| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CALLAWAY and CITY OF SWAN [2014] WASAT 5 MEMBER : MS L WARD (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 10 JANUARY 2014 FILE NO/S : DR 288 of 2013 BETWEEN : DARREN CALLAWAY Applicant
AND
CITY OF SWAN
Respondent
Catchwords: Town planning Application for planning approval 'Home Business' Preliminary question Number of proposed nonhousehold employees exceeded maximum permitted under planning scheme Limitation expressed in the definition clause of scheme Is variation permitted under cl 5.1.1 of planning scheme? Relationship between definition and cl 5.5.1 Whether limitation in definition may be varied Variation in maximum number of employees not permissible under particular planning scheme Legislation: City of Rockingham Town Planning Scheme No 2, cl 4.16.2, cl 4.20.1, Pt 4
City of Swan Local Planning Scheme No 17, cl 1.7, cl 4.3, cl 4.3 1, cl 4.3.2, cl 5.5, cl 5.5.1, cl 8.1, Pt 5, Sch 1 Pt B
Interpretation Act 1984 (WA), s 6, s 18
Planning and Development Act 2005 (WA), s 4, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Town Planning Regulations 1976 (WA), Appendix B Result: Preliminary issue answered 'No'
The City of Swan and the Tribunal do not have power under cl 5.5.1 of City of Swan Local Planning Scheme No 17 to vary the definition of 'home business'
Summary of Tribunal's decision: Mr Darren Callaway is a director of a company which installs and connects residential air conditioners. He applied for planning approval for a home business. The business intends to employ more than two people not members of the occupier's household. The application was refused by the City of Swan because it decided that it did not have a discretion to vary the maximum number of nonhousehold employees stated in the 'home business' definition. Mr Callaway then applied to the Tribunal for a review of the refusal decision.
The parties submissions are summarised briefly below. 1. Mr Callaway submitted that cl 5.5.1 of the City of Swan Local Planning Scheme No 17 permitted approval of a 'home business' even where the number of nonhousehold employees exceeded two.
2. The City submitted, in essence, that the limitation on nonhousehold employees was fixed by the use of class definition in Pt B of Sch 1 to the City of Swan Local Planning Scheme No 17. In contrast, cl 5.5.1 of the City of Swan Local Planning Scheme No 17 relates to variations to site and development standards and requirements. Therefore the City of Swan submits that the limitation on nonhousehold employees is not capable of variation under cl 5.5.1 of the City of Swan Local Planning Scheme No 17. The Tribunal had to consider whether the power of variation applied to the term 'home business' as defined in the City of Swan Local Planning Scheme No 17.
After considering the Scheme and various previous decisions, including Marshall and City of Rockingham [2006] WASAT 249, the Tribunal decided that the limitation was not capable of variation due to the definition of 'home business' and the particular wording of cl 5.5.1 of the City of Swan Local Planning Scheme No 17. In this case, reading the City of Swan Local Planning Scheme No 17 as a whole, the Tribunal preferred the so called 'orthodox' approach to the interpretation and treatment of definition sections in planning schemes as set out in Woollahra Municipal Council v Carr (1985) 62 LGRA 263 (NSWCA) (and subsequent cases cited below), rather than the more flexible approach adopted in relation to various different planning schemes (as in Marshall and the City of Rockingham [2006] WASAT 249).
As a result, the Tribunal answered the preliminary legal question as follows: Question: Whether cl 5.5.1 of the City of Swan Local Planning Scheme No 17 provides a power to vary the limit on the number of people 'not members of the occupier's household' contained in the City of Swan Local Planning Scheme No 17 definition of the use class 'Home Business'.
Answer: No. Accordingly, Mr Callaway is not permitted to run a 'home business' from his dwelling where he employs more than two people who are not members of the occupier's household.
Category: B
Representation: Counsel:
Applicant : Mr C Wallace
Respondent : Mr C Slarke
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Benz v Shire of Denmark [2004] WATPAT 30
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 394
Franco and City of Nedlands [2012] WASAT 53
Marshall and City of Rockingham [2006] WASAT 249
Napoli v City of Stirling [2004] WATPAT 81
O'Donovan and Town of Vincent [2005] WASAT 120
Riley v City of Joondalup [2004] WATPAT 61
Spectator Investments Pty Ltd and City of Joondalup [2005] WASAT 299
The Match Group and Metro SouthWest Joint Venture Development Assessment Panel [2012] WASAT 226
Woollahra Municapal Council v Carr (1985) 62 LGRA 263 (NSWCA)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 Mr Callaway lodged an application with the City of Swan (City) on 6 December 2012 for planning approval in relation to the proposed use of his home as a 'home business'. He jointly conducts a business trading under the name of IC Cool Refrigeration Mechanical and Electrical Services (IC Cool). The principal business of IC Cool is the installation and connection of residential air conditioning units. The business wishes to employ more than two people, not members of the occupier's household. 2 IC Cool operates from Mr Callaway's residential property at 297 Pechey Road, Jane Brook (property), in the City of Swan. 3 The property is zoned 'Landscape' under the City of Swan Local Planning Scheme No 17 (LPS 17). Accordingly, under the Zoning Table, in cl 4.3 of LPS 17, a 'home business' is listed as a discretionary (D) use. A (D) use may only be carried out with the City's planning approval. A 'home occupation' and a 'home office' are listed as permitted (P) use; an 'office' is not a permitted use (X) in the zone. 4 Mr Callaway operates a small office in his home and a storage area in his garage. Mr Callaway plans to move both these functions from his home to the rear shed on the property. 5 On 23 July 2013 the City refused the application for the following reasons: 1. Part 5.5.1 of the City's Local Planning Scheme No. 17 (the Scheme) does not provide discretion to vary the maximum number of employees not members of the occupier's household stipulated in the 'Home Business' definition. 2. The proposal falls outside of the Scheme definition of the 'Home Business' use class. That being the case the use would presumably be classified as an 'Office', which is an 'X' use, and is not permitted by the Scheme. 6 Mr Callaway applied to the Tribunal for review of the City's refusal decision on 13 August 2013. The application for review is made pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). Both parties are legally represented before the Tribunal. The parties agreed a statement of facts. They also filed and exchanged submissions and replies. The matter is being determined on the documents, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA). 7 The Tribunal has not been provided with details regarding the exact number of employees which IC Cool has or the number of employees who reside at the property.
Preliminary issue 8 The parties agreed that the following question is to be determined by the Tribunal as a preliminary issue: Whether cl 5.5.1 of LPS 17 provides a power to vary the limit on the number of people 'not members of the occupier's household' contained in the Scheme's definition of the use class 'Home Business'. 9 The relevant parts of LPS 17 are set out and considered below.
Planning framework LPS 17 10 The property is within the local government district of the City and therefore it is subject to LPS 17. 11 Clause 8.1 of LPS 17 requires generally that planning approval be obtained for all developments, and it relevantly provides that: 12 In any case, the obligation to obtain planning approval in relation to both the use and development exists, due to the definition of 'development' in s 4 of the PD Act being applied by cl 1.7 of LPS 17 and Sch 1 of LPS 17. Under the PD Act definition, 'development' means 'the development or use of any land'. 13 Clause 4.3.1 of LPS 17 refers to the Zoning Table set out in cl 4.3, and it relevantly provides: 14 The Zoning Table in cl 4.3 of LPS 17 lists multiple land uses in the column headed 'Use Classes'. The Zoning Table also identifies the permissibility of each use in each of the 22 identified zones. In accordance with the symbols set out in cl 4.3.2 of LPS 17 'Home Business' use is identified as a 'D' use in the Landscape zone. In accordance with cl 4.3.2 of LPS 17, the use is 'not permitted unless the local government has exercised its discretion by granting planning approval'. 15 Part 5 of LPS 17 is headed 'General Development Requirements'. Clause 5.5 is headed 'Variations to site and development standards and requirements', and states that: 5.5.1 Except for development in respect of which the Residential Design Codes apply, if a development is the subject of an application for planning approval and does not comply with a standard or requirement prescribed under the Scheme, the local government may, despite the non-compliance, approve the application unconditionally or subject to such conditions as the local government thinks fit. (Emphasis added) … 16 In Sch 1 Pt B of LPS 17, 'Dictionary of defined words and expressions, Land Use definitions', the following terms which are relevant to this application are defined as follows: … 'home business' means a business, service or profession carried out in a dwelling or on land around a dwelling by an occupier of the dwelling which (a) does not employ more than 2 people not members of the occupier's household; (b) will not cause injury to or adversely affect the amenity of the neighbourhood; (c) does not occupy an area greater than 50 square metres; (d) does not involve the retail sale, display or hire of goods of any nature; (e) in relation to vehicles and parking, does not result in traffic difficulties as a result of the inadequacy of parking or an increase in traffic volumes in the neighbourhood, and does not involve the presence, use or calling of a vehicle more than 3.5 tonnes tare weight; and (f) does not involve the use of an essential service of greater capacity than normally required in the zone; 'home occupation' means an occupation carried out in a dwelling or on land around a dwelling by an occupier of the dwelling which (a) does not employ any person not a member of the occupier's household; (b) will not cause injury to or adversely affect the amenity of the neighbourhood; (c) does not occupy an area greater than 20 square metres; (d) does not display a sign exceeding 0.2 square metres; (e) does not involve the retail sale, display or hire of goods of any nature; (f) in relation to vehicles and parking, does not result in the requirement for a greater number of parking facilities than normally required for a single dwelling or an increase in traffic volume in the neighbourhood, does not involve the presence, use or calling of a vehicle more than 2 tonnes tare weight, and does not include provision for the fuelling, repair or maintenance of motor vehicles; and (g) does not involve the use of an essential service of greater capacity than normally required in the zone; 'home office' means a home occupation limited to a business carried out solely within a dwelling by a resident of the dwelling but which does not (a) entail clients or customers travelling to and from the dwelling; (b) involve any advertising signs on the premises; or (c) require any external change to the appearance of the dwelling; … 'office' means premises used for administration, clerical, technical, professional or other like business activities[.] 17 The above land use definitions, and cl 5.5.1 of LPS 17, all originate from the Town Planning Regulations 1967 (WA) Appendix B, Model Scheme Text (see Marshall and City of Rockingham [2006] WASAT 249 at [18] and [29] (Marshall). As noted in Marshall at [36], the significance of the origins of LPS 17 is that that the, 'model instrument is drafted, with some precision, by parliamentary counsel' rather than being drafted largely by town planners (see Marshall at [34] and [35] and cases cited therein). As a result, the Tribunal is entitled to interpret the relevant parts of LPS 17 as stating with precision what was intended by the City.
The parties' submissions 18 Turning now to the parties' written submission in this matter. 19 Mr Callaway submits that cl 5.5.1 of LPS 17 permits the number of employees to be varied as paragraph (a) of the definition of 'home business' is a 'standard or requirement prescribed under the Scheme'. 20 In contrast, the City submits that the 'home business' use class definition fixes the number of nonhousehold employees and that it is not a 'standard or requirement' capable of variation under cl 5.5.1 of LPS 17. 21 Mr Callaway relies on a number of earlier Tribunal and Western Australian Town Planning Appeal Tribunal (WATPAT) decisions in support of his submissions. In particular, Mr Callaway relied on the decision of the Tribunal in Marshall. Marshallinvolved consideration of the City of Rockingham Town Planning Scheme No 2 (TPS 2). In TPS 2 the 'home business' definition is duplicated under Pt 4 'General development requirements' at cl 4.16.2(a). For the sake of completeness, the Tribunal notes that cl 4.16.2(b) and (c) of the TPS 2 refer to amenity and policy matters. 22 In Marshall,at [37], the Tribunal found that the limitation on the number of nonhousehold employees could be varied under cl 4.20.1 of TPS 2 (the equivalent of cl 5.5.1 of LPS 17) as the employee limitation was a 'requirement' under cl 4.16.2(a). 23 According to the City's submission, cl 4.16.2 of TPS 2 was a critical factor in Marshallwhich allowed a variation to the number of nonhousehold employees. However, LPS 17 does not include an equivalent provision to cl 4.16.2 of TPS 2. In these circumstances the City submits that in the absence of an equivalent provision to cl 4.16.2 of TPS 2, then Marshall supports the orthodox approach to the interpretation of defined terms and general clauses in planning schemes.
Approaches to the interpretation of defined terms 24 The key to the resolution of the preliminary issue is whether or not the limitation on the number of non-household employees is fixed by the land use definition in Pt B of Sch 1 to LPS 17 and, if it is, then it is not a development standard or requirement capable of variation under cl 5.5.1 of LPS 17. 25 The general approach to interpreting a planning scheme is well established, namely, that planning schemes, like LPS 17, are to be read as a whole and the context of the scheme is to be considered in its entirety (see: The Match Group and Metro SouthWest Joint Venture Development Assessment Panel [2012] WASAT 226 (The Match Group) at [17], and reference to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 394, at 408). 26 Where provisions within a scheme appear to be inconsistent then Franco and City of Nedlands [2012] WASAT 53 at [22] and [23] (Franco) is of assistance. In Franco the Tribunal neatly summarised the circumstances where a planning scheme may be 'rewritten' or modified or subject to variation where it stated that: This approach of applying the literal or grammatical reading extends, of course, to words which are themselves defined in an instrument being used to explain such words' meaning. If any 'rewriting' of such a town planning scheme is to take place, it is only possible under ordinary statutory interpretation principles in three circumstances: 1) in the case where there are obvious drafting errors, and mistakes of that nature; 2) on the application of the orthodox 'golden rule' approach, which is to avoid the effect of literal or grammatical absurdity; and 3) possibly also, in some cases, by using a modern approach which requires reference to purpose and context. 27 The Tribunal has previously dealt with several cases which examine the approach to be taken to the interpretation of defined terms in planning schemes. 28 In some cases the Tribunal has found that the meaning of a defined term has been deviated from where the context required it, as in The Match Group. Such a purposive interpretation by the Tribunal is consistent with s 18 of the Interpretation Act 1984 (WA) (Interpretation Act). Section 18 of the Interpretation Act requires that, in the interpretation of a written law, a construction that would promote the purpose and object underlying the written law shall be preferred to a construction that would not promote that purpose or object. 29 In other cases the 'deviation' from a defined meaning or a general provision has occurred where a contrary intention appears in the body of the planning scheme, as in O'Donovan and Town of Vincent[2005] WASAT 120 (O'Donovan), Spectator Investments Pty Ltd and City of Joondalup[2005] WASAT 299 (Spectator) and Marshall. 30 Section 6 of the Interpretation Act requires that definitions contained in a written law apply to the construction of that written law. However, defined terms are subject to any 'contrary intention'. In Franco, at [24], the Tribunal expressed this concept as follows: Defined terms, as they appear in TPS 2, will have application unless the contrary intention appears. It is clear from Re Town Planning Appeal Tribunal; Ex Parte Environmental Protection Authority [2003] WASCA 248; (2003) 27 WAR 374, at 399 (McKechnie J), that even if such words ('contrary intention') do not appear, they will be implied, and that is also consistent with Professor Pearce's work in Statutory Interpretation in Australia (DC Pearce & RS Geddes, 6th Edition, 2006) at [6.62]. 31 In the Tribunal's view the 'deviations' from the meaning of a defined term or 're-writing' of the planning scheme fit under the third category identified in Franco above and arise from a reading of the planning scheme as a whole. 32 As set out in Marshall at [30] to [33], there are two broad approaches to the interpretation and treatment of definition sections in planning schemes, namely, the orthodox and the flexible approach. These approaches are examined below.
Orthodox approach 33 The orthodox approach to the interpretation and treatment of definition sections in planning schemes was summarised by the Tribunal in Marshallat [30] as follows: … that a decision-maker must treat the definition sections of planning schemes and instruments as, in effect, not amenable to amendment or variation by this route. Thus, definitions are external to or precursors of the actual standards or requirements themselves, and it is only the latter which may be varied pursuant to such clauses: Woollahra Municipal Council v Carr (1985) 62 LGRA 263 (NSWCA); Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 (NSWCA); North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) 71 LGRA 222 (NSWCA). And see the analysis in Penny v Cooma-Monaro Shire Council (2003) 125 LGERA 353 (Pain J). 34 In Woollahra Municapal Council v Carr (1985) 62 LGRA 263 (NSWCA) (Woollahra), the Court refused to deviate from the defined term in the circumstances of the particular planning scheme. In particular, the respondent dentist sought approval to employ more than three persons in his practice. The relevant planning scheme in New South Wales included a definition of 'Professional consulting rooms' which required that not more than three employees be employed in the rooms. The respondent dentist relied on a State policy which enabled a council to consent to a development in certain circumstances, notwithstanding that a 'development standard', as defined, prevented the development. Ultimately in Woollahra the New South Wales Court of Appeal found, at 269 per McHugh JA, that: It is not correct to say … that the development, i.e. the use of the building as professional consulting rooms as defined could be carried out under the Act 'but for' the prohibition of having more than three employees. The development could not be carried out even if that requirement was eliminated, because there is no other relevant category … which permits a dental surgery with more than three employees in this residential zone. The use of premises as a dental surgery with more than three employees is not the use of a building for professional consulting rooms. It is not within any permitted use or purpose as defined in the Planning Scheme. The respondent's submission requires the rewriting not of a 'development standard' but of the definition of a permitted use 'professional consulting rooms'. 35 The socalled orthodox approach has received some support in this Tribunal in O'Donovan,and in Spectator, at [18] and [19]. In Marshall, at [36], the Tribunal acknowledged that: … Schemes have the force of law, orthodox legal principles of interpretation should prima facie apply in their construction, and Woollahra Municipal Council v Carr ought to be highly persuasive ... . 36 Given the different planning regimes in New South Wales and Western Australia, the need to exercise some caution when considering the applicability of the New South Wales approach to the Western Australia town planning scheme, was acknowledged in O'Donovan, at [46], and is similarly acknowledged by this Tribunal. However, in relation to the question before this Tribunal, namely, whether a defined term is capable of modification, the Tribunal considers that the New South Wales cases remain relevant and highly persuasive.
More flexible approach 37 The more flexible approach to the interpretation and treatment of definition sections in planning schemes was summarised by the Tribunal in Marshall,at [33], as follows: The view taken in both this Tribunal and its predecessor, generally speaking, seems to favour more flexibility than the New South Wales position would appear to permit: see Benz v Shire of Denmark [2004] WATPAT 30; Riley v City of Joondalup [2004] WATPAT 61; Napoli v City of Stirling [2004] WATPAT 81 (where the President discusses the New South Wales cases)[.] 38 In Benz v Shire of Denmark [2004] WATPAT 30 (Benz) and Riley v City of Joondalup[2004] WATPAT 61 (Riley), WATPAT relied on a general discretion in the scheme to vary an aspect of the use class definition. 39 In contrast, in Napoli v City of Stirling [2004] WATPAT 81(Napoli),the clause which was varied was a specific clause in the scheme rather than a definitional term. 40 The Tribunal will proceed to consider in greater detail the WATPAT decisions which seem to favour more flexibility than the New South Wales position when considering the interrelationship between definition sections and general clauses in various Western Australia planning schemes. 41 The Tribunal accepts the City's submission that the WATPAT case of Benzproceeded on the basis that the parties agreed at [10] of Benz that 'the definition of home occupation does itself contain standards or requirements and that as a result the question can be approached by reference to the discretion … under clause 6.2'. The Tribunal notes that the President of WATPAT had no difficulty in accepting in Benzthat the definition section was capable of variation where a standard or variation was involved. Accordingly, whether or not the discretion to modify a standard or requirement applied to a definition section was not argued before the President of WATPAT in Benz. Therefore, no consideration was called for, or given in Benz, to the earlier socalled 'orthodox' line of cases.The Tribunal notes that it is highly unlikely that the 'orthodox' approach to the interpretation of definitional terms would permit the deviation allowed in Benz. As a result the Tribunal attaches little weight to the reasoning in Benzin the consideration of this matter. 42 In Riley,at [19],WATPAT applied Benzto a case where a home business involved the presence of a vehicle of more than 3.5 tonnes, and decided that notwithstanding the home business definition, this was permissible under cl 4.4.2 of the relevant scheme. The Tribunal makes two observations about Riley. Firstly, as in Benz, whether or not the discretion to modify a standard or requirement applied to a definition section was not argued before WATPAT in Riley. Secondly,as inMarshall, reference is made in Riley to the relevant planning scheme to a home business under both the zoning table (cl 3.2, cl 6.6.2 of the relevant scheme and the Table) and the general development requirements (Pt 4 and cl 4.4 'home business' in the relevant scheme). The inclusion of the requirements at cl 4.4.2 'Home Business Category 2' under 'Part 4 General development requirements' of the relevant scheme in Rileydistinguish it from LPS 17 in this case. This is because cl 4.4.2 of the relevant scheme is subject to discretionary considerations under cl 4.4.1 of the relevant planning scheme. For these reasons, in the consideration of this matter, the Tribunal attaches little weight to the reasoning in Riley. 43 In Napoli,WATPAT had to decide the permitted area of a proposed corner store/service shop. The President of WATPAT noted in Napolithat the definition of 'Corner Store/ Service Shop' in the relevant scheme did not specify the area of the store (see: Napoli, at [17]). Rather, the area of the store was set out in a specific clause in the scheme, namely, cl 2.2.7.3 of the relevant scheme (under cl 2.2.7 'Corner Store/Service Shop'). Ultimately in Napoli, at [26], it was decided that the store area, specified in cl 2.2.7.3 of the relevant scheme, was a development requirement or standard specified in the relevant scheme, and, as a result, the area of the store could be subject to discretionary modifications under cl 1.4.3.1 of the relevant scheme. Although Napoli, at [15] and [16], also considered what was a 'development standard', due to the provisions of the relevant scheme in question, the issue of whether a use class definition could be modified under cl 1.4.3.1 of the relevant scheme did not expressly arise and was not dealt with by WATPAT. As result of the differences between the planning scheme in Napoliand LPS 17 in this case, the Tribunal attaches little weight to the reasoning in Napoliin the consideration of this matter. 44 In addition, as set out above, there were significant differences between TPS 2 in Marshalland LPS 17, which is currently under consideration by this Tribunal.
The preferred construction 45 Applying the observations in Franco to this case, the Tribunal notes that neither party has taken the Tribunal to any obvious drafting errors or literal or grammatical absurdity within LPS 17. On the Tribunal's reading of LPS 17 it accepts that no such obvious drafting errors exist in relation to the clauses relevant to this case. 46 Turning to the third possibility in Franco, namely, the reference to purpose and context, the Tribunal notes that this requires a reading of LPS 17 as a whole and having regard to all of the relevant provisions. Having considered the whole of LPS 17 and, in particular, the relevant clauses before the Tribunal and noting that the clauses were drafted by parliamentary counsel, the Tribunal does not consider that there is any need to deviate from the definition of 'home business' in the Scheme. Unlike in the cases, for example, of Marshall, Riley,Napoli and The Match Group, there is no contrary intention evident in the reading of the whole of LPS 17. See, for example, cl 4.3.1 of LPS 17 which expressly states that the permissibility of uses listed in the Zoning Table are subject to the provisions of LPS 17. However, no subsequent provisions in LPS 17 modify the meaning of 'home business'. 47 Accordingly, a subsequent specific provision in the planning scheme may evince an intention contrary to an earlier general provision, such that the specific provision prevails. In this regard, a specific provision in the planning scheme was relied on in O'Donovan,Spectator and Marshall to modify an earlier general provision. 48 However, in LPS 17 there is no subsequent specific provision like cl 20.4(e)(i) in O'Donovan or cl 3.6.3(e) in Spectator or cl 4.16.2 in Marshall. Therefore there is no later specific contrary intention expressed in LPS 17 which modifies the meaning of home business. 49 In the Tribunal's view, reading LPS 17 as a whole and cl 5.5.1 of LPS 17 in particular, the planning scheme does not evince an intention contrary to the defined meaning of 'home business'. 50 The difficulty with Mr Callaway's approach is that it involves the rewriting not of a standard or requirement which would be amenable to cl 5.5.1 of LPS 17, but the re-writing of the definition of a permitted use, namely, a 'home business'. 51 If the requirements of the particular defined term are not met, as in this case, then, as in Woollahra, under LPS 17, that is the end of the matter. McHugh JA stated in Woollahra, at [269], that 'if the prohibition against employing more than three persons had been contained in the body of the ordinance and not as part of the definition it would be a ''development standard'' within cl 6 …'. 52 Similarly in this case, if the prohibition against employing more than two nonhousehold members was in the body of LPS 17 (as were the specific requirements in Marshall, Napoli and Riley), rather than in the defined terms of LPS 17, then it may be capable of being a standard or requirement and would therefore be subject to the discretion in cl 5.5.1 of LPS 17. 53 In terms of the planning framework, LPS 17 is most similar to the scheme in Benz; that is, there is simply a definitional clause and a clause in the body of the planning scheme which permits a variation to a standard or requirement. For the reasons already set out above, the Tribunal attaches little weight to the reasoning and outcome in Benz. 54 The Tribunal, in this case, prefers to apply the socalled 'orthodox' approach when reading LPS 17 as a whole. As the cases referred to above highlight, while the various planning schemes have many similarities, it is the differences between them which result in outcomes entirely dependent on reading the particular planning scheme as a whole. If the City intended to exempt applicants from certain aspects of the definition of 'home business', then it could easily have done so by including such a contrary intention in the body of the LPS 17. However, the City has not done so in this case and accordingly there is no reason to depart from the defined meaning of 'home business'. 55 Accordingly, in the Tribunal's view, no contrary intention appears in LPS 17 which displaces the presumption that 'home business' has its defined meaning.
Standard or requirement prescribed under LPS 17 56 The only possibility of a variation to the meaning of home business is if the part of the definition in question, namely, the number of nonhousehold employees, is considered to be a standard or requirement as set out in cl 5.5.1 of LPS 17. In this regard, the Tribunal notes that the WATPAT agreed in Benz at [10] and Riley at [20] that the definitions in question under the relevant planning schemes included a development standard or requirement. 57 In O'Donovan at [37] to [43] the Tribunal sets out the meaning of the words 'standard' and 'requirement' as they appear in the relevant clause which permits a variation. At [39] of O'Donovan the Tribunal stated that: Thus, a 'standard' is a level which is regarded as normal, adequate or acceptable, and a 'requirement' is something which is demanded, obligatory or needed. It is, therefore, apparent that these terms refer to something which regulates an aspect of a permitted use or development, not something which absolutely prohibits, or does not permit under any circumstances, a particular type of use or development. 58 In O'Donovan the Tribunal decided that cl 20.4(e)(i) of the relevant planning scheme was not a standard or requirement because it was an absolute prohibition. Clause 20.4(e)(i) of the relevant planning scheme stated that, '[m]ultiple dwellings are not permitted in this precinct'. 59 In Spectator at [17] cl 3.6.3 of the relevant planning scheme relating to the area of shop floor space was determined to be a requirement as the scheme uses the words 'provided the following conditions have been met'. 60 As the Tribunal has answered the preliminary question without the need to determine whether or not the number of nonresident employees specified in the definition is also a standard or requirement under cl 5.5.1 of LPS 17, it is not necessary or prudent for the Tribunal to make any findings in relation to that secondary issue.
Conclusion 61 In conclusion, the City and the Tribunal do not have the power under cl 5.5.1 of LPS 17 to vary the definition of 'home business'. The Tribunal is satisfied that Mr Callaway is not permitted to run a 'home business' from his dwelling where he employs more than two people who are not members of the occupier's household.
Orders |