Chisholm Holdings Pty Ltd and City Of Wanneroo
[2008] WASAT 250
•27 OCTOBER 2008
CHISHOLM HOLDINGS PTY LTD and CITY OF WANNEROO [2008] WASAT 250
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 250 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:145/2008 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 26/10/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Proposed development involves two different and distinct listed uses, namely 'shop' and 'warehouse', not an unlisted use | ||
| B | |||
| PDF Version |
| Parties: | CHISHOLM HOLDINGS PTY LTD CITY OF WANNEROO |
Catchwords: | Town planning Development application Preliminary issue Classification of use Development application for 'the use of a growers mart' Wholesale distribution and retail sale of primary products, including fruit and vegetables, meat and bread Whether hybrid or composite use Whether proposed use is properly classified as 'growers mart' Whether proposed development involves two different and distinct uses, namely 'shop' and 'warehouse' Whether development involves an unlisted use Significance of local structure plan that makes 'growers mart' permissible on other land |
Legislation: | City of Wanneroo District Planning Scheme No 2, cl 3.3, cl 6.6.2, cl 9.8, cl 9.8.2, cl 9.8.2(a), cl 9.8.3, cl 9.8.3(f), Table 1 |
Case References: | Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431 |
Orders | The Tribunal makes the following orders:,1. The preliminary issue is answered as follows:,'The proposed development involves two different and distinct land uses, each specifically mentioned in Table 1 of the City of Wanneroo District Planning Scheme No 2 (DPS 2), namely "shop" and "warehouse", and not an unlisted use for the purpose of cl 3.3 of DPS 2.',2. The proceedings are adjourned to a directions hearing at 11 am on 7 November 2008 in order to consider further programming of the matter. |
Summary | This decision concerned the proper classification of a proposed development described by the applicant as a 'growers mart' and consisting of the wholesale distribution and retail sale of primary products, including fruit and vegetables, meat and bread. The applicant argued that the proposal is classified as 'growers mart' whereas the respondent argued that it is classified as 'shop' or, alternatively, as 'shop' and 'warehouse'.,The Tribunal determined that the proposed development involves the carrying out of two different and distinct land uses, namely 'shop' and 'warehouse', although in the same premises and using the same facilities. The inclusion of the wholesale and distribution of primary products does not change the fundamental character of the retail component of the proposal from that of 'shop'; it simply adds another use, namely 'warehouse', to the 'shop' use at the site. The proposed development does not involve a composite or hybrid land use described by the applicant as 'growers mart'. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CHISHOLM HOLDINGS PTY LTD and CITY OF WANNEROO [2008] WASAT 250 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 27 OCTOBER 2008 FILE NO/S : DR 145 of 2008 BETWEEN : CHISHOLM HOLDINGS PTY LTD
- Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Town planning - Development application - Preliminary issue - Classification of use - Development application for 'the use of a growers mart' - Wholesale distribution and retail sale of primary products, including fruit and vegetables, meat and bread - Whether hybrid or composite use - Whether proposed use is properly classified as 'growers mart' - Whether proposed development involves two different and distinct uses, namely 'shop' and 'warehouse' - Whether development involves an unlisted use - Significance of local structure plan that makes 'growers mart' permissible on other land
(Page 2)
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 3.3, cl 6.6.2, cl 9.8, cl 9.8.2, cl 9.8.2(a), cl 9.8.3, cl 9.8.3(f), Table 1
Result:
Proposed development involves two different and distinct listed uses, namely 'shop' and 'warehouse', not an unlisted use
Category: B
Representation:
Counsel:
Applicant : Mr P J McQueen
Respondent : Mr C A Slarke
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods
Case(s) referred to in decision(s):
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431
(Page 3)
Summary of Tribunal's decision
1 This decision concerned the proper classification of a proposed development described by the applicant as a 'growers mart' and consisting of the wholesale distribution and retail sale of primary products, including fruit and vegetables, meat and bread. The applicant argued that the proposal is classified as 'growers mart' whereas the respondent argued that it is classified as 'shop' or, alternatively, as 'shop' and 'warehouse'.
2 The Tribunal determined that the proposed development involves the carrying out of two different and distinct land uses, namely 'shop' and 'warehouse', although in the same premises and using the same facilities. The inclusion of the wholesale and distribution of primary products does not change the fundamental character of the retail component of the proposal from that of 'shop'; it simply adds another use, namely 'warehouse', to the 'shop' use at the site. The proposed development does not involve a composite or hybrid land use described by the applicant as 'growers mart'.
Introduction
3 The Tribunal is called upon to determine a preliminary issue as to the proper classification of the land use or uses proposed by Chisholm Holdings Pty Ltd (Chisholm) in relation to No 12 (Lot 6) Hughie Edwards Drive, Merriwa (site). The site is zoned 'Business' under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme).
Background
4 In December 2007, Chisholm applied to the City of Wanneroo (City or Council) for approval under DPS 2 for 'proposed development or land use' described on the development application form as 'extension to existing building for use as a growers mart'.
5 The floor plan of the proposed development shows:
• a 330 square metre area for the display and sale of fruit and vegetables;
• a 34 square metre work area, a 40 square metre external work area and a 106 square metre coolroom accessed from the fruit and vegetables display and sale area;
(Page 4)
- • a 154 square metre foyer area between the entry to the building and the fruit and vegetables display and sale area, including two double checkouts adjacent to the entrance to the fruit and vegetables display and sale area;
• a 30 square metre butchery with butchers' serving counter accessed from the foyer and a 40 square metre butchers' work area and 30 square metre coolroom accessed from the butchery; and
• a 30 square metre bakery with bakery serving counter accessed from the foyer and a 20 square metre store accessed from the bakery and the foyer.
6 In a letter dated 12 December 2007 that accompanied the development application, Chisholm's consultant town planner stated as follows:
The Growers Mart proposed on [the site] comprises 879 sq metres of gross floor space. An operator requires 800 to 1000 sq metres of floor space to function efficiently as large areas are taken up by cool rooms and work areas. Fruit and vegetable retail shops in shopping centres are operating in limited floor space of 100 to 200 sq metres which is inadequate to run a successful business. Furthermore, the rents and outgoings of a shopping centre location ($500 sq m + outgoings) is cost prohibitive for the larger grower's mart operation.
The grower's mart relies upon product freshness and a broader range than is available in supermarkets. The vegetable component is sourced from the local market gardens and prepared for sale on site. This gives a much fresher product than those that go through the market system. Fruit comes directly from growers in Rolystone, Gin Gin, the SouthWest and the Canning Vale markets. Trading will be seven days a week from 8.30 am to 6 pm. These hours are not always possible in a shopping centre.
7 Chisholm asserts that the proposed development involves both retail sale and wholesale distribution of primary products, including fruit and vegetables, meat and bread. Chisholm contends that the proposed use of the site involves a composite or hybrid land use that is properly described as a 'growers mart' involving the wholesale distribution and retail sale of primary products, including fruit, vegetables, meat and bread.
8 Chisholm notes that 'growers mart' is not specifically mentioned in Table 1 Zoning Table of DPS 2 (Zoning Table) and submits that 'growers mart' cannot reasonably be determined as falling within the interpretation of any one of the use categories mentioned in the Zoning Table. Chisholm therefore argues that the proposed development
(Page 5)
- involves an unlisted use which is capable of approval under cl 3.3 of DPS 2. Clause 3.3 of DPS 2 states as follows:
If the use of the land for a particular purpose is not specifically mentioned in Table 1 and cannot reasonably be determined as falling within the interpretation of one of the use categories the Council may:
(a) determine that the use is consistent with the objectives and purposes of the particular zone and is therefore permitted; or
(b) determine that the proposed use may be consistent with the objectives and purposes of the zone and thereafter follow the 'D' procedures of Clause 6.6.2 in considering an application for planning approval; or
(c) determine that the use is not consistent with the objectives and purposes of a particular zone and is therefore not permitted.
Shop: means premises where goods are kept exposed or offered for sale by retail. This interpretation excludes restricted premises, but may include a bakery.
Warehouse: means premises used for storage of goods and may include the carrying out of commercial transactions involving the sale of such goods by wholesale.
What is the proper classification of the proposed use?
10 In Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431 (Gull Petroleum), the Supreme Court of Western Australia (Full Court) held, at [52] [56], as follows:
(Page 6)
- [E]ach proposal must be looked at on its own merits. The classification of the proposed uses should not be carried out either in a mechanical or in an arbitrary way. If, in a particular case, the manner in which two uses are to be combined on a particular site makes it inappropriate to categories the resulting use as a dual use with each use falling within a definition in the Scheme, perhaps because the proposed manner of combining the two uses so changes the character of one or both of them that it or they can no longer sensibly be taken to fall within the definition or definitions in the Scheme, then there should be no such categorisation. Where, on the other hand, the character of each use remains unaffected by the fact that one site is shared between them there is no reason why the categorisation of each use should be any different than if each had been effected from its own site. …
This kind of approach appears to have been adopted by the [Town Planning Appeal] Tribunal in BP Australia Pty Ltd v City of Perth [(1994) 10 SR (WA) 110]. The Tribunal … said (at 114):
…
A single development application can be considered for different and distinct uses on the one site and it is important not to lump independent uses into one dominant use for the purpose of classification. The law is stated by Glass JA in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161 (cited with approval by Gibbs CJ in Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 217; 51 LGRA 114 at 117):
'Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to enquire which of the multiple purposes is dominant.'
All methods of sale are from the same premises, utilising the same facilities and the combination of these methods of sale demand greater floor space than that of a 'shop', to accommodate large cool rooms, storage rooms and work areas.
(Page 7)
12 Chisholm also refers to the separate and specific definition of certain retail uses in DPS 2, such as 'convenience store' and 'corner store', which take those retail uses outside the generic use 'shop'.
13 In Gull Petroleum, the Supreme Court of Western Australia (Full Court) determined, at [56], that in the circumstances of the case before it, the fact that a fast food outlet shared a room and cashier's desk with a service station did not:
have the result that the fast food sales use which, had it been carried out from separate premises, would have been classified as a 'shop' use should no longer be classified as such. Nor can it have the result that the service station use has been so altered as to mean that it should no longer be categorised as such. The fact that the fast food outlet and service station share a cashier does nothing to alter the character of the fast food outlet as that of a shop or that of the service station as a service station. Nor does the fact that the fast food is sold from a site used also for a service station alter the character of either the fast food outlet or the service station. These remain … two distinct uses, each maintaining its essential characteristics and neither of which subserves the other.
14 Similarly, in this case, the development application is in substance for consent under DPS 2 for two different and distinct land uses on the site which are capable of operating independently, namely 'shop' and 'warehouse'. The fact that both of these uses are intended to be carried out from the same premises and using the same facilities does not alter this result. The inclusion of the wholesale and distribution of primary products does not change the fundamental character of the retail component of the proposal from that of 'shop'; it simply adds another use, namely 'warehouse', to the 'shop' use proposed to be carried out on the site. The character of each use remains unaffected by the fact that the site is shared between them. Neither use is incidental or ancillary to the other. Furthermore, the wholesaling of primary products from the site is not something that requires a separate and specific definition of the retail component of the proposal from the generic 'shop'.
15 Finally, there is no evidence to suggest that a 'growers mart' requires any greater or different facilities, floor space, coolrooms, storerooms or work areas than would 'shop' and 'warehouse' uses of the scale proposed in the development application involving retail sale and wholesale distribution of primary products at the site.
16 Chisholm also submits that 'growers mart' land use was recognised by both the Council and the Western Australian Planning Commission by their approval in 2007 of the Drovers Place Precinct Local Structure
(Page 8)
- Plan Structure Plan No 47 (LSP 47) as an agreed structure plan under cl 9.8 of DPS 2. LSP 47 identifies 'use permissibility' in relation to two allotments located at the intersection of Joondalup Drive and Wanneroo Road as follows:
Land use permissible within this precinct shall be restricted to: retail nursery with incidental café, landscape supplies and growers mart which means any land or buildings used for the wholesale, distribution and retail sale of primary products including fruit and vegetables, meat, fish and bread.
Where an Agreed Structure Plan imposes a classification on the land included in it by reference to reserves, zones (including Special Use Zones) or Residential Density Codes, until it is replaced by an amendment to the Scheme imposing such classifications:
(a) the provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme; … (emphasis in bold added)
18 Clause 9.8.3 of DPS 2 states that, without limiting the generality of cl 9.8.2, under an Agreed Structure Plan:
…
(f) any other provision, standard or requirement in the Structure Plan shall be given the same force and effect as if it was a provision standard or requirement of this Scheme, but subject to the provision of subclause 9.8.3(b) allowing for a specific variation to a Scheme standard or requirement by a Structure Plan, if there is any other inconsistency or conflict not addressed as an intended variation by the Agreed Structure Plan, the provision requirement or standard of the Scheme shall prevail;
19 Chisholm submits that, in accordance with cl 9.8.2(a) of DPS 2, the definition of 'growers mart' in LSP 47 is incorporated into DPS 2 and is a separate and specific classification of use under the Scheme. Furthermore, Chisholm submits that the incorporation of LSP 47 into DPS 2 has the effect that 'growers mart' cannot reasonably be determined as falling within the interpretation of the use category 'shop' under the Scheme. Finally, Chisholm submits that the adoption of LSP 47 implies that the City recognised that there was no specified use class already within DPS 2 which encompassed the use of land as a growers mart, as defined in LSP 47 and as proposed in the development application before the Tribunal.
(Page 9)
20 Chisholm's arguments based on LSP 47 have some attraction. The 'use permissibility' provision in LSP 47 is expressed in a way that appears to identify 'growers mart' as a land use category and to define it as 'any land or buildings used for the wholesale, distribution and retail sale of primary products including fruit and vegetables, meat, fish and bread'.
21 However, ultimately, Chisholm's arguments based on LSP 47 cannot succeed. While the provisions of LSP 47 have the same force and effect as if they formed part of DPS 2, their application under DPS 2 is specifically limited by cl 9.8.2(a) of DPS 2 to the land that is subject to the structure plan. Moreover, cl 9.8.3(f) of DPS 2 recognises that, while a structure plan may make a specific variation to a Scheme standard or requirement, 'if there is any other inconsistency or conflict not addressed by an intended variation by the Agreed Structure Plan, the provision requirement or standard of the Scheme shall prevail'. Having regard to these provisions and the specific terms of LSP 47, it could not have been the intention of that instrument to have any effect or consequence beyond its specific area of application.
22 Furthermore, as the City submits, the 'growers mart' defined in LSP 47 reflects a deliberate decision to specify and limit the extent of commercial activity permissible on the land subject to the structure plan. The definition of 'growers mart' was not intended to, and did not, have the effect of creating or recognising a composite or hybrid land use. Rather, the 'growers mart' definition facilitated the carrying out of development involving two land uses recognised by DPS 2, namely 'shop' and 'warehouse', and limiting the range of goods that can be wholesaled, distributed and retailed from the particular land. The reference to 'growers mart' in LSP 47 conveniently achieves both of these objectives.
23 Finally, there is no expert town planning evidence before the Tribunal which suggests that 'growers mart' is a recognised category of land use planning.
24 The Tribunal therefore does not consider that the adoption of LSP 47 involves or implies a recognition that 'growers mart' is a category of land use and the proper classification of the proposed development under the Scheme.
25 The proposed development is properly classified as involving the use of the site for the purposes of 'shop' and 'warehouse' which are both specifically mentioned in the Zoning Table of the Scheme. Although the two land uses
(Page 10)
- proposed are intended to be carried out from the same premises and using the same facilities, they are, as a matter of town planning, different and distinct uses, each of which can reasonably be determined as falling within the interpretation of one of the use categories in the Zoning Table. Consequently, the proposed development does not involve an unlisted use for the purposes of cl 3.3 of DPS 2.
Conclusion
26 The proposed development involves the carrying out of two different and distinct land uses on the site, although in the same premises and using the same facilities. The proposed land uses are 'shop', which is prohibited on the site, and 'warehouse', which is capable of approval on the site. The proposed development does not involve a composite or hybrid land use described by Chisholm as 'growers mart'.
Orders
27 The Tribunal makes the following orders:
1. The preliminary issue is answered as follows:
'The proposed development involves two different and distinct land uses, each specifically mentioned in Table 1 of the City of Wanneroo District Planning Scheme No 2 (DPS 2), namely "shop" and "warehouse", and not an unlisted use for the purpose of cl 3.3 of DPS 2.'
2. The proceedings are adjourned to a directions hearing at 11 am on 7 November 2008 in order to consider further programming of the matter.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
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