Chapman and City Of Armadale

[2011] WASAT 205

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   CHAPMAN and CITY OF ARMADALE [2011] WASAT 205

MEMBER:   MR P McNAB (MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   EDITED REASONS DELIVERED ORALLY ON 2 SEPTEMBER 2011

FILE NO/S:   DR 38 of 2011

BETWEEN:   DONNA CHAPMAN

ALLAN CHAPMAN
Applicants

AND

CITY OF ARMADALE
Respondent

Catchwords:

Local government ­ Notices and Directions ­ Enforcement of prohibitions on development ­ Alleged use or development of land in contravention of Town Planning Scheme ­ No approval for sea container on land ­ Commercial vehicles alleged to be parked on land ­ Land rural living ­ Sea container on land was use or development of land ­ Planning approval required ­ Direction partly justified ­ Vehicles found to be parked for ordinary domestic or private use ­ Whether Scheme likely to have imposed planning controls in such circumstances ­ Direction not justified on this point ­ Whether Direction severable ­ Usual approach of local government to such parking in rural residential areas ­ Direction should in any case be set aside ­ Constitutional arguments to the effect that laws of the State were inoperative rejected as untenable ­ Application for review allowed

Legislation:

City of Armadale Town Planning Scheme No 4, Pt 5B, cl 5B.4.5, Sch 1
Planning and Development Act 2005 (WA), s 214, s 214(2), s 214(3)

Result:

The application for review is allowed
The decision to issue the Direction under review is set aside and there is substituted a decision not to issue a Direction

Category:    B

Representation:

Counsel:

Applicants:     Self-represented

Respondent:     Mr L James

Solicitors:

Applicants:     N/A

Respondent:     Kott Gunning

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

Defendi v Shire of Mundaring [2004] WATPAT 124

Evans and Shire of Roebourne [2010] WASAT 93

Glew v Shire of Greenough [2006] WASCA 260

Godenzie and City of Geraldton­Greenough [2010] WASAT 107

Murray and Shire of Serpentine-Jarrahdale [2006] WASAT 258

Pennicuik v City of Gosnells [2011] WASC 63

Re Adams and Tax Agents' Board (1976) 12 ALR 239

Twyman and City of Canning [2009] WASAT 146

Western Australian Planning Commission v Furfaro [2007] WASAT 24; (2007) 49 SR (WA) 165

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. This matter involved an application for review of a written Direction issued by the City of Armadale requiring the removal of all sea containers and all 'commercial vehicles' from the subject land on the grounds that these so­called 'Unlawful Activities' were not permitted under the City of Armadale Town Planning Scheme No 4 in the rural living zone.

2. The Tribunal found that with respect to the sea container the Direction was in part within power, and justified, and that the applicants must apply for planning permission.

3. However, the Tribunal also found that the 'commercial vehicles' were in fact used for normal domestic and temporary activities, as indicated by the applicants (facts that were not challenged by the City) and, therefore, not contemplated for planning control under the Scheme in this zone.

4. The Tribunal determined that as severance of the Direction was probably not possible in this case, and that as part of the Direction dealing with the alleged parking of commercial vehicles needed to be set aside, the better view was that, in any case, the whole Direction should be set aside.

5. On this basis, the application for review was allowed and the decision of the respondent to issue a Direction was set aside and substituted with a decision not to issue a Direction.

6. The applicants also raised 'Constitutional' arguments to the effect that the statutory laws of the State were inoperative.  These arguments were rejected by the Tribunal as untenable and without substance.

7. What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.

Introduction

1. This is a review of a written Direction issued by the City of Armadale (City or respondent) to Ms Donna Chapman and Mr Allan Chapman (applicants) dated 21 January 2011 (Direction).  The matter has been determined on the documents.

2. The Direction was issued pursuant to the authority given to the respondent under s 214(2) and s 214(3) of the Planning and Development Act 2005 (WA) (PD Act). The Direction recites materially that,

   [s]ince 30 November 2010, the Property [that is, the applicants' land] has been used for the purpose of parking commercial vehicles and the placement of a sea container on site ('the Unlawful Activities') without the consent of the City under Scheme No. 4.  The Unlawful Activities are not permitted on the Property under [Town Planning] Scheme No. 4.

3. The Direction also recites various, in effect, warnings that have been issued to the applicants, as follows:

   Inspections of the Property since 30 November 2010 have established that the Unlawful Activities are still being carried out on the Property [sic] illegally.

4. The so-called 'Unlawful Activities' refer to an alleged parking of commercial vehicles, and the alleged placement of a sea container, on the applicants' land without planning permission.  That property is the applicants' 2.2 hectare lot, being Lot 59 on Plan 11599 and comprising Certificate of Title, Volume 1441, Folio 73 (subject land).

5. The Direction requires the removal of all sea containers and all commercial vehicles which include two vehicles with identified number plates and another vehicle described as an 'orange bobcat'.

6. No point is taken by the applicants with respect to the form of the Direction, its drafting or its operative effect, if valid.  Thus, for the purposes of this review I have assumed, without deciding, that the Direction is valid in form, subject to one overarching so-called 'Constitutional argument' advanced by the applicants, which I will deal with below.

The facts

1. The essential facts appear not to be in dispute.  They are, first, a sea container exists on the subject land and, secondly, such vehicles as are specified, are or have been parked on the subject land from time to time, and certainly at the time of the issue of the Direction.

2. Section 214 of the PD Act relates to the contravention of a planning scheme which includes failing to comply and commencing development, otherwise than in accordance with a Town Planning Scheme. On the face of it, the alleged activities set out in the Direction could fall within these prohibitions.

Planning framework

1. The relevant Town Planning Scheme is the City of Armadale Town Planning Scheme No 4 (Scheme or TPS 4).  The subject land is zoned therein 'Rural Living'.

2. In short, so far as the sea container is concerned, the placement of such a structure in the circumstances we are here considering, amounts to development or use of the land which requires planning approval either from the City or, on review, from this Tribunal.  A long series of cases in this Tribunal, and the previous Town Planning Appeal Tribunal, dealing with sea containers, have established that proposition.

3. Those cases include Defendi v Shire of Mundaring [2004] WATPAT 124 (Defendi); Murray and Shire of Serpentine-Jarrahdale [2006] WASAT 258 (Murray); and Twyman and City of Canning [2009] WASAT 146 (Twyman).  Twyman was an extempore decision where the applicant was assumed to have been caught by the Town Planning Scheme.  See also Evans and Shire of Roebourne [2010] WASAT 93 (Evans), where sea containers were caught by the relevant Scheme provisions.

4. I do not see any reason to doubt the correctness of the conclusions reached in those cases.  Thus, in respect of the sea container, the Direction is, in part at least, prima facie within power and justified.

5. Mr and Mrs Chapman must obtain planning permission for the sea container.  They were required to comply under the Scheme which has the force of law.  They will of course have a right of review if they are unsuccessful with the City but they must apply for approval or they risk another Direction being issued, or worse still, prosecution.

Commercial vehicles

1. The question of the parking of commercial vehicles is, I think, altogether different.  But first I need to refer to the relevant Scheme provisions.  Under the Zoning Table, commercial vehicle parking is a use of land in the 'Rural Living' zone that requires planning permission.

2. Further, cl 5B.4.5 found in Pt 5B of the Scheme, 'Rural Living and General Rural Zone Requirements', appears to prohibit without approval commercial vehicles being parked, except in specified circumstances.  A 'commercial vehicle' is defined in Sch 1 of the Scheme to mean:

   … a licensed or unlicensed vehicle (including any trailer or attachment) whether in serviceable condition or not, used, designed or intended to be used in the course of trade or commerce and includes vehicles described in the First Schedule to the Road Traffic Act 1974 [(WA)], but does not include a caravan, farm tractor, motor car, motor carrier, motor cycle, station sedan, station wagon or utility[.]

3. I assume, without deciding, that the vehicles expressly identified in the Direction fall within the definition class of defined commercial vehicles.  However, the expression 'commercial vehicle parking' is not expressly defined in the Scheme except to the extent that cl 5B.4.5, and the definition of commercial vehicle taken together, suggest such a definition by implication.

4. I turn now to the specific case.  Generally speaking, every activity regulated by a town planning scheme needs to operate in relation to specific facts for the enforcement of any legal rule.  Here the applicants assert, and the respondent City has not countered otherwise, that the identified vehicles are being used for domestic purposes; namely, there is a personal Isuzu vehicle, Registration No 1BYK­256, being used for carrying mainly licensed quad bikes to riding areas and for general household duties.

5. The other specified vehicle, the Ford, Registration No 1BAB­118 ­ and I mention that both of these vehicles are mentioned in the Direction ­ is a vehicle on hire, or was on hire, in relation to the clearance of rocks in the yard.  It also carried the bobcat which is mentioned in the notice.  None of these assertions, I repeat, have been the subject of any contradictory evidence, indeed, even an assertion that the statements are not or were not substantially true or correct.

6. In fact, they seem perfectly normal explanations for standard domestic activities in rural living areas.  They indicate domestic, not commercial, rural living activities and purposes.  Whatever the precise scope of commercial vehicle parking sought to be regulated by TPS 4 in rural living areas, it seems unlikely that normal domestic and temporary activities of the type indicated by the applicants were contemplated for planning control purposes.  Applying a purposive test to the interpretation of the Scheme's provisions would arrive at the same result.

7. In any event, the usual attitude to such matters is, I think, indicated by the approach found in Godenzie and City of Geraldton­Greenough [2010] WASAT 107 (Godenzie) at [41]. There, the Tribunal noted that the respondent, the City of Geraldton­Greenough, had accepted that, subject to conditions, it was reasonable in the rural-residential zone that a resident be allowed to drive a commercial vehicle home, park it and then depart in the vehicle to go to work elsewhere. In Godenziethe applicants ultimately failed because they had gone beyond that concession.  But that was a reasonable ­ if not the usual ­ position or starting point, I would have thought, adopted by most local governments.

8. Thus, I would set aside so much of the Direction which deals with the alleged parking of commercial vehicles.  However, I do not think that severance of the Direction is possible in this case and although a Direction could be issued in respect of the sea container, the admixture of both items in the one notice, in my view, probably wholly invalidates the Direction and, in any case, warrants the setting aside of it.

The Constitutional arguments

1. In the result it is not strictly necessary to address the applicants' so­called 'Constitutional' arguments.  However, I will go on to make some brief mention of them since so much work was put into them by the parties and their assistants.  They relate to the status of corporations, local government, the constitutional validity of statutory laws, the sanctity of the common law and the status of private property.

2. In my view these arguments are untenable and have no substance whatever.  They are completely devoid of any merit.  These types of arguments pay no attention to historical facts or to our notions of what is considered to be law and the accepted constitutional underpinnings of our system of government.

3. Further, they have been consistently rejected by the highest courts in this State and they include the cases cited by the respondent's Counsel: see, for example, Pennicuik v City of Gosnells [2011] WASC 63 and Glew v Shire of Greenough [2006] WASCA 260, a decision of the Court of Appeal in respect of which the High Court of Australia denied special leave to appeal, in 2007.

4. I should mention that there are other similar (and unsuccessful) cases brought by Mr Glew in the Supreme Court, and they are all to the same effect.

5. Further, if the arguments were valid then of course this Tribunal would be rendered nugatory.  It is, however, a settled axiom of administrative law that the authority of a Tribunal does not in effect extend beyond presuming the validity of Parliament's statutes: see the decision of Brennan J sitting as the President of the Administrative Appeals Tribunal in Re Adams and Tax Agents' Board (1976) 12 ALR 239. See also, Western Australian Planning Commission v Furfaro [2007] WASAT 24; (2007) 49 SR (WA) 165 at [23] (Chaney DCJ, as he then was).

6. For the main reasons set out above there will be a decision allowing the review and setting aside the Direction.

Orders

1. The Tribunal makes the following orders:

   1.The application for review is allowed.

   2.The decision to issue the Direction under review is set aside and there is substituted a decision not to issue a Direction.

I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR P McNAB, MEMBER