning Scheme) Regulations 2015 (WA), are to be read as part of DPS 2. The deemed provisions commenced on 19 October 2015.
[1] PD Act, s 68.
If a deemed provision that has effect as part of DPS 2 is inconsistent with another provision, the deemed provision prevails and the other provision is, to the extent of the inconsistency, of no effect.[2]
[2] PD Act, s 257B(3).
DPS 2 has effect as subsidiary legislation and is therefore a 'written law' for the purposes of the Interpretation Act 1984 (WA). Accordingly, DPS 2 is to be construed according to the applicable principles of construction.
The task of constructing a planning scheme was explained by President Pritchard in Newco Mills Pty Ltd and Presiding Member of the Metro Outer Joint Development Assessment Panel,[3] as follows:
31The construction of a local planning scheme, which constitutes subsidiary legislation, involves determining the objective meaning of the terms used, by the application of recognised rules of interpretation to the text, understood as a whole and in its context. The meaning must emerge from the statutory text, understood in its context, but also having regard to the statutory purpose being pursued.
32It is well established that planning schemes should be construed broadly rather than pedantically, and with a sensible practical approach. That approach recognises that planning schemes are not usually drafted by parliamentary counsel and are often expressed in terms which lack the precision of a statute. That approach also recognises that the terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners, to identify the permissible uses of land to which a scheme applies. For that reason, the Court of Appeal has cautioned against placing a counter-intuitive judicial gloss on the plain language of planning schemes because to do so would reduce the capacity of the range of persons who use such schemes to comprehend their meaning. Nevertheless, the exercise of construction remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which, and purpose for which, it was enacted.[4]
Relevant scheme provisions
[3] Newco Mills Pty Ltd and Presiding Member of the Metro Outer Joint Development Assessment Panel [2021] WASAT 160 (Newco Mills) [31] - [32].
[4] Internal citations omitted.
DPS 2's purposes include, relevantly, to 'control and guide development …'.[5] The aims of DPS 2 include 'encouraging development' that '[provides] high standards of amenity, safety and welfare'. The term 'development' is defined in the PD Act to include, relevantly, both works[6] and the use of land.[7]
[5] DPS 2, cl 8(d).
[6] The term 'works' are defined in cl 1 of the deemed provision to mean —
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land; and
(b) the carrying out on the land of any excavation or other works[.]
[7] PD Act, s 4(1).
Part 3 of DPS 2 deals with zoning and the use of land. The zones are set out in cl 3.1, Table 2. The objectives of the Rural zone include, relevantly, to:
(a)maintain and enhance specific local rural character;
(b)protect broad acre agricultural activities such as cropping and grazing and intensive uses such as horticulture as primary uses, with other rural pursuits and rural industries as secondary uses in circumstances where they demonstrate compatibility with the primary use; and
(c)provide for a range of non-rural land uses where they have demonstrated benefit and are compatible with surrounding rural uses.
Clause 3.2 sets out that the zoning table for DPS 2 is found at Sch 1.
Clause 3.3(2) provides that a use that is identified as an X use in a particular zone means that the use, in general terms, is not permitted.
Clause 3.3 provides that a specific use class referred to in the zoning table is excluded from any other use class described in more general terms.
Clause 3.3(4) provides that the local government may, in respect of a use that is not specifically referred to in the zoning table and that cannot reasonably be determined as falling within a use class referred to in the zoning table:
(a)determine that the use is consistent with the objectives of a particular zone and is therefore a use that may be permitted in the zone subject to conditions imposed by the local government; or
(b)determine that the use may be consistent with the objectives of a particular zone and advertise under cl 64 of the deemed provisions before considering an application for development approval for the use of the land; or
(c)determine that the use is not consistent with the objectives of a particular zone and is therefore not permitted in the zone.
Uses that are not specifically defined in a planning scheme are often referred to as innominate uses.[8]
Defined terms
[8] Goldfield Villages Pty Ltd and City of Kalgoorlie-Boulder [2023] WASAT 6 [151].
Part 6 includes terms that are referred to in DPS 2. Relevantly, the following term is defined:
vehicle includes motorcycles, boats, caravans, trailers;
The following land uses are also defined:
car park means premises used primarily for parking vehicles whether open to the public or not but does not include —
(a)any part of a public road used for parking or for a taxi rank; or
(b)any premises in which cars are displayed for sale;
warehouse/storage means premises including indoor or outdoor facilities used for —
(a)the storage of goods, equipment, plant or materials; or
(b)the display or sale by wholesale of goods[.]
Part 7 of the deemed provisions deals with the requirement for development approval. Clause 60 provides that a person must not commence or carry out any works on, or use, land in the Scheme area unless either development approval has been obtained or development approval is not required pursuant to cl 61.
It is not in contest that the Development does not fall within any exemption in cl 60, and therefore development approval is required under DPS 2.
Under DPS 2, both a car park and warehouse/storage are 'X' (meaning prohibited) uses in the Rural zone. Pursuant to cl 67(1)(a) of the deemed provisions, development approval cannot be granted for an X use.[9]
[9] Deemed provisions, cl 67(1) allows the local government to approve an X use in specific circumstances relating to a non‑conforming use where the proposed development, even though it is an X use, will have less amenity impacts than the extant non‑conforming use.
Therefore, if the Development is properly classified as either a car park or warehouse/storage it is common ground that the City, and the Tribunal on review, has no discretion to approve it.
The Applicant submits that the Development does not fall within any specified use class and therefore, pursuant to cl 3.3(4) in DPS 2, should be treated as an innominate use.
As an innominate use, the Development can be approved if I, on review, determine that the use is consistent with the objectives of a particular zone. If that is so, the use can be approved in the exercise of discretion.
The task before me is, then, essentially a question of statutory construction having regard to the agreed facts. It is that question to which I now turn.
Applicant's submissions
The Applicant's submissions focus on why the Development is neither a car park nor a warehouse/storage.
Submissions as to why the Development is not a car park
The Applicant submits that the Development is not a car park for two independent reasons. The first is that there are no relevant 'premises' as is required under the definition of car park in DPS 2. The second is that the Development does not involve the 'parking' of vehicles.
The Development includes no 'premises'
The term 'premises' carries its ordinary and common meaning which is, relevantly: 'a house or building with the grounds, etc., belonging to it'.[10]
[10] Macquarie Dictionary Online.
The Applicant accepts that to meet the definition of 'car park' there need not necessarily be 'a building'. However, it submits that some improvement of substance is required to the land on which the vehicles are parked for the requirement of 'premises' to be met.
If it had been intended that a development could be a 'car park' for the purposes of DPS 2 without any improvement of substance to the land on which the vehicles are parked, then the term 'land'[11] (not 'premises') would have instead been used. The Applicant submits that there has been a 'conscious choice' by the drafter to use the word 'premises' which means 'something more than land – something of substance' is required.[12]
[11] For the purposes of DPS 2 (see clause 6.1.2(a) of DPS 2), 'land' is defined in s 4(1) of the PD Act as 'includes —[12] ts 3, 13 February 2024.
The Applicant also submits that the fence at the perimeter around the Subject Land is not an improvement of sufficient substance for the requirement of 'premises' to be met.
As the requirement for 'premises' for the definition of 'car park' is not met, the Development is therefore not a 'car park'.
The Development involves no 'parking'
The term 'park' carries its ordinary and common meaning which is, relevantly:
…
7.a parking spot for a motor vehicle: to get a good park.
-verb (t) 8. to put or leave (a car, etc.) for a time in a particular place, as at the side of the road[.][13]
[13] Macquarie Dictionary Online.
The Applicant submits that 'parking', for the purposes of the definition of 'car park', involves vehicles being left for a time, on a temporary basis, by drivers, who return at a later time to collect their vehicles, with the vehicles being kept elsewhere. The circumstance where vehicles are kept on land and returned to that land after use is not 'parking'.
Rather than 'park', the keeping of vehicles on the Subject Land is more akin to such vehicles being 'storage'.
The ordinary and common meaning of 'store' is:
…
13.to deposit in a storehouse, warehouse, or other place, for keeping.
- phrase 14, in store,
a.kept in readiness for future use.
b.coming in the future: I did not know what was in store for me.
c.deposited in a warehouse until needed.[14]
[14] Macquarie Dictionary Online.
The Applicant submits there is a clear distinction between the terms (uses) 'parking' and 'storing' in the context of 'vehicles' for the purposes of DPS 2 – they are not used interchangeably and have different meanings.
This distinction is expressly recognised in the definition of 'vehicle wrecking' in DPS 2, with that use being defined as meaning:
… any land or building used for the storage, breaking up or dismantling of motor vehicles and includes the sale of second-hand motor vehicle accessories and spare parts.
As the Development involves vehicles being kept on the Subject Land and returned after use, it does not involve 'parking', and therefore is not a 'car park', for the purposes of DPS 2.
Submissions as to why the Development is not a 'warehouse/storage'
The Applicant submits that the Development is not a 'warehouse/storage' land use under DPS 2 for two independent reasons.
The first is that there are no relevant premises on the Subject Land. The second is that the Development does not fall within the terms of the definition of 'warehouse/storage' in DPS 2.
The Development includes no 'premises'
As noted above, the term 'premises' is relevantly defined to mean: 'a house or building with the grounds, etc., belonging to it'.
The Applicant submits that for the requirement of 'premises' to be met for the purposes of the definition of 'warehouse/storage' there needs to be a physical structure, either indoors or outdoors, within which the storage, display and/or sale takes place.
The inclusion of the term 'facilities' in the definition of 'warehouse/storage' only serves to reinforce the requirement for a physical structure within which the storage, display and/or sale takes place.
The ordinary and common meaning of 'facility' is: 'a building or complex of buildings, designed for a specific purpose, as for the holding of sporting contests, launching of rockets, etc'.[15]
[15] Macquarie Dictionary Online.
The Applicant submits that because the Development does not have any physical structure on the Land within which storage, display and/or sale takes place, the requirement for there to be 'premises' for the purposes of the definition of 'warehouse/storage' is not met.
Because there are no 'premises' on the Subject Land, an essential requirement of the definition of 'warehouse/storage' is not met, and consequentially the Development cannot be classified as 'warehouse/storage'.
The Development does not fall within either paragraph (a) or (b) of the definition of 'warehouse/storage'
Because the Development does not involve 'the display or sale by wholesale of goods', only the use specified in (a) of the definition of 'warehouse/storage' arises for consideration.
The Development does not involve 'the storage of goods, equipment, plant or materials'.
The ordinary and common meaning of the term 'equipment' is:
noun 1. anything used in or provided for equipping …
…
5.a collection of necessary implements (such as tools).[16]
[16] Macquarie Dictionary Online.
The vehicles kept on the Subject Land are not 'equipment'.
The term 'plant' is relevantly defined to include:
…
4.the equipment, including the fixtures, machinery, tools, etc., and often the buildings, necessary to carry on any industrial business: improved plant layout improves profitability.[17]
5.
a.the complete equipment or apparatus for a particular mechanical process or operation: the power plant of a factory.
b.the equipment, as for electricity, air conditioning, plumbing, etc., used in the functioning of a large building.
c.heavy-duty machinery and vehicles, as earthmoving equipment, bobcats, tip trucks, pumps, loaders, etc.
[17] Macquarie Dictionary Online.
The Applicant submits that the vehicles kept on the Land do not come within the term 'plant'.
The ordinary and common meaning of the term 'material' is, relevantly:
noun 1. the substance or substances of which a thing is made or composed.
2. any constituent element of a thing.
3.anything serving as crude or raw matter for working upon or developing.
…
6.a textile fabric.
7.(plural) articles of any kind requisite for making or doing something: writing materials.[18]
[18] Macquarie Dictionary Online.
The Applicant submits that the vehicles kept on the Land do not come within the term 'materials'.
The ordinary and common meaning of the term 'goods', is, relevantly:
plural noun 1. possessions, especially movable effects or personal belongings.
2.articles of trade; wares; merchandise, especially that which is transported by land.
…
5.goods and chattels,
a.all movable properties.
b.Colloquial all one's possessions.
The Applicant considers, leaving to one side the context, it is arguable that the vehicles kept at the Subject Land do come within the meaning of the term 'goods'. However, the context is that all the other items within the definition of 'warehouse/storage' have a commercial aspect to them, including 'goods' within (b) of the definition as they are for 'display or sale by wholesale', with the consequence that 'goods' in (a) of the definition must also have a commercial meaning.
As the vehicles kept on the Subject Land are expressly 'not used for commercial purposes', they are not 'goods' for the purposes of paragraph (a) of the definition of 'warehouse/storage'.
Therefore, the Development does not fall within (a) or (b) of the definition of 'warehouse/storage'.
As the Development is not within (a) or (b) of the definition of 'warehouse/storage', it cannot then be classified as 'warehouse/storage'.
Therefore, as:
(a)the only uses referred to in the zoning table that the Development could be classified as are either 'car park' or 'warehouse/storage'; and
(b)the Development is not classified as either 'car park' or 'warehouse/storage', cl 3.3(4) of DPS 2 applies. The Development is thus capable of approval.
Respondent's submissions
The proper classification of the Development is a 'car park'
Having regard to the definitions of 'car park' and 'vehicle' in DPS 2, it is apparent that the Development involves the 'keeping' of 'vehicles' (being caravans, boats, trailers and camper trailers.)
The residual question is whether the Subject Land will be used primarily for the 'parking' of vehicles.
DPS 2 does not define what is meant by 'parking'. Accordingly, it should therefore be given its ordinary and common meaning which is:
noun 1. the act of someone or something that parks.
2.space in which to park vehicles.
3.permission to park vehicles.
- adjective 4. of, relating to, or used for parking.[19]
[19] Macquarie Dictionary Online.
The ordinary and common meaning of 'park' is, relevantly:
noun …
7.a parking spot for a motor vehicle: to get a good park.
- verb (t) 8. to put or leave (a car, etc.) for a time in a particular place, as at the side of the road.
9.Colloquial to place (something) somewhere until a later time: park your luggage there.
10.Colloquial to leave until a later time: to park shares in a fund[.]
The Respondent submits that the activities comprising the Development include:
(a)the Applicant accepts payment for the keeping of a vehicle or vehicles on the Land on a monthly basis;
(b)each customer has a designated lot for each vehicle they keep on the Subject Land; and
(c)during the currency of their agreement, customers may remove their vehicles from, and may return them to, the Subject Land at any time within the operational hours.
The defining activity comprised in the use is that customers' vehicles are put or left for a time in a particular place (i.e., in their licensed 'lot'). The vehicles are, therefore, parked on the Subject Land.
Each licensed lot is, in turn, a space in which to park a vehicle.
It necessarily follows that the use for which approval is sought involves the use of premises primarily for parking vehicles, and the correct classification of the use is car park.
Respondent's submissions as to why if the Development is not a car park, it is instead a 'warehouse/storage'
In relation to the Applicant's contention that vehicles are 'stored' on the Subject Land, rather than 'parked', the Applicant seeks to establish that a car park is a place where vehicles are left on a temporary basis, whereas the Development involves the 'storage' of vehicles after they are used from time to time.
The Respondent denies that the temporal distinction the Applicant seeks to make has the effect of removing the Development from the car park use class.
However, if the Tribunal finds that the vehicles are 'stored', not 'parked' on the Subject Land, the Respondent nevertheless submits that the use falls within the use class 'warehouse/storage', which is defined in DPS 2 as follows:
warehouse/storage means premises including indoor or outdoor facilities used for -
(a)the storage of goods, equipment, plant or materials; or
(b)the display or sale by wholesale of goods[.]
The word 'goods' is a broad term that includes:
… possessions, especially moveable effects or personal belongings.[20]
[20] Macquarie Online Dictionary; see also Castle and City of Rockingham [2018] WASAT 98 [116].
The vehicles that are stored on the Subject Land are possessions and are both moveable effects and chattels.
The Respondent submits that if the use is not a car park it falls within paragraph (a) of warehouse/storage because the fundamental land use activity is the storage of goods (vehicles).
The Respondent therefore submits that the answer to the preliminary issue is that the Development is correctly classified as a car park, but if it is not a car park then it falls within warehouse/storage.
The consequence of both classifications is that the answer to the second preliminary issue is 'No'.
Consideration
The Development is properly classified as a car park
For the following reasons, the Development is properly classified as a 'car park' for the purposes of DPS 2.
While DPS 2 is a written law and takes effect as if enacted by the PD Act, it is to be read and applied, in the language of Newco Mills, broadly rather than pedantically, and with a sensible practical approach.
It is also the case that DPS 2 was likely drafted, at least initially at the time of its gazettal in July 2001, by persons other than parliamentary counsel.
The fact that from 2015, the deemed provisions and the model provisions[21] were in fact drafted by parliamentary counsel, does not, in my view, alter the requirement to read and apply planning schemes broadly and sensibly.
[21] Being the provisions contained in Sch 1 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) and having operate effect pursuant to s 257A of the PD Act.
In Australian Unity Property Ltd v City of Busselton (Australian Unity), the Court of Appeal recognised that:[22]
82… The terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies. Placing a counter-intuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.
83That is not to say that the statutory text is to be read divorced from its context and purpose. Context and purpose may affect the meaning of the language that Parliament has chosen to use. When the text is considered in its context, and having regard to the statutory purpose, it may be apparent that words are used with other than their ordinary meaning. The task of construction is not to make a fortress out of the dictionary. However, the meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.
84… the exercise remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which and purpose for which it was enacted.
[22] Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 (Australian Unity) [82] – [84] (Buss P, Murphy JA, Mitchell JA).
In my view, while the Applicant presents its case as orthodox, in that it focuses attention on the precise meaning of the words used, the overall tenor of its submissions does not accord with the direction that was provided by the Court of Appeal in Australian Unity.
That is to say, I consider that the construction advanced by the Applicant is not open based on the text and, as a consequence, would result in DPS 2 not being read and applied broadly and in a commonsense manner.
On the contrary, in my view, the construction advanced by the Applicant would produce an outcome that is not consistent with the evident purpose of DPS 2.
While it is accepted that the need to apply planning schemes broadly and not pedantically is just one canon in the construction exercise,[23] it is nevertheless important. The task of construction should not involve seeking to make a fortress out of a dictionary.
[23] Taylor and Western Australian Planning Commission [2023] WASAT 16; (2023) 108 SR (WA) 307 [212] – [215]; cf Van der Feltz v City of Stirling [2009] WASC 142; (2009) 167 LGERA 236 (Murphy J).
In my view, it is worth noting that local planning schemes are the central touchstone that the community has in understanding the land use planning arrangements that affect their land and their neighbourhood.
For this reason, planning schemes need to be read and applied in a manner that is comprehensible by the community. This point was expressly recognised by the Court of Appeal in Australian Unity. The Applicant's construction would, I find, place a counter intuitive gloss on the plain meaning of some of the defined terms in DPS 2.
I will explain why that is so.
The Development involves the 'parking' of 'vehicles'
Having regard to the definitions of 'car park' and 'vehicle' and reading and applying DPS 2 as a whole, it is my view that the Development is properly classified as a car park.
The chapeau of cl 6.1.1 of DPS 2 provides that if 'a word or expression used in this Scheme is listed in this clause, its meaning is as follows …'. That is to say, there is no room for context to alter the meaning of defined terms in DPS 2.[24]
[24] cf Sch 12, cl 1 of DPS 2.
DPS 2 defines a 'vehicle' to mean 'motorcycles, boats, caravans, trailers'. The inclusive nature of that definition is not without significance. It plainly captures what is intended to be kept on the Subject Land as part of the Development, being 'caravans, boats, trailers and camper trailers'.
I am therefore satisfied that the Development involves the keeping of vehicles. In fairness to the Applicant, it accepts that the Development relates to 'vehicles' as defined by DPS 2. In my view, but for the definition of 'vehicles', which I am bound to apply, the Applicant's overall construction may have more traction.
I also do not accept the Applicant's argument that the leaving of vehicles on the Subject Land has the result that such vehicles are not being 'parked'.
The leaving of vehicles on the Subject Land falls within the ordinary and common meaning of 'park' which relevantly means, to place something that is then left until it is collected at some later time.[25] The placement of the vehicles on the Subject Land involves the parking of those vehicles.
[25] Refer [70] above.
While at some level, the length that a vehicle is left in the same place might inform whether that vehicle is being 'parked' or 'stored', there is simply no such evidence in this case. The only evidence is that the 'lots' are leased on a monthly basis. It may be accepted that caravans, boats, trailers and camper trailers may, in general terms, be used less frequently than cars, but how often each is used will very much depend on the individual lessee.
However, even if used less frequently than cars, that does not, of itself, mean that the vehicles are not being parked. Whether a vehicle is being parked or being stored has a temporal element and is plainly a question of degree. However, as the Respondent observed, the operation of the Development is not materially different from the operation of longterm car parks at, say, Perth International Airport.
In any event, even if an individual lessee does intend to simply 'store' a vehicle on the Subject Land, that does not alter the fact that it is being stored in what is, for the purposes of DPS 2, a car park.
In my view, there is no warrant to read DPS 2 in a manner such that the vehicles that are present on the Subject Land are not, in fact, being parked on the Subject Land.
The Applicant's 'premises' argument ought not be accepted
It is also the case that there is no need for a car park to include specific, purpose-built improvements in order to be car parking 'premises'. I therefore do not agree with the Applicant's submissions in this regard. Such an implication does not arise from the definition of car park, nor can it be inferred as a matter of context.
In my view, in the context of DPS 2, no improvements of substance are required in order to park a vehicle. Furthermore, in the context of DPS 2, no improvements of substance are required for land to be used as a car park. If a local government seeks to ensure that a particular land use includes certain physical attributes, that is the precise role of a local planning scheme. DPS 2 includes no such requirements.[26]
[26] Sch 11 to DPS 2 includes requirements as to the number of car parking bays that must be provided for specified land uses. It does not include requirements for the land use 'car park'. Likewise, a 'car parking bay' is defined but includes no standards in relation to a 'car park'.
In my view, the use of the word 'premises' throughout DPS 2 is a good example of a legal instrument that has been drafted by planners in a manner which lacks the precision of parliamentary counsel. In the context of DPS 2, the reference to 'premises' appears to be a reference to, at times, land in a general sense and not any physical structure per se. For example:
agriculture - extensive means premises used for the raising of stock or crops, including outbuildings and earthworks but does not include agriculture – intensive or animal husbandry – intensive.
agriculture - intensive means premises used for commercial production purposes, including outbuildings and earthworks, associated with any of the following –
(a)the production of grapes, vegetables, flowers, exotic or native plants, or fruit or nuts;
(b)the establishment and operation of plant or fruit nurseries;
(c)the development of land for irrigated fodder production or irrigated pasture (including turf farms);
(d)aquaculture[.]
In both these examples, the reference to 'premises' plainly means to the land itself and not any improvements. That is evident not only by the very nature of the land use but also because the definition expressly includes reference to any outbuildings that may be present.
The point being that DPS 2 does not always refer to physical structures in its use of the term 'premises'.
I therefore accept the submission from Mr Slarke, counsel for the Respondent, that the use of the term 'premises' in the context of the land use definitions within DPS 2 is 'neutral' and:
… It simply describes the property or place where the land use is carried out. It's not used to imply any characteristics to that place. If the characteristics of a place are critical to the land use, then those characteristics are, in fact, described in the definition[.][27]
[27] ts 16, 13 February 2024.
In any event, it is also the case that the Subject Land does have improvements that relate to its use as a car park in that there is a 1.8metre-high mesh fence around its perimeter as well as an electric gate. Some of the driveways are also paved and as stated, there is also a dwelling.[28]
[28] Mr Flint, counsel for the Applicant, advised the Tribunal that he understood that the dwelling is the Applicant's residence, but he was not certain; ts 16, 13 February 2024.
It follows that, applying the ordinary canons of construction, including reading and applying DPS 2 in a broad and sensible fashion, consistent with its town planning purpose, I find that the Development is a car park because it involves the 'parking' of 'vehicles' on the Subject Land. I also find that the Subject Land is 'premises' used for car parking purposes.
If the Development is not a car park, it is nevertheless a warehouse/storage
Because I have found that the Development is properly classified as a car park, it is not strictly necessary for me to address the question of whether it would otherwise be classified as warehouse/storage. However, because the question was fully ventilated both in written submissions and oral argument, I will.
If I am wrong that the Development is properly classified as a car park under DPS 2, I would then find that it was a warehouse/storage land use. My reasons are as follows.
I have already addressed, and rejected, the Applicant's argument that the word 'premises' requires improvements of substance directed to a particular land use.
In my view, a 'vehicle' is a moveable possession or personal belonging and therefore falls within the ordinary and common meaning of 'goods'.[29]
[29] Refer [61] above for the definition of 'goods'.
While the Applicant accepts that vehicles would be regarded as 'goods', it nevertheless submits that in order to be a warehouse/storage land use, there must be a 'commercial' aspect to the goods being stored.
I must say I am not entirely clear as to the Applicant's submissions on this point, but I infer that what is meant is that what is being stored under paragraph (a) of the definition (namely, the goods, equipment, plant or materials) must be put to, or used as part of, some commercial enterprise.
Three things may be said about that submission. The first is that I do not accept that that there must be a commercial aspect to the nature of the goods being stored. A requirement that the stored goods have a commercial focus cannot be inferred from the terms of paragraph (a) of the definition.
Nor does the reference to the display or sale by wholesale of goods in paragraph (b) serve to import such a requirement. The 'or' that separates paragraphs (a) and (b) in the definition of warehouse/storage operates disjunctively.
In my view, it would be open for individuals to simply store personal items in a leased warehouse and for that use to be properly classified as warehouse/storage under DPS 2. Having regard to the terms of the definition, the fact that the goods are being stored without any commercial intent does not alter how the land use should be objectively classified.
The second is that the Applicant's detailed analysis of the meaning of each of the terms of the definition of 'warehouse/storage' does not alter that conclusion. On the contrary, the Applicant's construction results in a construction which distorts and considerably strains what I consider to be the plain meaning of what is a broad definition.
The land use 'warehouse/storage' in the context of DPS 2 simply means what it says. That is, 'warehouse/storage' in effect: is land or buildings used for the purpose of either: (a) storing goods, equipment, plant or materials or (b) for the display or sale of goods by wholesale. For the purposes of paragraph (a), the focus is on what is being stored, not the intention with, or purpose for, which it is stored.
The third is that, in any event, the Development itself does have a commercial focus. That is to say, the Development involves the payment of a lease fee to store 'goods' (being the vehicles in question).
Conclusion
In my view, the Development is properly classified as a car park for the purposes of DPS 2. If I were not satisfied that the Development was properly classified as a car park under DPS 2, I would instead find that it is classified as warehouse/storage.
Both a car park and warehouse/storage land uses are prohibited (X) uses in the Rural zone. It follows that there is no discretion for either the Respondent or, on review, the Tribunal to approve the Development.[30]
[30] State Administrative Tribunal Act 2004 (WA), s 29(1).
The application for review must be dismissed.
Orders
The Tribunal orders:
1.The application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
10 APRIL 2024
(a) land …'.
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