CHURCHES and SHIRE OF COLLIE
[2019] WASAT 76
•24 SEPTEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CHURCHES and SHIRE OF COLLIE [2019] WASAT 76
MEMBER: MS L EDDY, SENIOR MEMBER
HEARD: 11 AND 12 JUNE 2019
WRITTEN SUBMISSIONS FILED ON 26 JUNE
DELIVERED : 24 SEPTEMBER 2019
FILE NO/S: DR 21 of 2019
BETWEEN: DAVID CHURCHES
Applicant
AND
SHIRE OF COLLIE
Respondent
Catchwords:
Town Planning - Development application - Land use classification - Whether transport depot - Whether car park and motor vehicle repair uses - Whether separate storage use - Consistency in decision making - Previous approval in relation to same land
Legislation:
Environmental Protection (Noise) Regulations 1997
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 67, Sch 2, reg 10(4)
Planning and Development Act 2005 (WA), s 252(1), s 257B
Shire of Collie Local Planning Scheme No. 5, cl 4.3.2, cl 4.4, cl 4.4.1, cl 4.4.2, cl 5.11.4, cl 5.11.4(a), cl 10.2, Pt 2, Sch 1, Sch 2
State Administrative Tribunal Act 2004 (WA), s 27
Result:
Adjourned
Category: B
Representation:
Counsel:
| Applicant | : | Mr C Wallace |
| Respondent | : | Mr A Roberts |
Solicitors:
| Applicant | : | Lavan Legal |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
APP Corporation Pty Ltd and City of Perth [2011] WASAT 132
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223
BGC (Australia) Pty Ltd and Shire of Murray [2010] WASAT 180
Chiefari v Brisbane City Council [2005] QPLER 500
Churches and Shire of Collie [2015] WASAT 23
Consolidated Realities Pty Ltd v Baulkham Shire Council (1964) 10 LGRA 120
Dilatte & Anor v MacTiernan [2002] WASCA 100
Garvey and City of Wanneroo [2014] WASAT 73
Gay and City of South Perth [2017] WASAT 94
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
Humich and City of Gosnells [2008] WASAT 298
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Minister for Immigration and Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332
Mustac v Medical Board of Western Australia [2007] WASCA 128
Ord Irrigiation Cooperative Ltd v Department of Water [2018] WASCA 83
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Rossi and City of Bayswater [2010] WASAT 33
Segal v Waverly Council [2005] NSWCA 310
Swanhill Enterprises Pty Ltd and City of Perth [2011] WASAT 65
The Bethanie Group Pty Ltd and City of Stirling [2016] WASAT 6
West Coast Enterprise Pty Ltd and Shire of Exmouth [2007] WASAT 316
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In October 2018, Mr David Churches (applicant) applied for development approval under the Shire of Collie's (Shire or respondent) Local Planning Scheme No. 5 (Scheme or LPS 5) to use his property at Lot 51 Patstone Road, Collie (site) for what he describes as a transport depot (proposed development). Pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), the applicant sought review of the deemed refusal of the proposed development in the Tribunal. Following an invitation to reconsider the proposed development from the Tribunal, in May 2019 the respondent refused that application essentially on the basis that it considered that the proposed development is properly categorised as 'industry light' under LPS 5 and is therefore a use that is not permitted in the Rural 1 zone in which the site is located.
It is relevant that in 2015 the Tribunal considered and determined an application to develop the site, which the Tribunal classified as a 'transport depot' use under LPS 5 (2015 approval). The Tribunal's decision to approve that application was published in Churches and Shire of Collie [2015] WASAT 23 (Churches). There is a dispute between the parties as to whether or not the applicant substantially commenced the development the subject of the 2015 approval and consequently whether or not the 2015 approval has now lapsed. That dispute is in issue in different proceedings between the same parties in the Tribunal, which proceeding has not yet been listed for a final hearing. Accordingly, at the hearing of this matter, that issue was not argued and it is appropriate for the Tribunal to assume, for the purposes of this matter only, that the 2015 approval has lapsed (as otherwise this application is potentially a hypothetical application only).
The relative similarities and differences between the development the subject of the 2015 approval and the proposed development will be canvassed later in these reasons.
If the development the subject of the 2015 approval is not materially different from the proposed development, the applicant submits that the 'principle of consistency in decision-making' should be applied such that the proposed development should be approved: Dilatte & Anor v MacTiernan [2002] WASCA 100 (Dilatte). Even if this is not the case, the applicant submits that the proposed development, which is properly classified as 'transport depot' under LPS5, should be approved on its merits. No argument was made that any form of issue estoppel applies in these proceedings.
The respondent submits that the 'principle of consistency in decisionmaking' does not apply in this case because there are material differences between the development the subject of the 2015 approval and the proposed development and/or there were errors in the decision that resulted in the 2015 approval. Even if the principle applies, the respondent submits that this does not relieve the Tribunal from its obligation to determine the correct land use classification that applies to the proposed development, which the respondent says will result in a determination that the proposed development is not capable of approval under LPS 5. The respondent originally submitted that the proposed use should be described as 'industry light' under LPS 5, but in closing the respondent submits that the proposed use is really three separate uses: 'car park', 'storage' and 'motor vehicle repair'.
Planning framework
The parties are not in dispute in relation to the relevant planning framework that applies to this case. It includes LPS 5, the Shire's Local Planning Strategy endorsed by the Western Australian Planning Commission in 2009 (LPS 2009) and the Shire's draft Local Planning Strategy 2018 (draft LPS 2018).
Clause 10.2 of LPS 5, which lists matters that are to be given due regard when determining a development application, has been replaced by cl 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations): s 257B of the PD Act and reg 10(4) of the LPS Regulations and see Puma Energy Australia and City of Cockburn [2016] WASAT 36, at [36]-[47]. The relevant matters for the purposes of this application are contained in paragraphs (a), (b), (g) and (n) of cl 67 of Sch 2 of the LPS Regulations. Having said that, the respondent did not assert that, subject to the proposed development being a use that is capable of being approved in the relevant zone, the proposed development should be rejected on its merits.
The site is zoned 'Rural 1' under LPS 5. The land use 'transport depot' is a 'D' use in the 'Rural 1' zone, which means that 'the use is not permitted unless the local government has exercised its discretion by granting planning approval': cl 4.3.2 and Table 1: Zoning Table of LPS 5. 'Industry-light' is an 'X' use in the 'Rural 1' zone, which means 'a use that is not permitted by the Scheme': cl 4.3.2 and Table 1: Zoning Table of LPS 5.
The terms 'transport depot', 'industry-light', 'industry', 'car park', 'storage' and 'motor vehicle repair' are defined in Pt 2 of Sch 2 of LPS 5 as follows:
"car park" means premises used primarily for parking vehicles whether open to the public or not but does not include any part of a public road used for parking or for a taxi rank, or any premises in which cars are displayed for sale[.]
…
"industry" means premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances and includes premises on the same land used for:
(a) the storage of goods;
(b) the work of administration or accounting;
(c) the selling of goods by wholesale or retail; or
(d)the provision of amenities for employees, incidental to any of those industrial operations[.]
…
"industry-light" means an industry:
(a)in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality; and
(b)the establishment or conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services[.]
…
"motor vehicle repair" means premises used for or in connection with:
(a)electrical and mechanical repairs, or overhauls, to vehicles; or
(b)repairs to tyres,
but does not include premises used for recapping or retreading of tyres, panel beating, spray painting or chassis reshaping[.]
…
"storage" means premises used for the storage of goods, equipment, plant or materials[.]
…
"transport depot" means any land or buildings used for the garaging of motor vehicles used or intended to be used for carrying goods or persons, or for the transfer of goods or persons from one motor vehicle to another of such motor vehicle and includes ambulance depot, fire brigades depot and milk depot) and includes maintenance, management and repair of the vehicles used, but not of other vehicles, and may include overnight accommodation on-site for the transport workers[.]
As is stated in the Respondent's Statement of Issues Facts and Contentions at paragraphs 34 and 35, and agreed by the applicant:
The site is included in Development Investigation Area 3 Patstone Road (West) under the Shire's 2009 Local Planning Strategy. With respect to this investigation area, section 5.11 of the Local Planning Strategy indicates that the area is one for possible future residential development and that it be included within a rural residential zone with a minimum lot size of one hectare. However, this was to be subject to future strategic planning being undertaken.
…
Under the respondent's draft LPS 2018, the Site is located in planning precinct 'Industrial 2' for which the proposed land uses are light and service industry and industry (low impact). It is envisaged that under a future Local Planning Scheme No. 6 an 'industrial development' zoning would be applied to the Site. It is also proposed that structure planning would accompany future rezoning and that issues such as lot size, drainage, bush fire management, transport, landscaping, service access and other issues would first need to be examined and resolved.
What is the 'principle of consistency in decision making'?
In Dilatte, his Honour Malcolm CJ (as he was then), with whom Wallwork J and White AUJ agreed, considered in detail the appellants' submission that the decision of the Minister for Planning to deny the applicants planning approval to develop and extend a dwelling on Preston Point Road was manifestly unreasonable and should be set aside. Under the Town Planning and Development Act 1928, which was then in force, an appeal from the decision of a local government concerning an application for planning approval could be determined by either the Town Planning Appeal Tribunal or the Minister for Planning. The application for planning consent that was the subject of the proceedings before the Court was summarised as follows (Dilatte at [47]-[50]):
47In essence the situation which developed was that, having obtained approval from the previous Minister, the applicants sought a further adjustment or variation to the proposal approved by the former Minister to take account of developments undertaken or proposed, so as to protect the amenity of their land by way of a variation of what had previously been approved. These proposals were prompted, in particular, by what was happening to nearby properties and particularly on the eastern side.
48It is apparent from the decision by the current Minister that, notwithstanding her acknowledgement that the only variation to the plan approved by the former Minister was to the front set-back, the current proposal:
"… still forms part of a new application and it is therefore necessary for me to consider it in its entirety and, in doing so, my conclusions are not the same as the former Minister."
49It was submitted on behalf of the applicants that this approach was unreasonable and that it was not proper for the Minister to consider the whole matter afresh, given that the Minister was acting as a tribunal considering an appeal from an administrative decision. An appeal to the Minister, of course, is an alternative to an appeal to the Town Planning Appeal Tribunal. In this context, however the appeal tribunal is constituted, there is a need for consistency in decision making and the application of appropriate town planning principles.
50In the present case, the only variation from the proposal previously approved was to bring forward bedroom 1 slightly, but still not exceeding the frontage set-back of 7.5 m on the west side. On the eastern side, while the balcony encroached, it was a relevant consideration that the development of No 136 had permitted a deck to project beyond the 7.5 m set-back line.
In commencing consideration of whether the decision in question was unreasonable, Malcolm CJ cited Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury), two earlier cases in relation to the proper exercise of a statutory discretion, and some cases where the approach in Wednesbury had been followed, including in the context of town planning: Dilatte, at [51]-[56]. At this point, Malcolm CJ pointed out that the matter before the Court in Dilatte was not a merits based review, but rather concerned prerogative writ applications, where the two main grounds of review are the doctrines of jurisdictional error and ultra vires. His Honour went on to describe where a decision-maker has failed to take into account a relevant consideration or has taken into account an irrelevant consideration as one of a range of circumstances in which the doctrine of ultra vires may be invoked: Dilatte at [57]. His Honour then said at [58] and [61] (citations omitted):
These cases are aspects of unreasonableness because they lead to inconsistent and capricious decisions, although decision by local authorities are not binding precedents and each application must be considered on its own merits. Decisions in other cases, and the consequences of the decisions in them may be relevant and may be taken into account.
…
Inconsistency has the potential of bringing the decision making process into disrepute because it suggests that the decision is arbitrary, rather than one made in accordance with a disciplined approach reflecting the application of sound town planning principles and consistent with commonly accepted notions of justice.
In Dilatte at [62], Malcolm CJ explained (citations omitted):
The determination whether there has been inconsistency between successive decision depends upon a comparison of the circumstances in each case and, in particular, to those relevant to each decision. The comparison obviously involves questions of fact and degree. The test is that ordinarily there would need to be "a similarity, if not a virtual duplication of circumstances and conditions to establish the basis for a complaint of inconsistency". Decisions by a council with respect to planning applications made by the same applicant in respect of the same land should ordinarily be consistent. For example, it is not open to a planning authority simply to change its mind about the merits of a particular application and withdraw a consent or approval previously made and communicated, even if the consent or approval has not been acted upon by the applicant.
So, it seems from the reasons in Dilatte, that it can be understood that a lack of consistency when making a planning decision is potentially a basis for finding a decision maker had been unreasonable in exercising the decision-making discretion.
The concept from Dilatte, described by the Tribunal as 'consistency in decision making', has been applied in the Tribunal in a number of planning cases subsequent to the Dilatte decision: BGC (Australia) Pty Ltd and Shire of Murray [2010] WASAT 180; Swanhill Enterprises Pty Ltd and City of Perth [2011] WASAT 65 (Swanhill); APP Corporation Pty Ltd and City of Perth [2011] WASAT 132; Garvey and City of Wanneroo [2014] WASAT 73; The Bethanie Group Pty Ltd and City of Stirling [2016] WASAT 6; Gay and City of South Perth [2017] WASAT 94. The same concept has also been expressed as a reflection of orderly and proper planning by the Tribunal: Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71 (Hanson); Rossi and City of Bayswater [2010] WASAT 33. In Hanson at [54], the Tribunal said:
In circumstances where the planning framework is the same and the circumstances have not changed in any substantial way, it is in the interests of orderly and proper planning that planning decisions in relation to a site are made in a consistent way.
The notion of orderly and proper planning was explained in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226, at [179][180] (citations omitted):
… The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
It seems, therefore, that in the context of discretionary planning determinations, orderly and proper planning will require consideration to be given to the desirability of consistency when making decisions.
This does not mean that a different decision cannot be made where an earlier decision involved a serious and important mistake or error: Dilatte at [63] citing Consolidated Realities Pty Ltd v Baulkham Shire Council (1964) 10 LGRA 120 at 122-123.
The Tribunal has previously considered that there is a change in circumstances where a previous decision has been made based on misleading or inaccurate information, where the subsequent decision maker has accurate and correct information before it: Swanhill at [57].
Care should be taken not to overly elevate the concept. An administrative decision will be unreasonable if, having regard to the scope and purpose of the statutory power in question, the discretion has been abused: Minister for Immigration and Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332 (Li) at [67]. One must remember, in the context of development applications under a local planning scheme, for example, cl 67 of Sch 2 of the LPS Regulations provides that orderly and proper planning is one of the matters to which due regard must be given in exercising the discretion. Similarly, under the Metropolitan Region Scheme, orderly and proper planning is one of the factors (together with amenity) one should have regard to in determining a development application: cl 30(1). So one cannot elevate the desirability for consideration to be given to consistency in decision making (for the purposes of orderly and proper planning) to something greater than a matter to which due regard should be given.
To the extent that consistency of decision-making is more generally an aspect of reasonable decision-making by an administrative decision maker, if the exercise of the discretion takes into account relevant factors, does not take into account irrelevant factors, is not an abuse of the discretionary power and does not result in a decision that lacks an evident and intelligible justification, then it would seem to be difficult to argue that the decision was unreasonable, simply because it was not consistent with a prior decision: Li at [63]-[76].
If the decision-maker in question is the Tribunal, then regard must also be had to the fact that the practice of judicial comity does not apply to the Tribunal: Mustac v Medical Board of Western Australia [2007] WASCA 128; and see Segal v Waverly Council [2005] NSWCA 310.
What was the development the subject of the 2015 approval and what is involved in the proposed development now under consideration?
The development application the subject of the 2015 approval was set out in an amended proposal described in a letter from Planning Solutions dated 14 December 2014 together with associated plans, which the Tribunal has a copy of at tab 4 of Exhibit 2, and is summarised in the reasons for decision in Churches (at [4]). Later in the decision, Senior Member McNab noted that the applicant had withdrawn from the application development of 'the proposed first (or larger) shed': at [13]. Senior Member McNab noted that 'if that proposal is proceeded with in the future then this matter will come back to the Shire for assessment': at [13].
The proposal the subject of the 2015 approval, as described in the letter dated 14 November 2014 (tab 4 of Exhibit 2), may be summarised as follows:
•The application is described as a 'proposed Transport depot and Industrial material Lay Down Area' (page 1), but more specifically the proposal seeks 'to provide for the parking and maintenance of vehicles and the temporary storage of goods associated with that use' (page 2).
•The development is limited to the rear portion of the site (approximately 11.789 hectares and up to 256 metres form the rear boundary) with the remaining, approximately 57% of the total area of the site to stay in its current state and being utilised for rural purposes (page 3).
•There is to be maximum employment of five people, maximum of 20 light vehicles accessing and egressing the site daily, and a maximum of 50 heavy vehicle movements per day. Low loader movements will occur from time to time when large pieces of materials arrive or depart from the site and the largest vehicles accessing the site will be prime movers, low loaders, bulldozers and tractors (page 2).
•The Transport depot is for the benefit of two related businesses, R32 Construction and Collie Steel (pages 23):
•The R32 Construction component comprises the parking and maintenance of vehicles used for fire and emergency services, including the preparation and maintenance of fire breaks, and in relation to emergency fire-fighting operations, as well as the preparation and maintenance of critical rural infrastructure and rural recovery of vehicles. The primary use of vehicles is for the carrying of goods, which may include other vehicles and sea containers.
•The Collie Steel component comprises the parking and maintenance of vehicles used for the collection and destruction of steel items, and to facilitate the transfer of steel items collected from major industrial sites and farms. The storage of materials onsite is intended to be temporary.
•Two (in the hearing amended to one) workshop buildings are proposed for the purposes of providing sheltered space for the storage, maintenance, management and repair of vehicles used in the operation of the development:
•Workshop 1 (deleted at hearing) having floor dimensions of 40 metre by 55 metre, wall height of 12.233 metres and ridge height 14.250 metre.
•Workshop 2 having floor dimensions of approximately 30 metre by 30 metre, wall height of 3 metre and a 10 metre dome, with the walls to be comprised of shipping containers stacked single height with a domed roof on top.
•Caretakers building with floor dimensions of approximately 12 metre by 12 metres and approximately 5 metre in height.
•An administration office transportable building with floor dimensions of approximately 12 metre by 12 metre and approximately 5 metre in height.
•Shipping containers to be used on site include 7-8 containers (4-5 of those storing cars), 15 shipping containers owned by R32 Construction for storage of various materials and equipment related to the Transport Depot and eight shipping containers forming the walls of one of the workshops. A maximum of 50 storage containers are proposed (page 5).
•Materials are collected from major industrial sites and farms, which may be required to be unpacked, sorted and collected for the purpose of transferring the materials from one vehicle to another, prior to being sent to recyclers.
•Landscaping along the eastern front portion of the site and additional planting along the line delineating the transport depot zone.
On the evidence before him, which included evidence from Mr Churches and from two expert planners, Senior Member McNab was satisfied that (at [26]) (original emphasis):
1)the use of shipping containers (a common enough sight in transport depots, as the Tribunal observed in relation to the approved Williams Road transport depot);
2)the use thereof for the storage of equipment and items directly associated with a transport depot;
3)the parking of industrial vehicles and their mechanical attachments of the nature indicated; and
4)the temporary storage of goods for transfer to other vehicles,
all fall within the central core of what town planners would ordinarily regard as transport depot uses and activities, or uses and activities reasonably incidental thereto. In other words, all of the proposed activities, other than the personal storage of certain Nissan racing cars (apparently proposed as a more or less permanent, and a not insignificant use of the land for hobby or recreational purposes) would be permissible on the site.
In reaching its conclusion, the Tribunal applied the following analysis in interpreting the use classification 'transport depot' in LPS 5 (at [24][25]):
It is plain that a literal reading of the definition of 'transport depot' in LPS 5 would throw doubt on at least some of the elements of the applicant's proposed transport depot. However, the definition must be read in a practical and purposive way, having particular regard to the scale of what is proposed and the practical impact on the surrounding amenity caused by the proposed development in the immediate locality. Such a reading, on the facts of this case, would favour the applicant.
Moreover, there are textual indications in the definition itself that support this view. For example, the use of the word 'includes' is used by the drafter to extend the use of permitted activities to include such activities as a 'milk depot'. This suggests that no narrowing down of the use class was intended by the drafter.
It is also relevant to note that the Tribunal considered that the experts' joint view was that the 'so-called incidental matters could be largely regulated by the imposition of suitable conditions' and consequently the Tribunal stated '[t]hat this appears to be possible is reflected in the draft conditions, considered below': Churches at [21]. The draft conditions referred to relevantly included:
9.Materials being transferred, not incidental to the operation of the transport site, shall not be present onsite for a period longer than three (3) consecutive months.
10.No processing of materials shall occur onsite, including the dismantling of parts for distribution.
11.Upon entering the site, no machinery or parts stored onsite shall have traces of contaminants present.
12.There shall not be greater than thirty (30) sea containers onsite at any given time. Any sea containers permanently on site shall not store materials other than those which are incidental to the operation of the transport depot.
The description of the proposed development and accompanying plans are located at tab 10 of Exhibit 2, which are subject to the amendments described in the letter from Planning Solutions dated 2 April 2019 and the accompanying amended plan located at tab 11 of Exhibit 2. The proposed development, as outlined in the 2 April 2019 letter, can be summarised as follows:
•The proposed development is for 'a depot for the parking and maintenance of commercial vehicles and the storage of articles' (page 3).
•The depot is to be located on the western (rear) 12.2 hectare portion of the site and will include:
•Two workshops: workshop 1 having floor dimensions of 40 metre by 55 metre, wall height of 12.233 metre and ridge height of 14.25 metre; workshop 2 having floor dimensions of 30 metre x 30 metre, wall height of 3 metre and 10 metre dome height, with the walls comprised of single height shipping containers with a dome roof;
•A dome shelter mounted on shipping containers stacked single height with dimensions of 16.9 metre by 24 metre and a height of approximately 6.1 metre;
•Single level accommodation block and a separate toilet block;
•Office building with dimension of approximately 12 metre by 3 metre with a 2.4 wide verandah; and
•Various hardstand roadways and gravel bands for the 'passage of vehicles and goods' (page 3).
•Depot intended to be used by two businesses Collie Steel and R32 Construction. At page 3 the following is stated:
The depot will be used for the parking of various vehicles and storage of articles used by the businesses including shipping containers, steel beams, pipes, flanges and machinery parts collected from major industrial sites and farms, timber and other articles. Vehicles to be parked and maintained at the depot include transport vehicles (prime movers, flat-bed, semi-trailers, low loaders, side tippers, road trains, etc), construction vehicles (including cranes, bulldozers, wheel loaders, track loaders, forklifts), agricultural vehicles (tractors, mowers, cultivators, bailers, rakes, etc), and vehicles used for firefighting purposes.
•A maximum of 20 light vehicle movements and 50 heavy vehicle movements accessing and egressing site per day.
•Up to five people employed at site (excluding drivers and heavy vehicle plant operators).
•Depot will operate largely during daylight hours although occasionally there will be work undertaken during night-time hours, conditions permitting.
•A 30 metre wide vegetation strip along the Patstone Road frontage, along the gully in the eastern portion of the site and along a 230 metre length of the southern boundary (orchard vegetation).
Senior Member McNab was persuaded, on the evidence before him, that the development the subject of the 2015 approval fit the definition of 'transport depot'. That determination of fact was based on the written and oral evidence before that Tribunal. This Tribunal has some of the written evidence that was available to the previous Tribunal before it, but not does not have the full transcript of the previous proceedings or a full copy of the exhibits tendered in those proceedings. In particular, Senior Member McNab was focused on the storage aspect of the proposal and whether this was a separate use from the 'transport depot' use.
It is apparent, from the reasons in Churches, that Senior Member McNab was persuaded that use of the land for the storage of equipment associated with the parking and maintenance of vehicles, and some temporary storage of goods that are to be transferred from one vehicle to another, could come within the land use 'transport depot' as defined in LPS 5. From the reasons in Churches, it seems that the focus for the Tribunal, presumably because of the positions run by the parties in the proceedings, was whether the storage aspect of the development was a separate and distinct use from the 'transport depot'.
I would agree that the use of land or buildings for the storage of items involved in the 'maintenance, management and repair' of vehicles being used in the transport depot is implicit in the definition of 'transport depot' in LPS 5. In my view, whether the storage of goods that are being, or are to be, transferred from one motor vehicle to another is part of a 'transport depot' use as opposed to being a separate use, will be a question of fact and degree: West Coast Enterprise Pty Ltd and Shire of Exmouth [2007] WASAT 316, at [39]-[41]; Humich and City of Gosnells [2008] WASAT 298 at [38].
The physical aspects of the proposed development is similar in many respects to the physical aspects of the development the subject of the 2015 approval. The main differences are the addition of the second workshop (excluded from the 2015 approval) and the dome shelter, some minor alterations to the size and location of the office and accommodation structures and the change to the location of the landscaping. In light of the fact that Senior Member McNab considered that if it were proposed to add the second workshop back into the development, it would be necessary to reconsider the matter, it seems that he considered that this aspect would provide a materially different aspect to the development that was the subject of the 2015 approval. In my view, the second workshop and the addition of the dome shelter are new elements that provide material physical differences between the development the subject of the 2015 approval and the proposed development.
In any event, in these proceedings, the Tribunal is presented with a differently worded development application, as well as new written and oral evidence going to the facts of what is involved in the proposed development.
I do not see, in those circumstances, that it is possible, or appropriate, to simply apply the conclusion reached in the 2015 approval to the proposed development. This Tribunal is required to determine the correct land use classification for the proposed development on the material presently before the Tribunal.
Appropriate land use classification
The respondent submits, without providing any authority for the proposition, that the onus lies with the applicant to convince the Tribunal that the proposed development should be classified as a 'transport depot'. These proceedings are within the Tribunal's review jurisdiction, where the task of the Tribunal is to review the reviewable decision by holding a hearing de novo and to determine the correct and preferable decision at the time of the decision upon the review: s 27 of the State Administrative Tribunal Act 2004 (SAT Act). It is safest not to refer to any 'onus' in review proceedings, but rather to have regard to the nature, extent and limits of the power provided to the Tribunal by the enabling Act and the SAT Act: OrdIrrigiation Cooperative Ltd v Department of Water [2018] WASCA 83 at [115].
It seems the respondent originally submitted that the correct categorisation of the proposed development was 'industry-light' because they apprehended that some form of processing or assembly of goods was contemplated. Following the evidence of Mr Underwood, the town planner instructed by the applicant, to the effect that on his instructions no processing or assembly of goods was in fact contemplated, the respondent abandoned this argument. Rather, they now submit that the proposed development does not fit the 'transport depot' definition and is better understood as a combination of three land use categories 'car park', 'storage' and 'motor vehicle repair'.
The definition of 'transport depot' in LPS 5 contemplates the transfer of goods from one vehicle to another but does not expressly include storage of goods or other articles, other than 'motor vehicles used or intended to be used for carrying goods and services'. There is a separate land use category of 'storage'. 'Transport depot' includes the garaging of motor vehicles, but, having regard to the separate definition in LPS 5 of 'car park', the distinction between the two focuses on the parking of vehicles 'used or intended to be used for carrying goods or persons' in the case of a transport depot. In addition, 'transport depot' contemplates the maintenance, management and repair of vehicles used in the transport depot, but not other vehicles. The land use 'motor vehicle repair' contemplates more generally the repair and overhaul of any vehicles generally.
Clause 4.4.1 of LPS 5 provides that 'where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use'. The definitions of 'car park' and 'motor vehicle repair' are in general terms. 'Transport depot' is a more specific use that incorporates the parking and repair or maintenance of a particular type of vehicle, that is, vehicles that are used or intended to be used for carrying goods or persons. Having said this, the Tribunal is aware that one should construe a local planning scheme having regard to the fact that 'planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and common-sense, and not overly technical way, and in a fashion which will best achieve their evident purpose': Chiefari v Brisbane City Council [2005] QPLER 500, at 502.
The proposed development is described as 'substantially commenced transport depot' in the original development application (tab 10 of Exhibit 2) and as 'the parking and maintenance of commercial vehicles and the storage of articles' in the letter accompanying the development application (tab 10 of Exhibit 2) as well as in the letter outlining the amendments that constitute the proposed development now under consideration (tab 11 of Exhibit 2).
The term 'commercial or heavy haulage vehicle' is defined in Pt 2 of Sch 1 of LPS 5 as 'a vehicle which is used and designed for use for business, trade, industrial or commercial purposes and includes any trailer or other attachments to them and includes earthmoving machines, whether self-propelled or not'. This definition is contained in Pt 2 of Sch 1, which is headed 'land use definitions', but there is no commercial or heavy haulage vehicle parking land use category contained in the zoning table in LPS 5. The term is only used in cl 5.11.4(a) of LPS 5, which provides:
No parking of commercial or heavy haulage vehicles shall be permitted on any "residential" zoned lot without the planning approval of the local government, having due regard to aesthetic and visual amenity, except as permitted under this scheme or for the purpose of delivery or loading normally associated with domestic uses.
Thus it would seem that the parking of commercial or heavy haulage vehicles is an (annually renewable) approval that can be obtained under cl 5.11.4 of the Scheme in relation to residential zoned land.
Another potential implication of the defined term 'commercial and heavy haulage vehicle' and the separate identification of the need for planning approval for the parking of commercial and heavy haulage vehicles in cl 5.11.4 of the Scheme is that the 'vehicles' referenced in the defined land use of 'car park' do not include 'commercial and heavy haulage vehicle(s)'. 'Car park' is an 'X' or prohibited use in the residential zone, so it might be that the reference to 'vehicle' in the definition of that land use does not include 'commercial and heavy haulage vehicle' otherwise cl 5.11.4 of LPS 5 is inconsistent with the zoning table. Alternatively, 'car park' uses the seemingly wider term 'vehicle' and this could be understood to include all vehicle types, including commercial or heavy haulage vehicles. Arguably, cl 5.11.4 of LPS 5 is not inconsistent with this understanding of the term 'car park' because what is contemplated by cl 5.11.4 is ad hoc parking of commercial or heavy haulage vehicles as opposed to the specific use of land for the purpose of a 'car park' as defined in the Scheme. On this basis there is no necessary inconsistency between 'car park' being a prohibited use in the residential zone and cl 5.11.4 of the Scheme. Having regard to the language used, and the fact that commercial or heavy haulage vehicle parking is not a land use mentioned in the zoning table of LPS 5, I am of the view that the latter is the correct way to understand these provisions of the Scheme. Therefore, the land use of 'car park' could include the parking of commercial or heavy haulage vehicles.
The vehicles to be parked and maintained under the proposed development are vehicles used by the two businesses: Collie Steel and R32 Construction, and are listed at page 4 of tab 11 of Exhibit 2. Neither the letter accompanying the development application nor the letter outlining the amendments specifies what those vehicles do, or what the work of the two businesses concerned is. Both letters identify that there will be a maximum peak of 20 light vehicle movements and 50 heavy vehicle movements accessing and egressing the site per day, 'although normal daily operations will see far less vehicle movements that the peak' (page 3, tab 10 of Exhibit 2; page 4, tab 11 of Exhibit 2).
Mr Underwood gave evidence to the Tribunal about the proposed development and the two businesses involved based on 'his instructions' and not from his personal knowledge. He advised the Tribunal that Collie Steel is primarily involved in the business of collecting steel and recycling it, although they also supply steel to other businesses. R32 Construction is primarily an industrial builder. Both are also accredited transport companies and R32 Construction provides transport of items (such as containers, equipment, construction materials) from one place to another (from site A to site B). At the end of the day vehicles would be parked on site. Currently these vehicles park on land used by the two businesses and they are looking to move them to the site in order to free up land at those other locations. Mr Underwood did not have any more than the most general understanding of what each of the various vehicles to be parked at the site is intended to be used for. Mr Underwood stated that the transport vehicles are used by both companies in their transport businesses and the construction vehicles are used by R32 Construction in their construction activities. The agricultural vehicles are used partly in carrying out agricultural activities on the site and are sometimes hired out. There are some vehicles used for firefighting purposes, both the construction or maintenance of firebreaks and the carrying of water to fires. In relation to storage of items, Mr Underwood indicated that on his instructions articles may be stored on site in order to gather together an appropriate size load, which would then be taken elsewhere. The very real limitation with this evidence, of course, is that it is hearsay about what Mr Underwood has been instructed only.
The Transport Impact Statement dated March 2018 (Exhibit 10, attachment RU 3) is a document seemingly created by Planning Solutions apparently in compliance with a condition imposed with the 2015 approval. That contains some information about the operations of R32 Construction and Collie Steel (page 5):
The proposed transport depot … is to be the operations depot for garaging, parking and maintenance of vehicles at the depot, which are involved in transport, emergency services and agriculture. That includes the transfer of goods associated with that use. The transport depot will be used by two related businesses, being R32 Construction and Collie Steel.
The R32 Construction component of the land use comprises the parking and maintenance of vehicles used for oversize and heavy vehicle transport, and support of fire and emergency services. It includes:
•the garaging and maintenance of vehicles, appliances and equipment used for delivery of services in support of Department of Fire and Emergency Services (DFES) and department of Biodiversity, Conservation and Attractions (DBCA), and in relation to emergency fire-fighting operations, also to support DFES and DBCA
•The carrying of goods, which may include other vehicles, bulldozers, loaders tankers excavators and sea containers incidental to the Transport Depot
•the garaging and maintenance of appliances and equipment used for agricultural operations including tractors and equipment for producing hay and trees on farms and plantations
•The supply of transport services and goods to industry across the region
The Collie Steel component of the land use comprises the garaging, parking and maintenance of oversize and heavy vehicles used for collection and distribution of industrial materials like steel items, and to facilitate the transfer of steel items, such as steel beams, pipes, flanges and machinery parts collected from industrial sites and farms. Collie Steel is also involved with at times many of the same operations as R32Construction.
…
There is a real difficulty in categorising the proposed development properly given the very limited amount of information before the Tribunal about what is intended, even following an oral hearing.
At least some of the vehicles intended to be parked and maintained at the site are identified as 'transport vehicles' and can be taken, based on this description, as vehicles which transport things. 'Goods' can have a number of meanings. The Macquarie Dictionary Online defines 'goods' as (original emphasis):
1.possessions, especially movable effects or personal belongings.
2.articles of trade; wares; merchandise, especially that which is transported by land.
…
5.goods and chattels,
a.all movable properties.
b.Colloquial all one's possessions.
Having regard to the fact that local planning schemes are not usually drafted by parliamentary counsel, I think it is appropriate to take the wider, more general meaning of 'moveable properties'. There is nothing in the context of the Scheme as a whole that suggests that the word 'goods' in the definition of 'transport depot' should be understood as only things for sale, which the second meaning provided by the Macquarie Dictionary Online.
I am not satisfied that the definition of 'transport depot' in LPS 5 requires the site to be used for the transfer of goods or people from one vehicle to another in order for the parking of vehicles used or intended to be used for the carrying of goods or people to come within the definition. The definition contains disjunctive parts and is then added to be by additional components after the words 'and includes'. If vehicles which are used or intended to be used for carrying goods or people are to be parked on land, then, unless there is something about the proposal which transforms that particular use into a single use that is something other than a 'transport depot' when looked at as an integrated whole, then that aspect will come within the meaning of 'transport depot' in LPS 5. In some local planning schemes, there is a separate land use category of commercial vehicle parking. In such a scheme, there may be more nuances to determining whether development comes within a transport depot or commercial vehicle parking.
The inclusionary part of the definition of 'transport depot' after the words 'and includes' incorporates 'fire brigades depot', amongst other things. The storage of vehicles that are used for the purposes of creating and maintaining firebreaks do not, at least on face value, and in the absence of evidence to the contrary, seem to be what one would ordinarily understand to be the type of thing ordinarily expected to be kept at a 'fire brigades depot'. To the extent that there are vehicles used for fire-fighting per se, then I am persuaded that, while perhaps not creating a true fire brigades depot, the garaging of these vehicles could ordinarily be understood as something akin to a fire brigades depot and therefore should be taken as within the definition of 'transport depot' in LPS 5.
Some of the vehicles to be parked at the site, while they might be described as 'commercial or heavy haulage vehicle(s)' have not been established as being used, or intended to be used, for the transfer of goods or people. In particular, this relates to what are described as 'agricultural vehicles' in the letters supporting the application and amended application. In addition, the Tribunal does not know whether the 'construction' vehicles are used or intended to be used for the purpose of carrying goods or persons.
The maximum number of vehicle trips suggests a degree of accessing and egressing of the site that might be expected for a site being used as a transport depot. However, there are expected to be an unspecified, much lower, number of vehicle trips per day, which is more consistent with using the site for the purpose of parking commercial and heavy haulage vehicles.
Mr Underwood's statement that the reason for the proposed development is to free up space at other locations by parking the vehicles used by the businesses at the site sits neatly with the description (in the letters describing the application) of the proposed development as being for the parking and maintenance of commercial vehicles.
In some local planning schemes, the term 'transport depot' is defined by reference to the parking of commercial vehicles, and in others, like in LPS 5, the vehicles which can be parked and maintained in connection with the use are vehicles used or intended to be used for carrying goods or people. This latter definition excludes other types of commercial vehicles. In my view, it would erroneous to ignore the aspect of the proposed development that involves the parking of vehicles that are not used or intended to be used for the carrying of goods or people having regard to the definition of 'transport depot' in LPS 5.
As indicated above, Senior Member McNab had different evidence before him in relation to the development the subject of the 2015 approval. However, to the extent that he considered that a 'purposive approach' to the definitions in the Scheme would allow the defined term 'transport depot' in LPS 5 to include the parking and maintenance of vehicles that are not used or intended to be used for the carrying of goods or people, if that was not an incidental part of the development, I consider that would have been an error.
On the evidence before me, I am not satisfied that the parking and maintenance of vehicles that are not used or intended to be used for the carrying of goods and people is incidental to the rest of the proposed development. The two businesses involved operate a number of different types of vehicles for different purposes.
I cannot see how the use or hire of agricultural vehicles is related in any way to the transport depot aspects of the two businesses. The vehicles that are used for the creation and maintenance of firebreaks are also used for a distinct purpose. I am not satisfied that these vehicles are used or intended to be used to carry goods or people. The fact that a person needs to drive them, or that they may have another piece of equipment connected to them, do not make them vehicles of that category. However, these aspects of the proposed development are more limited aspects. I am not persuaded that that they involve premises used primarily for the purposes of parking vehicles. These vehicles come within the land use term 'commercial or heavy haulage vehicle(s)' and I am persuaded that this aspect of the proposed development is more properly understood as ad hoc parking of some commercial vehicles on land otherwise used primarily for a different purpose. I think this distinct and separate part of the proposed development is properly understood as a use not listed in the zoning table of LPS 5, and therefore capable of approval under cl 4.4.2 of LPS 5.
I am not satisfied that the maintenance and repair of these vehicles is of sufficient degree in the context of the proposed development as a whole, so as to constitute a separate use of 'motor vehicle repair' as defined in LPS 5. I think this would be an incidental aspect of the commercial or heavy vehicle parking use.
To the extent that the construction vehicles carry goods or people to a worksite, I think they can, in the context of this Scheme, be accepted as the type of vehicles referenced in the 'transport depot' definition. Other vehicles used in the construction work of R32 Construction to be parked and maintained on site are, I think, an ancillary and incidental aspect of the proposed development in this case.
In the 2015 approval, Senior Member McNab did not have regard to whether the parking and maintenance of vehicles that are not used or intended to be used for the carrying of goods or people might involve the parking of commercial or heavy haulage vehicles rather than a transport depot. This may have been based on the evidence before him to which this Tribunal is not privy. However, it is unlikely that it would have made a difference to the outcome in the 2015 approval, given that this type of use is capable of approval under the Scheme.
The vehicle related aspect of proposed development in this case appears to be a mix of a transport depot and commercial or heavy haulage vehicle parking. The Tribunal is not persuaded that the commercial or heavy haulage vehicle parking is an incidental or ancillary aspect of the proposed development, it is a separate and distinct aspect of it.
The respondent submitted that if the proposed development is capable of being permitted in the Rural 1 zone, then it should be approved subject to conditions. While I struggle to understand how the respondent can be satisfied that the impacts of the proposed development will not have any adverse amenity impact on the locality given the limited description of the proposed development, nonetheless, it is not appropriate in the circumstances for me to take a different view.
The other aspect of the proposed development relates to the storage of articles. I am not satisfied that this storage is the type of temporary storage that might accompany a transport depot use. Part of a transport depot use involves the transfer of goods or people from one vehicle to another. This can, as Senior Member McNab accepted in Churches, involve the temporary storage of goods, which are collected together in order to more efficiently be transferred from one vehicle to another. Mr Underwood says that, on his instructions, there will be a limited amount of transfer of goods from one vehicle to another, and arising from that some temporary storage of goods to be transferred. To the extent that this does occur, then this sort of storage can be accepted as an incidental aspect to the transport depot use. However, this is not how the storage aspect of the proposed development is described in the letters accompanying the application.
I note that the overall description of the proposed development and of the development the subject of the 2015 approval (as provided in the material supporting each development application) is different in a material way. The development the subject of the 2015 approval refers to the parking and maintenance of vehicles and the 'temporary' storage of materials related to their use. The proposed development contemplates the parking and maintenance of vehicles and 'the storage of articles'. There is no mention of the proposed storage being temporary. In addition, the storage involved is described as 'storage of articles used by the businesses including shipping containers, steel beams, pipes, flanges and machinery parts collected from major industrial sites and farms, timber and other articles' (page 4, tab 11 of Exhibit 2).
The proposed development also contemplates the storage of an unlimited number of shipping containers on the site. Mr Underwood suggested that the size of the site necessarily limits the number of containers that may be stored on site, but as the area of the site involved in the proposed development is approximately 12 hectares, this is a somewhat specious remark. Apparently, based on Mr Underwood's evidence, the applicant proposes to buy and sell shipping containers and proposes to store them on site in between. It is submitted that they will be brought to site by a vehicle and taken from site by a vehicle and as such they are another 'good' being transferred from one vehicle to another at the site. In my view, this extends past what is contemplated in the 'transport depot' definition. It can be said that anything that is stored at a place is likely to be brought to and taken from the place by a vehicle at some point in time. The 'transport depot' land use as defined in LPS 5 includes the transfer of goods between motor vehicles. 'Storage' is a separately defined land use. It will be a question of degree as to whether the storage of goods is part of a 'transport depot' use or is a land use in its own right. In this case, the proposed development focuses, in its storage aspect, on storage rather than on the transfer of goods.
The amended site plan (at tab 11 of Exhibit 2) shows large areas of land that will have gravel bands where articles may be stored.
The description of the proposed development is not consistent with storage as an aspect of a transport depot use. It is, as it says, about the storage of articles used by the two businesses. This aspect of the proposed development is a separate land use to the parking of transport vehicles and the commercial or heavy haulage vehicles. It is 'storage' as defined in Pt 2 of Sch 1 of LPS 5. That is an 'X' use and is not permitted in the Rural 1 zone.
Conclusion
The 'transport depot' aspect of the proposed development is a discretionary use and capable of approval under the Scheme. The part of the proposed development that relates to the parking and maintenance of commercial vehicles is a use not listed in the zoning table of LPS 5 and is capable of approval pursuant to cl 4.4.2 of the Scheme. It seems, on the information available to me, that this aspect is a distinct part of the proposed development and therefore I would set aside the decision of the respondent in part and substitute conditional approval of this aspect of the development. The part of the proposed development that relates to 'storage of articles', including the storage of shipping containers and articles used by the businesses, involves a prohibited use and cannot be approved. This aspect of the respondent's decision should be affirmed.
However, the parties have not had an opportunity to be heard in relation to whether or not the proposed development is capable of being approved in part as contemplated by the Tribunal. The matter will be listed for a directions hearing in order to provide an opportunity to hear from the parties in relation to this.
The parties made submissions in relation to the conditions that should attach to any approval of the proposed development. Given that the decision of the Tribunal is to, in so far as it is possible to do so, allow the proposed development in part, the parties may wish to be further heard in relation to the appropriate conditions that should attach to that approval. On the assumption that it will be possible to approve the proposed development in part, the Tribunal makes the following remarks about the proposed conditions.
The Tribunal notes that the applicant, in his closing submissions, indicated that he accepted the respondent's draft without prejudice conditions 1, 2, 3, 4, 7 (in part), 11, 12, 13 and 14. Given the Tribunal's findings in relation to the characterisation of the vehicle parking aspect of the proposed development, there will need to be some minor refinement of some of these conditions.
The part of condition 7 that was objected to was the requirements in 7.2 to screen to the Bibbulmun track, 7.4 to reinstate vegetation removed for the purposes of a crossover and intersection treatment and 7.9 in relation to a bund. The Tribunal agrees that the evidence does not support these aspects of condition 7. It is apparent from aerial photography that the site is already well screened from the Bibbulmun track. The vegetation removed to create the crossover and intersection was removed in order to create those things and prevent unsafe access and egress from the site. There is no sufficient basis to require a large and potentially expensive bund when it is proposed that screening will be provided by way of landscaping.
The applicant also agrees with an amended condition 17 that requires construction of a crossover consistent with the approvals already obtained, and the Tribunal understands that the proposed crossover and intersection treatments have already been approved: Exhibit 10, attachment RU5. The respondent did not indicate any objection to this amendment.
Proposed condition 9 requires a noise management plan to be prepared. The Tribunal does not accept that there can be any need for such a plan when the respondent has not raised any issue concerning any potential negative noise impact. If there is a potential noise issue such that a noise survey is required to establish that the proposed development can meet the Environmental Protection (Noise) Regulations 1997, then this should have been raised in consideration of the merits of the proposed development. This is a matter that, if it is a real issue, goes to whether the proposed development should be approved at all. There is no sufficient evidence before the tribunal to support the imposition of this condition.
It is submitted that conditions 15, 16, 18, 19 and are all requirements imposed by legislation and as such are not necessary as conditions to a planning approval. The Tribunal accepts this submission.
The applicant objects to proposed condition 5 and 6, which require that the proposed development cease within three years of the approval and the removal of the built aspects of the development at that time. The respondent submits that this is necessary having regard to the draft LPS 2018. This has reached an advanced stage in the implementation process and approval of the proposed development in perpetuity would impede the achievement of the strategic planning for the Industry 2 precinct proposed under the draft LPS 2018. The applicant agrees that the draft LPS 2018 is a certain and imminent planning instrument.
As the respondent submits, that the draft LPS 2018 identifies that the site, together with one other lot, is intended to become the Industry 2 precinct. The site makes up approximately half of this precinct. The draft LPS 2018 contemplates structure planning occurring so that appropriate strategic planning will occur rather than ad hoc development. The number of lots intended to be created in the precinct is not yet developed with any precision, as the draft LPS 2018 contemplates 25 200 lots. Transport depot is identified as an appropriate land use within the Industry 2 precinct, however the draft LPS 2018 contemplates this use as requiring in the region of 2 hectares of land.
In light of the contemplated strategic planning for the future industrial area that has not yet been carried out, and in light of the fact that the rezoning process has not yet been commenced, I accept the respondent's submission that at this stage it would be inappropriate to allow the proposed development in perpetuity. It is not appropriate to remove half of a precinct from the strategic planning process before that can occur. The Tribunal is satisfied that a time limited approval is appropriate in the circumstances.
The respondent submits that the approval should be limited to three years. That seems unnecessarily short, given how long the strategic planning and rezoning processes tend to take. The Tribunal is minded to accept an amended condition 5 that contemplates 6 years as the relevant time period. Condition 6 follows and the Tribunal would be minded to impose that condition.
The applicant objects to proposed condition 20 on the basis that it sometimes needs to use some vehicles at times outside of the operating hours proposed. At present the site is located in the rural 1 zone. As such, absent evidence that would support a conclusion that operating transport and/or commercial or heavy haulage vehicles outside of daylight hours would not adversely impact on the amenity of the locality, the Tribunal is not satisfied that it is appropriate to allow such movements outside of the hours suggested by the respondent.
Orders
1.The matter is listed for a directions hearing at 2.30 pm on 4 October 2019 in the State Administrative Tribunal building at 565 Hay Street, Perth.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
24 SEPTEMBER 2019
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