Aussie Muscle Cars Pty Ltd and City of Stirling - [2009] WASAT 76

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: AUSSIE MUSCLE CARS PTY LTD and CITY OF STIRLING [2009] WASAT 76

MEMBER: MR P McNAB (MEMBER)

HEARD: 20 JANUARY 2009

DELIVERED : 22 APRIL 2009

FILE NO/S: DR 394 of 2008

BETWEEN: AUSSIE MUSCLE CARS PTY LTD
Applicant
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning - Development approval - Preliminary question - Small specialist vehicle sales operation with no external display yard - Whether proposed use capable of approval - Land use classification - Whether proposal fell within use class 'Automotive and Marine Sales' - Principles of interpretation - Activity prohibited in industrial zone - Context of prohibition - Tribunal determined that proposed use fell within prohibited use class - Preliminary issue determined in respondent's favour - Words and phrases: 'display'

Legislation:

City of Stirling District Planning Scheme No 2, Table 1, Table 5
Interpretation Act 1984 (WA), s 19
Town Planning Regulations 1967 (WA)

Result:

Preliminary question answered in favour of the respondent; application for review dismissed

Category: B

Representation:

Counsel:

Applicant: Mr H Robinson
Respondent: Mr D Nicholson

Solicitors:

Applicant: Haydn Robinson
Respondent: McLeods Barristers & Solicitors

Case(s) referred to in decision(s):

Bridle and City of Stirling [2009] WASAT 62
Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] 1 Ch 119
Feyer v Jones and Caboolture Shire Council [2004] QPEC 10
Giardini and City of South Perth [2008] WASAT 172
J B Investments Pty Ltd and Valuer General [2006] WASAT 55
Jones v Feyer [2004] QCA 273; (2004) 135 LGERA 12
Miller and City of Stirling [2007] WASAT 247
Re Rouss 116 NE 782 (1917)
Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc [2000] NSWCA 65; (2000) 48 NSWLR 548
Vestey v Warrnambool City Council [2008] VCAT 963; (2008) 160 LGERA 204
WR Carpenter Properties Pty Ltd and Shire of Busselton [2005] WASAT 266

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This review was concerned with the preliminary issue of whether in an Osborne Park industrial zone a proposed relatively small unique car sales operation (selling so-called 'muscle cars') with no external display yard was to be properly classified as 'Automotive and Marine Sales'. Both parties agreed that the sale of vehicles would take place on the subject land, but was there a 'display and sale' of motor vehicles as contemplated by the City's town planning scheme? If so, the activity was prohibited in the relevant zone.
The Tribunal agreed with the City of Stirling that the proposed activity was to be so classified as 'Automotive and Marine Sales'. The proposed activity would therefore be a prohibited use.
The Tribunal disagreed with the applicant that the use class 'Automotive and Marine Sales' was, in effect, to be read down so as to only encompass the display of cars on premises visible from the street, with the objective of attracting custom by passing traffic.
The Tribunal concluded that, in a planning context, there was a relevant display of vehicles on the premises (albeit only in the closed warehouse part of the land) and, further, that there was no textual or other indication that would warrant reading down the use class as the applicant had argued.
As the proposed development was properly classified as 'Automotive and Marine Sales', it was prohibited under the City's town planning scheme and was incapable of approval. The development application was therefore refused.

Introduction: Issue to be determined

This matter comes before the Tribunal for the determination of a preliminary issue; namely, does the applicant's proposed use of the subject land, for the storage and sale of certain vehicles ('muscle cars'), fall within the use class 'Automotive and Marine Sales' under the City of Stirling District Planning Scheme No 2?
If the answer to this question is 'Yes', then it is common ground that the proposal may not proceed.

Procedural history

The preliminary issue arises out of orders of the Tribunal made on 22 December 2008. The review itself arises out of the City of Stirling's (City) refusal on 17 September 2008 of a change of use of the subject land to a use connected with automotive sales. The reason given for the refusal was that the coming into force, on 29 August 2008, of the City of Stirling District Planning Scheme No 2 Scheme Amendment No 492 made the proposed use a prohibited use in the relevant zone.
The matter has mainly proceeded by way of a joint statement of agreed facts prepared by the planners engaged by either side; Ms J Smithson for the applicant and Mr D Spencer for the respondent. At the hearing of the matter earlier this year, both parties were legally represented, with Mr H Robinson for the applicant and Mr D Nicholson for the respondent.
Both parties also submitted comprehensive written submissions on the issues involved.
I thank both the planners and the lawyers for their detailed, tailored and helpful submissions on both the facts and the law.

The subject land and its context

The subject land is Lot 1 on Strata Plan No 11797 comprising all that land in Certificate of Title Volume 1656 Folio 601 (No 39A Sarich Court, Osborne Park). Sarich Court is a cul-de-sac off King Edward Road with, according to the agreed statement of facts, 'relatively low traffic volumes relative to other through streets in Osborne Park'. The subject land is 972 square metres 'with a frontage of approximately 24 [metres] to Sarich Court'. The statement of facts further records:
The site was developed in the early 1980's with a single storey strata titled brick building designed and approved as one half of mirror imaged factory units/warehouses. The building on the site has an area of 479 [square metres]. Access to the building from Sarich court is via a single aluminium framed pedestrian door. This leads to an office section that provides an open plan office area, staff room, male and female powder rooms and a small bathroom. The office area has suspended ceilings with fluorescent lighting and carpet floor coverings.
The warehouse section is situated to the rear and is accessed via [two] roller doors visible from Sarich court. This area has a high truss, clear span design with concrete floors and a combination of fluorescent and halogen lighting.
Externally there is a [three] bay carport provided to one side plus [eight] open car bays located at the front.
Surrounding developments comprise similar strata titled industrial developments interspersed with larger industrial office, warehouse and factory developments.

Aussie Muscle Cars Pty Ltd

The applicant, Aussie Muscle Cars Pty Ltd (AMC), is the owner of the subject land. The agreed statement of facts sets out the nature of AMC's current business, its proposed 'transfer' from Frobisher Street and, consequently, the applicant's proposed use of the subject land, as follows:
AMC currently operates the business, with City approval, from premises situated at Lot 101, House Number 23 Frobisher Street, Osborne Park, some [two] kilometres from the proposed site.
The business is accessed via a battleaxe access driveway. AMC's cars at the [current] Frobisher Street premises are not directly visible from Frobisher Street (being situated at the rear of a building which sells clothing). However, the building in which the cars are sold is visible from Frobisher Street. Advertising signage displaying the business name has been placed on the façade of the building. Two pylon signs have also been erected on Frobisher Street which are clearly visible …
AMC sources and on sells primarily collectible cars, commonly referred to as 'muscle cars' ('business') and has sought approval from the City of Stirling … to sell the cars from the [subject land].
At the proposed site, there is no ability to view whatever cars housed inside the building from the street other than when the building's roller doors are open. Nor could cars be securely displayed in the paved area in front of the building, which has, in any event, been set aside to meet the parking requirements for the existing development.
The industrial unit does not have any glass windows into the warehouse, nor does the site contain an outdoor display area.
AMC is required by the Motor Vehicle Dealer's [sic] Licensing Board to have a licensed retail address, approved by a local Council, from which cars can be sold.
AMC does not rely on visual exposure to the street of cars being sold from the site.
Inspection of cars to be sold by AMC from the site will be by appointment only.
The 'muscle cars' we are dealing with will typically be expensive, secondhand Australian V8 models dating from the 1970s. Approximately 15 vehicles or so might be on offer. It is immediately apparent that AMC's proposed operation does not resemble a standard new or used 'car yard' as might be found on, for example, parts of nearby Scarborough Beach Road. In particular, motor vehicles will not be displayed outside of the warehouse, and will not be visible to the street. However, the current external signage is likely to be replicated at the new premises.

The planning framework

It is common ground that:
1)The review is governed by the City of Stirling District Planning Scheme No 2 (DPS 2).
2)The subject land is zoned 'General Industry' under DPS 2.
3)The City has classified the proposed use as 'Automotive and Marine Sales' under DPS 2.
4)The applicant disputes that characterisation.
5)If the proposed use is properly characterised as 'Automotive and Marine Sales' under DPS 2, then DPS 2 prohibits that use in the 'General Industry' zone (see Table 1 of DPS 2).
6)The prohibition came about by the coming into force, on 29 August 2008, of DPS 2 Scheme Amendment No 492 (Amendment 492).
7)Prior to that amendment, the proposed use would have been a discretionary use capable of approval (after advertising).
8)AMC's current business at 23 Frobisher Street, Osborne Park was classified by the City as 'Automotive and Marine Sales' under DPS 2 (as previously in force) and had received planning approval.
In DPS 2, 'Automotive and Marine Sales' is a use class defined to mean:
… the display and sale of new or second hand motorcycles, cars, trucks, caravans and boats or any one or more of them and may include such ancillary uses as approved by the Council.
By way of contrast, the corresponding definition in the Town Planning Regulations 1967 (WA) Appendix B, Model Scheme Text ('Schedule 1 Dictionary of defined words and expressions') is as follows:
'motor vehicle, boat or caravan sales' means premises used to sell or hire motor vehicles, boats or caravans; …
Of some further relevance might be Table 5 of DPS 2 dealing with parking requirements within the 'General Industry' and 'Mixed Business' zones, which fixes the requirements at '1 bay/30 [square metres of gross floor area]' plus '1 bay/100 [square metres of] outdoor display area' (emphasis added). Here, of course, there is no 'outdoor' display area proposed for the subject land.
It is common ground that automotive sales are proposed for the subject land. The parties are in dispute as to whether the 'display' of vehicles in the applicant's configuration of the premises and in the manner proposed (see above) amounts to the 'display and sale of new or second hand motorcycles, cars, trucks', as is contemplated by the definition.
Although there is much discussion of the proper meaning of 'display' in these reasons, the Tribunal is nevertheless mindful that the word is part of a composite expression 'display and sale'. In Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] 1 Ch 119, Oliver LJ usefully reminds, as follows (at 144):
[F]or my part I do not think that the right way to apply a composite expression is, or at any rate is necessarily, to ascertain whether a particular subject matter falls within the meaning of each of the constituent parts, and then to say that the whole expression is merely the sum total of the constituent parts. In my judgment it is not necessary, in construing a statutory expression, to take leave of one's common sense …

Amendment 492

Amendment 492 to DPS 2 was initiated in October 2004 and, as has been mentioned, came into force on 29 August 2008. The stated aim of Amendment 492 at its initiation was, according to the agreed facts, 'to introduce a 'Mixed Business' zone into the City's industrial area of Balcatta and to revise the industrial scheme provisions and standards'.
Notwithstanding that an application for planning approval was lodged prior to the coming into force of Amendment 492, it is the case, as Mr Nicholson, for the respondent, submitted that 'the applicant does not have any accrued right to have its application determined on the basis of [the] law as it existed at the date upon which the application was lodged' - see Miller and City of Stirling [2007] WASAT 247; Giardini and City of South Perth [2008] WASAT 172 at [21].
AMC is not the only business affected by Amendment 492. Bridle and City of Stirling [2009] WASAT 62 (Bridle) recently dealt with the use classification 'Drive Through Fast Food Outlet' (inserted into DPS 2 by Amendment 492) in respect of an existing use (a takeaway coffee outlet) on land located at the corner of Guthrie Street and King Edward Road, Osborne Park. The site was dualzoned 'Service Station' and 'General Industry' under DPS 2. The existing use as a takeaway coffee outlet was prohibited in the 'Service Station' zone of that part of the land there under consideration (and under a previous use classification). The review of a decision by the City to refuse planning approval failed.
Here, the planners, in their joint statement of agreed facts (which may also be regarded as their joint opinions on certain matters), so far as is relevant, say this about how the applicant's business came to be regarded as being a prohibited use class:
[Amendment 492] initially arose in response to concerns that the City's industrial areas had increasingly seen the emergence of bulky goods showrooms of a retail nature and stand alone offices as opposed to 'the more traditional industrial manufacturing, processing and warehousing type of development', particularly on major traffic routes. Justification for the amendment was subsequently described in 2005 as being in response to 'emerging trends affecting the city's industrial areas, including for commercial businesses involving large showrooms seeking to locate in industrial areas on major traffic routes and the increase in retailing from established industrial premises'.
The City prepared an 'Industrial Areas [M]anagement Strategy' ('the Strategy') for the [two] major industrial zones of Balcatta and Osborne Park. The Strategy was adopted on 19 October 2004. Amendment 492 provides the statutory framework to implement these Strategies.
Amendment 492 was widely advertised for a period of three months, and the City distributed 8,000 public information brochures inviting comment on the proposed statutory changes.
Amendment 492 does not list 'Automotive and Marine Sales' as a permissible use in the 'General Industry' zone, meaning it is therefore a use that is not permitted … 'Automotive and Marine Sales' was formerly a use that could be approved with council discretion following advertising under DPS 2.
There is no background in the reports to the Council as to the reason for changing the permissibility of 'Automotive and Marine Sales' in the 'General Industry' zone. There is reference in Council's report of 15 August 2006 to the fact that various use classes listed in the zone[:]
'that were considered inappropriate have been removed in order to retain the focus on more traditional industry in these areas. The alterations also reduce the potential land use conflicts which arise in circumstances where potentially noisy, dirty and/or odorous industry abuts more customer-focused land uses.' …
Submissions were lodged during the advertising of Amendment 492 requesting that automotive sales still be permitted in the 'General Industry' zones.
In response to [those] submissions, Amendment 492 was modified following advertising to make the use of 'Automotive and Marine Sales' discretionary in the 'Mixed Business' zone and designated as an 'Additional Use' on lots from which automotive sales currently operated in the 'General Industry' zoned land in Harborne Street and east of the Mitchell Freeway in Scarborough Beach Road.
Certain existing businesses [previously] approved as 'Automotive and Marine Sales' within the 'General Industry' zone therefore remained conforming uses by the listing of 'Automotive and Marine Sales' as an 'Additional Use' on specific lots under Amendment 492. This included some lots not on Harborne Street or Scarborough Beach road.
[The draft of] Amendment 492 was therefore modified in response to objections from existing businesses involving automotive sales.
Amendment 492 also required that all development in the 'General Industry' zone comply with the 'General Industry and Mixed Business Design Guidelines' prepared and adopted by the City.
The proposed development of the site complies with these Guidelines.

Reference to extrinsic material

As is indicated by the extract set out immediately above, of some possible relevance to the central issue in this review is the background to the making of Amendment 492. This background is to be found in a number of documents referred to above. Both parties' counsel, in turn, referred the Tribunal to these documents and made submissions on their effect. Such material may be regarded, for statutory interpretation purposes, as potentially extrinsic material.
In elucidating the meaning of an instrument having the force of law (that is, DPS 2), regard may be had to such material in the circumstances referred to in s 19 of the Interpretation Act 1984 (WA). So far as is relevant, that provision is as follows:
19.Extrinsic material, use of in interpretation
(1)… in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material -
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b)to determine the meaning of the provision when -
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
In WR Carpenter Properties Pty Ltd and Shire of Busselton [2005] WASAT 266, the Tribunal drew a distinction between 'inexplicitness' and 'ambiguity'. The Tribunal applied Spigelman CJ's dictum in Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc [2000] NSWCA 65; (2000) 48 NSWLR 548, at [116]; 577-578, where His Honour said (internal citations omitted):
The use of the word 'ambiguity' in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is, for whatever reason, doubtful ... In cases such as the present, which involve reading down general words … I would identify the difficulty for the interpreter as one of 'inexplicitness' rather than one of 'ambiguity'.
Compare, with respect, Bell J's use of this case in a related context in Vestey v Warrnambool City Council [2008] VCAT 963; (2008) 160 LGERA 204, at [42].

However, here, in any event, Amendment 492 did not alter the definition of the use class 'Automotive and Marine Sales', only the consequences, so far as is relevant, of such a use class in respect of new activities carried on in the 'General Industry' zone. Such material cannot materially or usefully aid in the interpretation of the use class 'Automotive and Marine Sales' in the present case. In particular, the fact that some previously approved 'Automotive and Marine Sales' uses were specifically catered for by Amendment 492 (and some, such as AMC were not) seems immaterial to the core interpretative task of the Tribunal.
Clearly, whatever activities fell or fall within this remaining use class, these were or are to be regarded as inappropriate for land subject to 'General Industry' controls as and from 29 August 2008 (that is, the commencement date of Amendment 492). And, as for arguments from consequences, as Cardozo J once famously observed in Re Rouss 116 NE 782 (1917) at 785 (1917) '[c]onsequences cannot alter statutes, but may help to fix their meaning' (cited in, for example, J B Investments Pty Ltd and Valuer General [2006] WASAT 55 at [66]).

The respondent's contentions

In summary, Mr Nicholson, for the respondent, argues as follows:
1)'Display' has its ordinary and natural meaning (evident from dictionaries) which is 'to show', 'exhibit' or 'make visible', activities which can take place within or without premises. This is its use elsewhere in DPS 2 (for example, see the definition of 'Showroom'). Thus, there is no restriction limiting 'display' to the external display of goods. Where external (or outdoor) display only is in issue, DPS 2 invokes that qualifier (see, for example, Table 5 of DPS 2 dealing with parking requirements within the 'General Industry' and 'Mixed Business' zones, referred to above).
2)Further, 'display' should not be artificially limited to rule out, for example, internal (indoor) display or by the showing of goods by appointment only, or otherwise read as to require, say, visibility of the goods from the street. There is nothing in DPS 2 or any relevant other material that supports such a reading.
3)There will be, as a matter of fact, a 'display' in the warehouse section of the applicant's premises. Thus selling and displaying of goods will take place on the subject land.
4)To the extent that legislative purpose is in issue, the purpose of the prohibition effected by the operation of Amendment 492 was plainly the well-established 'planning objective of protecting the place of traditional manufacturing/processing and service industries within areas zoned for that purpose'.
5)That purpose would be, in effect, undermined by permitting a reading of the relevant land use classification in such a way that authorised AMC's commercial or trading activities of selling and displaying motor vehicles in the 'General Industry' zone.

The applicant's contentions

Mr Robinson, who appeared for the applicant, argued in reply essentially as follows:
1)As 'display' is not defined in the scheme, its ordinary and natural meaning should give way, to the extent necessary, to the context in which the word appears. Here, that context is conceptually derived from the words in the definition of 'Automotive and Marine Sales'. It is conceptually 'the display of cars visible from the street in which the [subject land is] situate, with the objective of attracting custom by passing traffic'.
2)The word 'display' where it appears elsewhere in DPS 2 does not necessarily have the same context as that offered by the definition of 'Automotive and Marine Sales'.
3)If Table 5 of DPS 2 dealing with parking requirements within the 'General Industry' zone elucidates the meaning of 'display' in the definition, then it contemplates outdoor display areas for such uses.
4)The 'planning objective of protecting the place of traditional manufacturing/processing and service industries within areas zoned for that purpose' would be best met by preventing the obvious commercial or trading activity in the prohibited field, namely cars visible to passing traffic. Thus, the prohibition should be read as limited to such outdoor automotive sales operations.
5)The unique nature of the applicant's business suggests that it is not one contemplated by the DPS 2 definition of 'Automotive and Marine Sales', as it relies upon interested parties making an appointment to inspect stored vehicles. Such vehicles are stored for delivery to buyers, not for display and sale in the manner envisaged by the definition.

Discussion of the case

Although Mr Robinson has come up with some ingenious arguments to suggest that his client's intended activity is outside of the use class definition, upon careful reflection I am satisfied that the respondent's arguments should be accepted and that the preliminary question should be answered in the respondent's favour. This conclusion has been reached for the following reasons.
The Macquarie Dictionary gives as its primary meaning for 'display' the following: 'to show; exhibit; make visible'. So too, in the legal context, Black's Law Dictionary (6th ed, 1991) at 471. All of these things will be done for customers of AMC in the warehouse part of the subject land. There may be storage there, but there will also consequently be 'display and sale[s]' on site. The application of the word 'display' in this context does not lead to an absurd or unreasonable result, at least in a planning context. (On the proper context, see Bridleat [23]: 'The context in which the [relevant terms] appear … is a town planning context'.)
Secondly, there is no reason why, in a planning context concerned with restrictions on land use, the ordinary concept of the display for sale of new or second‑hand vehicles should be confined to external car yards or operations with a visible display as is commonly observed throughout the State. If the maker of the instrument had so wished to limit the use class, it would have been relatively easy to do so by clear textual indication, as appears, for example, in Table 5 ('outdoor display area'). No such indication is present.
Thirdly, the Model Scheme Text definition with its focus on controlling a specified activity (selling or hiring) occurring on premises indicates, I think, the relevant conceptual underpinning of the use class. That is, I reject the applicant's contention that the conceptual underpinning of the use class is restricted to an operation attracting passing traffic, which necessarily triggers specified planning concerns, such as signage, access or parking.
It is axiomatic in planning law that land use is primarily divided by schemes into zones. This is a bedrock principle of 'orderly and proper planning'. Here, what is sought to be regulated by DPS 2 (as amended by Amendment 492) are essentially commercial or trading operations in an industrial zoning. The fact that certain specified exemptions have been made for some existing commercial or trading operations as a practical or policy choice only strengthens or confirms the effect of the intended prohibition for those not so exempted. These were the intended consequences. Reading down the use class so that some commercial or trading operations are considered not to be 'Automotive and Marine Sales' would undermine the regulatory objective so identified.
This would be not only bad policy, in my view it would also be bad law.
Finally, although it might be conceded that the applicant's particular proposed operation would produce, at this point in time, less in the way of actual concerns to do with matters such as signage, access or parking, it does not follow that these concerns will never appear in the future, depending upon the core industrial activities established over time in the zone. As a general proposition, regulatory concerns (including regulating land use conflicts) are better dealt with by standards developed for each zone or subzone tailored to the overarching zoning and the tied restrictions on land use. Here, DPS 2 was obviously intended to limit commercial and trading opportunities in this industrial zone, and the associated goal of developing appropriate regulatory standards connected therewith should not be undermined by making artificial exceptions to prohibited use classes.
If it is considered that the zoning and associated development controls result in inflexibility or are otherwise undesirable (see, for example, the discussion in Leslie A Stein, Principles of Planning Law (OUP, 2008) at 8 - 9; 34 - 37) then that issue must be addressed to the City and not this Tribunal.
In conclusion, I mention that I think that the Tribunal's approach in this case also generally accords with what Quirk DCJ wrote in the planning case Feyer v Jones and Caboolture Shire Council [2004] QPEC 10. His Honour refused an invitation to read down the concept of the 'public display of goods' as follows (at [11], emphasis added):
The respondent [land owners] sought to argue that what happens [at their home and art gallery] did not amount to the 'public display of goods' in that this concept really involves a display of goods in a manner which makes those goods visible from public areas. I reject that suggestion. The definition must be understood in its context. The exception to the prohibition upon non-residential use in residential areas which is allowed by a 'home occupation' ['no public display of goods on the premises'] requires appropriate co-existence of the use and the area's residential amenity. To disallow the public display of goods is intended to prevent the attraction of non-residents to the area. The tension with residential amenity to which this may lead needs little explanation and is demonstrated by the evidence given in this case. I am satisfied that the 'public display of goods' means simply the display of goods in a way that allows those goods to be inspected by members of the public (without any restriction upon right of entry) during normal business hours. This is what is happening.
Further proceedings in this matter are reported in Jones v Feyer [2004] QCA 273; (2004) 135 LGERA 12 (CA). There, the Court of Appeal, in an ex tempore decision, concentrated on whether the use was in fact a 'Shop' (their Honours held that it was) and dismissed the appeal (except as to the form of the orders made).
As the proposed development falls within the definition of 'Automotive and Marine Sales', it is not an unlisted use under DPS 2 and it is consequently unnecessary to address that issue raised by the applicant.

Orders

For the reasons set out above, the Tribunal makes the following orders:
1.The proposed development is properly classified as 'Automotive and Marine Sales' under the City of Stirling District Planning Scheme No 2.
2.The application for review is dismissed.
3.The decision of the respondent to refuse development approval of the applicant's proposed use is affirmed.

I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER