BRUHN and CITY OF JOONDALUP

[2014] WASAT 174

BRUHN and CITY OF JOONDALUP [2014] WASAT 174

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 174
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:196/2014	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MS N OWEN-CONWAY (MEMBER)	Delivered:	23/12/14
No of pages:	17	Judgment Part:	1 of 1
Result:	Limited term of grant of approval varied to remove limited term condition
Category:	B
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Parties:	PETER BRUHN DEIRDRE BRUHN CITY OF JOONDALUP
Catchwords:	Home business approval Grant of approval for a limited time of 12 months Impact of policy Proposed revised policy Seriously­entertained amendment to planning scheme Proposed revised policy purports to mandate outcome Validity of policy that restricts full exercise of wide discretion conferred by planning scheme Consideration of circumstances when limited term of policy is justified
Legislation:	City of Joondalup District Planning Scheme No 2, cl 3.2.2,  cl 4.4.3, cl 6.9, cl 6.8.1(g), cl 6.9.2, cl 8.11.3.1, Sch 1 Local Government Act 1995 (WA), s 1 - s 4 Planning and Development Act 2005 (WA), s 4, s 252 State Administrative Tribunal Act 2004 (WA), s 17, s 28(2), s 29(3)(b)
Case References:	Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142 NEAT Domestic Trading Pty Ltd v AWB Limited [2003] HCA 35; (2003) 216 CLR 277). Nicholls and Western Australian Planning Commission [2005] WASAT 40 Potter and Shire of Northam [2009] WASAT 118 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634). Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Reynolds v Redland Shire Council [2000] QPEC 93
Orders	On the application determined on the documents by Member Natasha Owen-Conway it is on 23 December 2014 ordered that:,Pursuant to s 29(2)(b) of the State Administrative Tribunal Act 2004 (WA), upon review of the respondent's decision to grant the applicants conditional approval to operate a Home Business - Category 3 (real estate office) from Number 26 (Lot 240) Banks Avenue Hillarys, referred to in the respondent's letter of approval and stamped plans dated 12 June 2014, the respondent's decision is varied so as to delete condition (j) thereto.
Summary	Mr and Mrs Bruhn applied for approval to operate a real estate business from their home in an area that was zoned residential.  The City of Joondalup District Planning Scheme No 2 was the subject of an amendment whereby the zoning of their property was to change from residential to mixed use. ,Both parties agreed that the proposed amendment was to be considered by the Tribunal and given significant weight as a seriously­entertained amendment to the Scheme.  The application for approval met all Scheme and policy guidelines.  The respondent, the City of Joondalup, proposed a new policy which restricted the grant of approval for Home Business - Category 3 type uses to 12 months or less.  ,The Tribunal concluded that the proposed new policy was ineffective to mandate the manner in which the broad discretion granted by the Scheme to the respondent should be exercised.  Further, the Tribunal concluded that there was no evidence to support the contention that a limited term of the grant was justified upon proper planning principles.  The decision to grant the approval on the condition that the applicants were permitted to operate their home business for no more than 12 months was varied to delete the condition imposing the 12 month term limitation.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BRUHN and CITY OF JOONDALUP [2014] WASAT 174 MEMBER : MS N OWEN-CONWAY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 23 DECEMBER 2014 FILE NO/S : DR 196 of 2014 BETWEEN : PETER BRUHN

DEIRDRE BRUHN
Applicants

AND

CITY OF JOONDALUP
Respondent

Catchwords:

Home business approval - Grant of approval for a limited time of 12 months - Impact of policy - Proposed revised policy - Seriously­entertained amendment to planning scheme - Proposed revised policy purports to mandate outcome - Validity of policy that restricts full exercise of wide discretion conferred by planning scheme - Consideration of circumstances when limited term of policy is justified

Legislation:

City of Joondalup District Planning Scheme No 2, cl 3.2.2, cl 4.4.3, cl 6.9, cl 6.8.1(g), cl 6.9.2, cl 8.11.3.1, Sch 1

Local Government Act 1995 (WA), s 1 - s 4
Planning and Development Act 2005 (WA), s 4, s 252
State Administrative Tribunal Act 2004 (WA), s 17, s 28(2), s 29(3)(b)

Result:

Limited term of grant of approval varied to remove limited term condition

Summary of Tribunal's decision:

Mr and Mrs Bruhn applied for approval to operate a real estate business from their home in an area that was zoned residential. The City of Joondalup District Planning Scheme No 2 was the subject of an amendment whereby the zoning of their property was to change from residential to mixed use.

Both parties agreed that the proposed amendment was to be considered by the Tribunal and given significant weight as a seriously­entertained amendment to the Scheme. The application for approval met all Scheme and policy guidelines. The respondent, the City of Joondalup, proposed a new policy which restricted the grant of approval for Home Business - Category 3 type uses to 12 months or less.
The Tribunal concluded that the proposed new policy was ineffective to mandate the manner in which the broad discretion granted by the Scheme to the respondent should be exercised. Further, the Tribunal concluded that there was no evidence to support the contention that a limited term of the grant was justified upon proper planning principles. The decision to grant the approval on the condition that the applicants were permitted to operate their home business for no more than 12 months was varied to delete the condition imposing the 12 month term limitation.

Category: B

Representation:

Counsel:

Applicants : Mr M Swift
Respondent : Ms A Butterworth

Solicitors:

Applicants : Michael Swift & Associates (Town Planners)
Respondent : Allerding & Associates

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142
NEAT Domestic Trading Pty Ltd v AWB Limited [2003] HCA 35; (2003) 216 CLR 277).
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Potter and Shire of Northam [2009] WASAT 118
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634).
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Reynolds v Redland Shire Council [2000] QPEC 93

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 On 3 April 2014, Mr Peter Bruhn and Mrs Deirdre Bruhn (applicants), as the owners of a residential dwelling at 26 (Lot 240) Banks Avenue, Hillarys (site), made an application to the City of Joondalup (respondent) for a grant of approval to operate a home business from the site. The proposed business is that of a real estate agency operated by the applicants and up to four employees (proposed home business). On 12 June 2014, the respondent granted the applicants' application on conditions, one of which is condition (j), is that the proposed home business could operate from the site for a period of 12 months from the date of the grant (12 June 2014) and thereafter, only on the grant of further approval by the respondent (reviewable decision).

The application

2 On 18 June 2014, the applicants lodged an application with the Tribunal seeking a review of the reviewable decision. The applicants seek an order from the Tribunal varying the reviewable decision so as to delete condition (j) to the respondent's grant of approval. Alternatively, the applicants seek an order from the Tribunal varying the terms of condition (j) itself.

Jurisdiction of the Tribunal

3 Section 252 of the Planning and Development Act 2005 (WA) (PD Act) provides:

(1) Subject to subsection (3), if -

(a) under a planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; and

(b) a person has applied to the responsible authority for such a grant; and

(c) the responsible authority has -


…

(ii) granted it subject to any condition,

the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority's decision.

4 The phrase 'responsible authority' is defined by s 4 of the PD Act to mean:

… in relation to a local planning scheme ... the local government responsible for the enforcement of the observance of the scheme[.]

5 The reference to the local government is a reference to a government established pursuant to the Local Government Act 1995 (WA) (s 1 - 4). In this proceeding the respondent is the relevant local government responsible for the enforcement of the observance of City of Joondalup District Planning Scheme No 2 (DPS 2).

6 This application is an application for review of a decision that falls within the Tribunal's review jurisdiction (see s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)) and is properly before the Tribunal.

Powers of the Tribunal

7 As this application falls within the Tribunal's jurisdiction the Tribunal is empowered to, inter alia, vary the reviewable decision (see s 29(3)(b) of the SAT Act).

Site and locality

8 The site is situated within the Local Government area of Joondalup. The respondent is the responsible authority for compliance with DPS 2. The site is located directly opposite Whitfords City Shopping Centre on Banks Avenue; is largely rectangular with a 21.670 metre street frontage and comprises 683m² of land. The site is developed with a single level dwelling with a garage and three rear outbuildings.

The issues

9 The parties are only in dispute in relation to the imposition of condition (j) to the grant of approval to operate the proposed home business from the site. The proposed home business meets all other definitional requirements of a Home Business ­ Category 3 and all other Home Business Policy preferences which Home Business Policy has been adopted by the respondent. The applicants contend that the Home Business Policy does not compel the respondent, to grant approval only for 12 months. Further, the applicants contend that the proposed Revised Home Business Policy (which is yet to be adopted by the respondent following advertising), to the extent that it compels the respondent to grant only a 12 month term for any approval for a Home Business ­ Category 3 use, is not a proper exercise of the discretionary power conferred on the respondent by DPS 2. The respondent contends that the proposed Revised Home Business Policy is a seriously­entertained proposal in keeping with the principles established by the Tribunal and as detailed in Nicholls and Western Australian Planning Commission [2005] WASAT 40 and that it is to be preferred as the directive on the length of the term of any grant for a Home Business - Category 3 use approval.

Planning framework

10 The site is currently zoned residential under DPS 2 and has a residential density code rating of R20. The applicants propose to use the site to operate a business falling with the definition in DSP 2 of 'Home Business - Category 3', which use is not permitted in respect of the site, unless approval is granted by the respondent. DPS 2 provides at cl 4.4.3:

Home Business – Category 3

4.4.3.1 A person wishing to conduct a Home Business – Category 3 on residential premises is required to apply to Council for an approval to commence development, and such use or occupation may be approved by Council at its discretion.

4.4.3.2 The provisions of the residential Design Codes and all other clauses in the Scheme relating to developments in a residential Zone shall apply to a Home Business – Category 3. Council may exercise its discretion and vary a provision of the Codes, except the minimum area of lot per dwelling prescribed in Column 3, Table 1 of the Codes.

11 'Home Business – Category 3' is defined in the in Sch 1 to DPS 2 to mean:

.. an occupation or professional practice undertaken for the purposes of commercial gain; and carried on in a dwelling or on land around a dwelling by a resident of the dwelling[.]

12 The definition of Home Business ­ Category 3 comprises a number of specific restrictions on the manner in which that business may be operated. None of the restrictions are in issue in this proceeding. Clause 6.9 of DPS 2 is headed 'Power to Determine Applications for Planning Approval' and identifies, relevantly:

6.9.1 The Council having regard to the appropriateness of any proposed application for planning approval may:

…

(c) grant approval subject to such conditions and requirements as it deems fit; …

…


6.9.2 Without limiting the generality of the foregoing, the Council may, where it deems appropriate, grant a Planning Approval which:

…

(b) permits the use and/or other development of land to occur for a limited period of time specified in the approval, after the expiration of which period the use and/or other development shall cease and unless otherwise stipulated by the Council the site shall be restored to the condition existing at the time when the Approval was given, unless a further Approval has been sought and obtained[.] (Tribunal emphasis)

13 The respondent has proposed amendments to DPS 2 and, in particular, Amendment No 73, which proposed amendment both parties agree, is a seriously­entertained proposal that should be given significant weight by the Tribunal in this proceeding. Clause 6.8.1(g) of DPS 2 directs that when considering an application for approval, the respondent shall have 'due regard’ in this matter to:

any relevant proposed new town planning scheme of the Council or amendment or proposed Metropolitan Region Scheme Amendment insofar as they can be regarded as seriously entertained planning proposals[.]

14 The critical change to DPS 2 which will be brought about by proposed Amendment No 73 is that the zoning of the site will change from residential to mixed use. The impact of changing the zoning of the site is that a Home Business - Category 3 use on a mixed use zoned site is a permitted use (designated by reference to the symbol 'P' in the Zoning Table as Sch 1 of DPS 2). Clause 3.2.2 of DPS 2 identifies that a 'P' in the Zoning Table indicates:

A Use Class that is permitted but which may be subject to any conditions that the Council may wish to impose in granting its approval[.]

15 Currently, DPS 2 Sch 1 provides that the site is zoned residential and Home Business – Category 3 us is not permitted (as designated by the symbol 'A' in the Zoning Table as Sch 1 of DPS 2). Clause 3.2.2 of DPS 2 provides:

A Use Class that is not permitted unless the Council has exercised its discretion and has granted planning approval after giving special notice in accordance with Clause 6.7[.]

16 Consistently with proposed Amendment No 73, the respondent has granted approval to the applicants' application for approval to operate the proposed home business from the site but has imposed a condition limiting the term that the proposed home business may be operated from the site.

17 It is common cause between the parties that such a condition is valid in the sense that it is of a kind that is permitted by the provisions of cl 6.9.2 of DPS 2.

18 The Tribunal notes that the submissions by the respondent and a number of the conditions imposed focus on minimising the impact of the operation of the proposed home business on the residential amenity of the surrounding area. This objective, however, is somewhat inconsistent with the fact that proposed Amendment 73 will alter the zoning of lots facing onto Banks Avenue, including the site from residential to mixed use. Having given significant weight to proposed Amendment No 73, the Tribunal concludes that the residential amenity to the surrounding area is less significant than the respondent's focus tends to suggest and less significant in light of proposed Amendment 73. With the advancement of proposed Amendment No 73, there will be a limit on the reasonable expectation of owners and occupiers of neighbouring lots to those along Banks Avenue, which are to be rezoned that the current residential amenity will continue.

19 The parties have referred the Tribunal to a Home Business Policy that has been adopted by the respondent to establish guidelines for the exercise of the respondent's discretion when assessing home business uses. The Tribunal notes that there is no statutory policy that the Tribunal is bound to apply as provided for by s 28(2) of the SAT Act. Relevantly, the Home Business Policy's aims are stated as:

(a) To maintain residential areas as primarily a place to live, not primarily a place to work whilst recognizing that working from home is an expanding area of employment, and a significant contributor to local employment.

(b) To protect the amenity and character of residential areas by ensuring that potential impacts associated with home business such as noise, traffic, pollution, people and advertising signs are minimised and adequately controlled.

…

(d) To provide a measure of the extent of the home business to ensure that it does not dominate the use of the land nor be so large or intensive that it changes the residential character of the neighbourhood.

(e) To guide the location of home business proposals to minimise any impact on the amenity and character of residential locations.


(Tribunal emphasis)

20 Relevantly, clause 3 of the Home Business Policy provides:

(l) When determining an application, the Council:

…

(ii) elect to grant an initial term of approval of twelve (12) months. In some instances where it is considered appropriate a longer period may be considered. The applicant is to seek renewals thereafter to effect the continuance of the home occupation[.]

Clause 3 (l)(ii) of the Home Business Policy, permits the respondent to 'elect' to grant only an initial term of 12 months and then clarifies that in some circumstances the initial term may be longer than 12 months. Clause 3(l)(ii) does not purport to limit the respondent to granting only 12 month approvals nor does it countenance the grant of successive limited terms of approval. At best it provides the respondent with the option of a grant of approval of one (that is, an 'initial') term of 12 months or where 'appropriate' longer. The intention of clause 3(l)(ii) of the Home Business Policy is clearly facilitative rather than restrictive or proscriptive. Further, the Tribunal concludes that the purpose of the policy of permitting the respondent to elect to grant an approval for use for an initial limited period is to assess whether the Home Business ­ Category 3 is likely to be able to continue to meet the restriction of the grant of approval. The Local Commercial Strategy - Part B - Shop Retail Assessment speaks of the need to ensure that the home business that is 'incubated' in the home does not grow to be incapable of operating within the restrictions of the home business of the category approved. For example, the documents speak of a home business that must, because of its success and growth, move from the home and into an area for appropriate commercial uses. The conditions to the grant of approval that are not in dispute adequately protect against the proposed home business growing to the extent that it cannot meet the definition of 'Home Business ­ Category 3' as provided for in DPS 2. If that were to occur, the applicants would not be using the site in accordance with the approval granted and would not be operating a Home Business ­ Category 3. The use would be an unapproved use at that point. If that were to occur, the respondent would be able to take all appropriate action to prevent the applicants from conducting an unapproved use from the site. The Tribunal concludes that the unobjectionable conditions comprised in the reviewable decision do not require and are not served by a probationary approval period for the proposed home business to be assessed as being one within the definition of Home Business ­ Category 3.

21 The respondent in its submissions (at paragraphs 20 and 21), asserts that the 12 month restriction on the grant of approval in this matter, is to assess the impact of the proposed home business on the amenity of the area and upon the amenity of the rear neighbour to the site. Whilst the Tribunal does not consider it to be an improper use of power to impose a condition where the impact of a proposed use in a particular respect may not be reasonably foreseeable, in this particular case, the respondent has failed to demonstrate that the foreseeability of the impact of the proposed home business on the amenity of the neighbourhood and on the rear neighbour is problematic in some way, such as to justify a limited period of approval.

22 The Tribunal concludes that clause 3(l)(ii) of the Home Business Policy expressly permits the respondent to make an election to grant an approval for use for an initial term of 12 months or longer, depending on the facts of the application. Clause 3(1)(ii) of the Home Building Policy does not compel or direct the respondent that it must or should only grant an approval for use for an initial term for 12 months. The Tribunal concludes that, properly construed, clause 3(l)(ii) of the Home Business Policy does not permit the respondent to make successive grants of approval for a particular use for a period of 12 months. Further, the Tribunal concludes that the election by the respondent would only likely be the correct and preferable decision where the proposed use genuinely required revision after 12 months, with a view to granting permanent or long term approval after that review.

23 The respondent has considered a revision of the Home Business Policy and resolved to adopt aRevised Home Business Policy for the purposes of public advertising (proposed Revised Home Business Policy). The proposed Revised Home Business Policy was advertised from 15 May to 5 June 2014 in accordance with cl 8.11.3.1 of DPS 2 and the agreed facts provide it is envisaged that the proposed Revised Home Business Policy will be considered by Council at some later stage.

24 The provisions of the proposed Revised Home Business Policy at clause 5.6 provide:

…

Any approval issued for a home business category 3 and renewal of a home business category 3 is valid for a period of 12 months or less, as determined by the City. Prior to the expiry of the approval, an application must be submitted and approved by the City to enable the continuation of the activity.

25 The question for the Tribunal is: what is the import of the Home Business Policy and the proposed Revised Home Business Policy? The parties appear to agree that as the proposed Revised Home Business Policy has reached the stage of consideration for final adoption by the respondent following advertising, it should be given significant weight by the Tribunal as a policy. Assuming that proposition is correct as a matter of law, the Tribunal must still determine the role of the policy in the decision-making process required DPS 2 in this matter.

26 A valid and lawful administrative policy generally should be applied unless there are cogent reasons to the contrary, including where the application of the policy will give rise to an injustice in an individual case (ReDrake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634). Where the respondent adopts a policy, the respondent must be satisfied that the policy itself is lawful and not inconsistent with the legislation which confers the statutory power upon the respondent (NEAT Domestic Trading Pty Ltd v AWB Limited[2003] HCA 35; (2003) 216 CLR 277). The application of the policy must not prevent the respondent from exercising the full extent of the legislative power conferred. In this matter, the policy must not restrict the respondent from exercising to the fullest extent to power conferred by DPS 2. Otherwise, a policy could affect a change to the local planning scheme that would not be in accordance with the means by which a scheme amendment must be affected. That is, a policy cannot affect a de facto change to the scheme but rather, must be consistent with the powers conferred by the scheme. The policy must be in aide of guiding the respondent in the exercise of a conferred discretion and not for the purposes of limiting the conferred discretion. Further, the policy must be exercised for the pursuit of proper planning principles (Lloyd v Robinson[1962] HCA 36; (1962) 107 CLR 142; Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission[2002] WASCA 276). The strict application of the policy without regard to the facts at hand may constitute a misconception of the exercise of the power conferred or a constructive failure to exercise the conferred power (see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57).

27 In every case, the Tribunal must consider the application of the policy to the facts of the matter before it. To simply apply a policy without regard to the merits of the matter at hand and whether in any matter the application is consistent with the provisions of DPS 2 and proper planning principles, would be an improper application of the policy. In this matter, clause 3(l)(ii) of the Home Business Policy has the status of a relevant factor which will assist the Tribunal, standing in the shoes of the respondent, to exercise the discretion conferred by cl 6.9.2 DPS 2. Further, because it has been adopted by the respondent, it should be given significant weight unless there the application would lead to an injustice.

28 The proposed Revised Home Business Policy in so far as clause 5.6 is concerned, by its restrictive and proscriptive terms, appears to demand that an application for approval to use a site for Home Business – Category 3 purposes can only ever be granted for 12 months (or less), regardless of the facts of the matter. To that extent the Tribunal considers that clause 5.6 is inconsistent with the conferral of the broad discretion by cl 6.9.2 of DPS 2, because it purports to bind the respondent to a self-imposed obligation to limit the exercise of the broad power conferred by cl 6.9.2 DPS 2. Further, clause 5.6 of the proposed Revised Home Business Policy has no meaningful application on the facts of this matter. Any proper planning purposes which clause 5.6 intends to advance are not obvious and have not been advanced by the respondent. The alleged matters of concern to the respondent that it will consider in 12 months' time - impact on the amenity of the neighbourhood, impact on the rear car park to the site on the rear neighbouring property and compliance with the other conditions of the reviewable decision - are matters that can be currently, reasonably foreseen and can be (and have been) dealt with by relevantly designed conditions to the grant of approval. Further, the provisions of clause 5.6 of the proposed Revised Home Business Policy does not disclose an intention that a limited grant of approval should be made initially so as to test any unforeseeable consequences of the approval, or to test the likelihood of compliance with the terms of the grant by the applicants. The respondent cites Potter and Shire of Northam [2009] WASAT 118 (Potter) and Reynolds v Redland Shire Council [2000] QPEC 93) in support. For the reasons expressed below, however, the Tribunal concludes that in citing these authorities, the respondent has failed to appreciate the significant difference between the facts of those matters ­ principally, that in each of those authorities, there was a genuine issue whether the use could operate within the terms of the approval which could only be determined conclusively, following a probationary period.

29 Further, clause 5.6 of the proposed Revised Home Business Policy stipulates that even subsequent grants of approval many not be for more than 12 months. The Tribunal concludes that clause 5.6 of the proposed Revised Home Business Policy is inconsistent with the proper planning principles of assessing whether the impact on the amenity of the neighbourhood can be minimised in practice. Rather, it is a clear directive that, contrary to the provisions of cl 6.9.2 of DPS 2, no Home Business ­ Category 3 use may be granted for longer than 12 months, regardless of the impact on the amenity or the merits of the application. In the Tribunal's view, such a clause is ultra varies, as it is inconsistent with the discretion conferred upon the respondent by cl6.9.2 DPS2. It is an attempt to amend DPS 2 without undertaking the process of amendment called for by DPS 2.

30 The Tribunal concludes that, in the case of clause 3(l)(ii) of the Home Business Policy, the provisions confer on the respondent the discretion to limit the initial grant of approval to use the site for a Home Business – Category 3 use to 12 months, and is consistent with the discretion conferred by cl 6.9.2 of DPS 2. However, strict application of that policy, regardless of the merits and where there is no reasonable need to reassess the impact of the proposed use on the amenity of the neighbourhood in 12 months' time, is not a proper exercise of the power conferred by cl 6.9.2 of DPS 2. The respondent is free in every case to assess whether the merits of the application and proper planning principles are best served by application of any policy as contemplated by the terms of DPS 2 and in particular, cl 6.9.2 of DPS 2.

Consideration

31 As stated above, the Tribunal notes as follows:

1) Proposed Amendment No 73 to DPS 2 has the effect of changing the zoning from residential to mixed use in the near future.

2) It is therefore envisaged that in the not too distant future, this site and those along Banks Avenue contiguous to the site will cease to have so much of a residential amenity as a mixed use amenity albeit that there will be some residential and, in the shorter term, substantial residential use.

3) The Tribunal considers that, given the concession by the respondent that proposed Amendment No 73 is a seriously­entertained proposal to which the Tribunal should have regard and to which the Tribunal should give substantial weight, the Tribunal's view is that the residential amenity in an area that is zoned for mixed use, is of less importance than the residential amenity in an area that is zoned for residential use.

4) There are substantial other conditions imposed on the grant of approval to prohibit the proposed home business from growing beyond the definition of Home Business ­ Category 3. There is therefore no need to grant only a limited term of approval for the proposed home business use to operate from the site. If the applicants' business exceeds the operational restrictions imposed by the conditions comprised in the reviewable decision or they operate the proposed home business in breach of the conditions, then the respondent may respond to the situation on the basis that the use is an unapproved use.

5) Condition (j) is not required and is not suitable as a method of enforcement of the conditions of the approval comprised in the reviewable decision.

6) As to the issue that the limited terms allows for assessment of whether the proposed home business has a deleterious impact on the residential amenity of the surrounds or the amenity of the rear neighbour, the Tribunal considers that the condition is not necessary because in the first place, the residential amenity of the area will be impacted by a change in the zoning which, at this stage, must be considered by the Tribunal as a likely event. Secondly, the impact of the proposed home business does need a trial or probationary period.

32 At paragraph 19 of the respondent's submission it is stated that:

Further in this context the Home Business on the Review Site seeks to establish a carpark in the rear yard. At the time of determination of the application that car park has not been constructed but the existing ground levels are such that a person standing in the location of the proposed car park can overlook into the rear neighbouring property at 26 Hicks Way. The neighbour at 26 Hicks Way has objected to the proposal and one of those grounds of objection is on the basis of their concern about overlooking into the property from the residence and car park. Photos from the review Site towards the property at 26 Hicks Way are provided at Annexure R1.

33 The ground level of the proposed car park is a fact that may be ascertained, if the respondent considered it to be of significant weight to affect the decision to grant the application for approval. The fact that the rear neighbour's home may now be overlooked is a known fact, but the respondent has not chosen to impose any conditions specified to prevent overlooking the rear neighbour's property, although some of the conditions as to rear setback, planting of vegetation along the rear boundary and car park barriers have an impact on the ability to oversee the rear neighbour's property. The respondent has not proposed any alternative condition to condition (j) and has not made any submissions in that regard. The Tribunal also notes that the proposed car parks to the rear of the site are to be used only by the applicants and for employees of the proposed home business. All customer car parking is to the front of the site and will have no or little impact on the rear neighbouring property. As the nature of this business is such that all business operations shall take place within the residence, rather than within or near the car park, the Tribunal considers the opportunity to overlook the rear neighbour's property to be very limited. In any event, this issue could have been assessed at the time of the respondent's consideration, before making the reviewable decision. It may also be assessed by the Tribunal now, upon review. As there were no additional conditions imposed to deal with the possibility of overseeing into the rear neighbouring property from the proposed car parks and there were none proposed to the Tribunal, the Tribunal considers that the conditions imposed in respect of the proposed car parks mitigate against the low risk of loss of amenity to the rear neighbouring property from the proposed car parks.

34 For example, the provisions of a setback from the rear boundary, a car park barricade and the provision of vegetation between the rear boundary and the commencement of the car parking area will limit the opportunity or prospect of the rear neighbour's residential amenity being deleteriously impacted.

35 As stated above, the respondent relied upon Potter to support its contention that the respondent was properly able to impose a time limitation condition on the grant of approval in this matter. However, the Tribunal concludes that that authority is not of assistance to the respondent in this matter. Potter specifically applied to a situation where there was a genuine concern as to whether a condition of the grant of approval could be complied with. In that matter, the applicant for the grant of approval to operate a dog minding business asserted that she had the personal capacity to control the dogs within her care and thus minimise any possibility of nuisance arising from dogs barking. Whether or not the applicant had that capacity, could only be determined by reference to what was essentially a trial or probationary period. In this case, the impact of the proposed home business on the amenity of the surrounding area may be reasonably and accurately foreseen, along with the impact on the rear neighbour's privacy. The proposed home business involves the operation of a real estate agency, which is largely administratively based and requires the use of commonly household operating equipment, such as a telephone, a fax machine, the internet, computers and a photocopier. There are no large, non­residential types of machinery involved, nor is there any kind of conduct that is likely to cause noise, odour, or any other impact on the amenity of the surrounding area. The greatest impact on the amenity of the surrounding area is most likely to be the vehicular traffic along the driveway and parking at the rear of the site. The impact of that amenity is capable of being assessed and the respondent has imposed relevant conditions upon the grant of approval so as to minimise the impact of the vehicular traffic on the site to the immediate neighbouring properties. The Tribunal considers the conditions that have been imposed are sufficient to safeguard the impact of the operation of the proposed home business on this site upon the amenity of the surrounding area. In any event, the Tribunal notes that the respondent has not proposed any alternative conditions to condition (j) and it was open to the respondent to do so.

36 Further and finally, the proposed Revised Home Business Policy, to the extent that it directs or mandates a limited term for the grant of approval of a Home Business – Category 3 use on a site, is not consistent with the power conferred upon the respondent by cl 6.9.2 of DSP 2. Even if the proposed Revised Home Business Policy had been adopted finally by the respondent, the Tribunal is not obliged to give that policy plenary effect because it is inconsistent with the broad power conferred upon the respondent by cl 6.9.2 of DSP 2.

37 Neither party has canvassed any alternative condition or any alternative term of the approval. In particular, the respondent has not advanced an alternative term of approval which was open to it to do and has asserted at all times that the term should be limited to 12 months. That being the case, the respondent has foregone the opportunity of persuading the Tribunal that a longer period should be imposed as a condition to the grant of approval. As neither party advanced an alternative term of the grant of approval; any evidence in support of any alternative nor justification of the same, the Tribunal considers that the correct and preferable decision, in this proceeding, is to vary the reviewable decision by deletion of condition (j) to the grant of the approval comprised in the reviewable decision.

Conclusion

38 The Tribunal has determined that the grant of planning approval to the applicants by the respondent made on 12 June 2014 should be varied so as to delete condition (j).

Order

39 Pursuant to s 29(2)(b) of the State Administrative Tribunal Act 2004 (WA), upon review of the respondent's decision to grant the applicants conditional approval to operate a Home Business - Category 3 (real estate office) from Number 26 (Lot 240) Banks Avenue Hillarys, referred to in the respondent's letter of approval and stamped plans dated 12 June 2014, the respondent's decision is varied so as to delete condition (j) thereto.

I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS N OWEN-CONWAY, MEMBER