Clark and Shire Of Chittering
[2008] WASAT 30
•11 FEBRUARY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: HEALTH ACT 1911 (WA)
CITATION: CLARK and SHIRE OF CHITTERING [2008] WASAT 30
MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
MR T CAREY (MEMBER)
HEARD: 13 NOVEMBER 2007, FURTHER WRITTEN SUBMISSIONS 21, 23 NOVEMBER 2007
DELIVERED : 11 FEBRUARY 2008
FILE NO/S: CC 803 of 2007
BETWEEN: MILTON JAMES CLARK
Applicant
AND
SHIRE OF CHITTERING
Respondent
Catchwords:
Health Certificate of occupancy Conference centre Effect of earlier planning approval Whether planning approval limited number of occupants Earlier proceedings assumed limitation of numbers as part of planning approval Whether applicant estopped from arguing against assumption Whether planning approval within power.
Legislation:
Health (Public Buildings) Regulations 1992 (WA), reg 9, reg 9A
Health Act 1911 (WA), s 36(1), s 178, s 178(1)
Shire of Chittering Town Planning Scheme No 5, cl 3.3.3, cl 3.5.2, cl 3.6.2, cl 3.7.1, cl 3.7.2, cl 3.8.15, cl 3.8.17.3, cl 3.9.4, cl 3.10.2, cl 3.11.2, cl 3.12.2
State Administrative Tribunal Act 2004 (WA), s 9
Result:
Application allowed
Certificate for 69 people ordered
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: N/A
Solicitors:
Applicant: McLeods
Respondent: Hardy Bowen
Case(s) referred to in decision(s):
Clark and Shire of Chittering [2005] WASAT 175
Clark and Shire of Chittering [2007] WASAT 218
Medical Board of WA v Mustac [2006] WASAT 178
Port of Melbourne Authoritv v Anshun Pty Ltd (1981) 147 CLR 589
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Milton Clark applied to the Shire of Chittering for a certificate of approval for a function centre under the provisions of the Health Act 1911 (WA). The Shire imposed a condition on the certificate limiting the number of persons to be accommodated in the function centre to 20. It did so on the basis that the Health Act certificate should reflect a limitation on the planning consent for the original construction of the conference centre. The Shire contended that the planning consent was limited to use of the function centre only by guests staying at the farm stay facility also operated by Mr Clark on the subject land. Mr Clark sought a review of that decision by the Tribunal.
It was agreed that, but for the alleged limitation on the planning consent, there was no reason why a Health Act certificate should not issue for a maximum of 69 persons, being the number sought by Mr Clark. The Tribunal examined the history of Mr Clark's planning application which involved earlier proceedings in the Tribunal. The Shire argued that the earlier proceedings, which had been determined on an assumption shared by all involved in the proceedings that the original planning approval was limited to farm stay guests using the conference centre, precluded Mr Clark from now arguing a position contrary to that assumption. Having examined the full history of the various dealings between Mr Clark and the Shire, the Tribunal concluded that Mr Clark should not be precluded from arguing that the original approval was not limited in the way asserted by the Shire. The Tribunal agreed with Mr Clark that the original approval did not contain the limitation. It also considered whether approval without the limitation was within the power of the Shire to grant under the terms of the relevant town planning scheme. The Tribunal concluded that the approval was within power.
Having concluded that the planning approval did not limit the number of guests who might be accommodated at the conference centre, the Tribunal allowed the application for review, and directed that there be a certificate issued under s 178(1) of the Health Act 1911 (WA) for a conference centre to accommodate a maximum of 69 persons.
Background
The applicant, Milton James Clark (Mr Clark) applied under s 36(1) of the Health Act 1911 (WA) (the Act) for review of a decision of the respondent, the Shire of Chittering (Chittering Shire) in respect of the "Crooked Wall Function Centre" (function centre) forming part of a development owned and operated by him at Lot 101 Kay Road, Bindoon known as "Windmill Farm". The function centre had been the subject of an earlier decision of the Tribunal - see Clark and Shire of Chittering [2005] WASAT 175.
By his written application, Mr Clark sought an order setting aside the decision of the Chittering Shire "to maintain a maximum accommodation number for the [function centre] of 20 persons pursuant to the certificate of approval under s 178(1) "Health Act 1911" and in substitution an order for the issue of a certificate of approval for the function centre to accommodate a maximum of 69 persons. In Clark and Shire of Chittering [2007] WASAT 218, Member Carey decided, on the determination of a preliminary issue in the present application, that a particular response contained in a letter from the Chittering Shire dated 17 April 2007 did constitute a reviewable decision for the purposes of s 36(1) of the Act. He concluded that it was, in substance, a decision to refuse Mr Clark's application to vary the maximum number of persons that the function centre may be used to accommodate as specified in the certificate of approval issued under s 178(1) of the Act. The matter proceeded before us on the basis that the decision so reformulated was the subject matter of the application.
The documents and witness statements tendered at the hearing reveal the following planning history. At the relevant time the land was zoned "Agricultural Resource" under the Shire of Chittering Town Planning Scheme No 5 (TPS 5) and successive consents by the Chittering Shire have approved or acknowledged the uses of "Farmstay Accommodation" and "Tearooms and Sale of Paintings", under two successive town planning schemes. Planning consent for a "Conference Centre" in respect of the function centre was first granted on 13 November 2003, in consequence of a resolution of the Council of the Chittering Shire on 15 October 2003. We will come to the conditions of the grant of the planning consents. On 6 August 2004, the Chittering Shire issued Mr Clark with a building licence for the function centre which contained the following condition:
"Maximum accommodation permit of 69 to be issued prior to opening and operation of Centre"
In accordance with advice received from the Chittering Shire, subsequent to construction of the function centre, Mr Clark applied for a certificate of occupancy under the Act for 69 persons. That application was unsuccessful, a letter from the Chittering Shire dated 15 September 2004 making reference to the following:
•The centre was approved on the basis that it was for use by guests of the farm stay accommodation;
•A certificate of registration of a lodging house issued in relation to the farm stay accommodation listed a 20 person maximum;
•The maximum number of persons permitted under the planning consent was therefore 20.
Mr Clark then applied to the Chittering Shire for planning consent to extend the use of the function centre to the general public, as opposed to use by Windmill Farm guests only. He has since received legal advice to the effect that this was unnecessary as the planning consent at that time did permit the accommodation limit of 69 persons, and what he should have done was to seek review of the Chittering Shire's refusal to issue a certificate of approval with a maximum accommodation of 69. In any event, it was a letter from the Chittering Shire dated 16 February 2005 attaching a refusal notice that was the subject of Mr Clark's application to the Tribunal which was dismissed on 18 July 2005: Clark and Shire of Chittering [2005] WASAT 175. On or about 6 June 2006, the Chittering Shire issued its certificate of approval with a maximum accommodation of "20 persons".
On about 28 February 2007, Mr Clark's solicitors, McLeod and Co, wrote a letter to the Chittering Shire on Mr Clark's behalf (McLeods letter) stating inter alia:
"Mr Clark is making application to the Shire for a Certificate of Approval under the Health (Public Buildings) Regulations 1992 (WA) for the reception centre, for a maximum accommodation number of 69 persons.
It is understood that a view has been taken within the Shire that our client only has Planning Approval for 20 persons to be accommodated in the Crooked Wall Reception Centre.
It is our client's position that the 13 November 2003 Decision document (which was resolved by Council to be granted on 15 October 2003) contains no restriction on numbers."
When Mr Clark delivered the McLeods letter, he also lodged a planning approval application form which, in response to "description of proposed development and/or use", stated "increase of maximum numbers to 69". Mr Clark says that he submitted this form on the basis of advice he received over the counter when he delivered the McLeods letter, but that he did not appreciate the distinction between planning consent and the certificate of approval.
On 17 April 2007, the Chief Executive Officer of the Chittering Shire responded in letter form (Shire's letter) to the McLeods letter. The Shire's letter rejected Mr Clark's interpretation of the planning approval. It stated:
"Having demonstrated that there is a restriction as to the number of persons pursuant to planning consent, it follows that there is a basis for the Shire to impose a 20‑person limit on a public building certificate of approval. This is notwithstanding that the reception centre has been designed with generous standards, in terms of space and toilet facilities, adequate for 69 persons.
The number of persons permitted by the Public Building Accommodation Certificate therefore remains at 20 – refer attached certificate."
The Shire's letter enclosed a copy of the original certificate of approval.
Relief sought by applicant
Mr Clark seeks an order setting aside the Chittering Shire's refusal of his application to vary the maximum number of persons that the function centre may be used to accommodate as it appeared in the certificate of approval.
He also seeks declarations that:
(a)the function centre is not subject to a legal restriction as to patron numbers by virtue of the decision in Clark and Shire of Chittering [2005] WASAT 175;
(b)the 13 November 2003 planning consent imposes no restriction on the number of patrons permitted in the function centre.
The power to make declarations is exercisable only by a judicial member (s91(2) the State Administrative Tribunal Act 2004 (WA)). If the need arises such an order can therefore by made by the Tribunal as currently constituted.
Issues
Mr Clark proposed the following issues:
"AWhat relief is sought by the Applicant? Should the matter be referred to a judicial member, having regard to the relief sought?
BIs Member Carey's observation that the argument referred to at [2007] WASAT 218 para 19 has no prospect of success, binding in the sense that it creates an issue estoppel and cannot be revisited by the Tribunal; or is it merely interlocutory creating no issue estoppel and capable of being revisited on proper cause being shown?
CIf the argument is capable of being revisited, then is the Conference Centre subject to a legal restriction on patron numbers by virtue of the decision [2005] WASAT 175?
DIf the Conference Centre is not subject to such a restriction under [2005] WASAT 175, then is it subject to such a restriction under the 13/11/03 Planning Consent?
EIf the Conference Centre is not subject to such a restriction under the 13/11/03 Planning Consent, then are there any considerations beyond those referred to in the Health (Public Building) Regulations 1992 which are relevant to the maximum accommodation number applicants under a Health Act Certificate of Approval?
The Chittering Shire agreed with these issues, although it regarded issue C (we assume wrongly referred to as 'E') as being more aptly formulated as:
"The Respondent states that Issue E [sic C] is more aptly formulated as whether an issue estoppel operates by virtue of the Tribunal's reasons for decision in Clark and Shire of Chittering [2005] WASAT 175 so as to preclude the Applicant from revisiting the issue of patron numbers for the Conference Centre."
Adopting the lettering of Mr Clark's proposed issues, issue A has been dealt with by the constitution of the Tribunal as just alluded to, whilst issue B is determined by our observation that Mr Carey's comment as to prospects of success was not binding as it did not form the basis of any order.
We turn to issue E. The parties indicated at the hearing that in the event that the Tribunal determined that there was no legal restriction on patron numbers under the planning consent and/or the earlier decision, they agreed that the correct maximum accommodation for the purposes of the certificate of approval was 69. We believe that this disposes of the need to further consider issue E.
This leaves issues C and D. For convenience, we will deal with them together.
Is the function centre subject to a legal restriction on patron numbers by virtue of the decision in Clark and Shire of Chittering [2005] WASAT 175 (by way of issue estoppel), or by the virtue of the planning consent on 13 November 2003 or a combination of both?
An immediate question which arises is whether or not this Tribunal is able to consider and rule on the import of the planning consent granted on 13 November 2003 in light of the Tribunal's decision in Clark and Shire of Chittering [2005] WASAT 175 (the Clark decision). Further, is this Tribunal able, as Mr Clark urges upon it, to rule that its earlier decision is invalid, or otherwise disregard it?
A copy of the application document which initiated the proceeding culminating in the Clark decision was Annexure MJC8 to Mr Clark's affidavit sworn 10 September 2007. It recited that it was "an application under s 8A(1) of the Town Planning and Development Act 1928 (WA): Refusal of application under town planning scheme" and that the decision sought to be reviewed was made by the Chittering Shire Council on 9 February 2005. The "decision sought" was expressed to be:
"That Council comply with the Officer's recommendation in the agenda item 6.2.4 for the Council Meeting of 9th February 2005. 'That Council grant planning approval for a reception centre at Lot 101 Kay Road, Bindoon with no limitations [sic] on the use of the reception centre to farmstay guests only.'"
In Mr Clark's "grounds for appeal" reference was made to the statement in the letter from the Chittering Shire dated 15 September (2004) that the function centre was approved on the basis it was for use by guests of the farm stay accommodation only, and that "an application to open to the general public" (obviously a reference to the application for planning consent which followed the 15 September 2004 letter) was rejected. The grounds for appeal referred to a number of planning reasons for which the application has been rejected, and in each case provided a short statement as to Mr Clark's answer to the Council's assertions. The issue for decision by the Tribunal was identified by it at [18] in the Clark decision. The Tribunal said "the issue for decision by the Tribunal, based upon the characterisations, decisions and approach by both parties to date, concerns the exercise of a discretion, whether upon conditions or not, to extend the potential use of the conference centre to cater for some 69 persons; ie, its actual physical capacity".
Mr Clark's argument comes down to his assertion that he was not prevented by the planning consent of 13 November 2003 from accommodating 69 persons, with the consequences that his application was redundant and that the Clark decision ought not, by any of a number of devices, be given the effect of limiting the use permitted under the 13 November 2003 approval.
In order to assess Mr Clark's contention, it is necessary to review the background to the application which led to the Clark decision. Mr Clark's evidence as to what occurred was not in dispute. He said that, when he received the Shire's letter of 15 September 2004 refusing his certificate of occupancy for 69 persons, he was shocked. He said that he was "certain that the 13 November 2003 approval had not imposed any restriction on the number of patrons for the conference centre." That belief appears to have been induced by the events surrounding the Council's resolution of 13 November 2003. The application for consent had been the subject of a report by a Council officer. That report contained a recommendation that consent be given subject to a number of conditions, including condition 2 which read:
"Use of conference centre to be limited to guests of the farm stay or visitors arriving by coach bus".
The recommendation also contained advice notes below the conditions, including advice note 1 which read:
"Condition (2) has been included as guests are brought to the site via coach bus, which therefore does not create significant additional traffic to the locality. Should the landowner wish to allow use of the conference centre for other parties then a further application may be presented to Council detailing on-site car parking provisions for the determination of Council."
Prior to the Council meeting, Mr Clark saw a copy of the officer's report. He objected to the proposed condition, and handed a letter to the CEO of the Shire on 14 October 2003. That letter made reference to the proposed condition 2, and said:
"As you would be aware this would severely impact on the uses and the viability of the project and hence I am requesting this condition be deleted. Should the question of parking be an issue, please be assured that parking of in excess of 20 to 30 cars would not be a problem."
Mr Clark said that the CEO of the Shire told him that the letter had been distributed to all Councillors prior to the Council meeting on 15 October 2003, and that evidence is not challenged. The minutes of the meeting of Council of 15 October 2003 record that approval was granted subject to the conditions recommended in the officer's report, save that condition 2, and advice note 1, were deleted and a further advice note was added which read "Council does not have plans to upgrade Kay Road to a sealed standard".
The Shire's letter dated 13 November 2003 advised that "approval to commence development has been granted subject to the conditions specified on the attached Schedule of Approval". The schedule attached to the letter confirmed the grant of the consent as described on Mr Clark's application subject to four conditions, none of which imposed any limitation in terms of patronage number or class.
It is not surprising therefore that Mr Clark was shocked by advice in the 15 September 2004 letter that a certificate of occupancy would not be issued for 69 persons on the basis that use of the function centre was limited to guests of Windmill Farm.
Mr Clark did not seek legal advice at that time. The letter of 15 September 2004 invited Mr Clark to contact a Carol Catherwood, a senior planning officer at the Shire, if he required any further information. Mr Clark took up that offer. He asked her what to do. She told him that he needed to apply to extend the numbers, and provided him with a planning consent application form, part of which Mr Clark believes Ms Catherwood may have completed for him in his presence. The application for planning consent to increase the numbers to 69 persons was then lodged with the Council. It is clear that Mr Clark took that step, not because he originally considered that his planning approval was limited, but rather because he was simply accepting what he was being told by Shire officers.
Following the refusal of the Council to grant planning consent for 69 persons, Mr Clark initiated his application to the Tribunal in relation to that refusal. He was not represented when he made the application, or at any time during the course of the hearing. Not surprisingly, given his lack of expertise in relation to planning regulation, he did not pursue an argument before Member McNab that the planning approval, which he had been told he needed, was not in fact required. It is apparent that the proceedings before Mr McNab proceeded on the basis that planning consent was required, and involved an assessment of the merits as at the date of determination by Mr McNab of an application for a function centre open to the public for up to 69 persons. In the Clark decision, Mr McNab referred to "the inherent uncertainty or ambiguity in the approvals themselves" (at [29]) and accepted that the issue for determination for him was "based upon the characterisations, decisions and approach of both parties to date" (at [18]). He accepted that the application by Mr Clark before him was "in effect, an attempt to regularise the position in response to" the Shire's letter of 15 September 2004.
Once a party has presented a case on a particular basis, that basis is not subject to challenge, the case is argued on the basis advanced and a decision made which incorporates as part of the reasoning the agreed basis, a court or tribunal will be slow to allow the same party to later present another case on a different and contradictory basis. This is commonly called "Anshun estoppel", the reference being to Port of Melbourne Authoritv v Anshun Pty Ltd (1981) 147 CLR 589. As Barker J said in Medical Board of WA v Mustac [2006] WASAT 178 at [82] (although this decision was overturned on appeal no criticism of his Honour's comment which follows was made by the Court of Appeal):
"As to the Anshun principle, this is really is an illustration of the power of a court, in its statutory or inherent jurisdiction, to prevent its processes from being abused. As far as possible, litigation should be final. If a party to earlier litigation should have raised a particular issue amongst 'others at the time of earlier litigation, the party may, in the interests of justice - to avoid an abuse of process of the court - be prevented from raising it later: see Port of Melbourne Authoritv v Anshun Pty Ltd (1981) 147 CLR 589. The Anshun principle applies to both causes of action and to issues. It further extends to claims and assumptions fundamental to the judgment: Rippon Pty Ltd v Chilcotin (200l) 53 NSWLR 198 at 203."
The Anshun principle applies in this case by reason of the extension referred to in the final sentence of the above passage. The assumption underlying Mr Clark's application for review culminating in the Clark decision was that the planning consent was limited to use of the centre by guests of the farm stay accommodation. Mr Clark now wishes to argue that no such limit applies.
It has also been recognised that there may be special circumstances in which the operation of the Anshun principle will be excluded. Such special circumstances were identified by Madgwick J in Stewart v Sanderson (2000) 175 ALR 681 at [321] as arising:
(a)Where the circumstances in which the unreasonable conduct of a party occurred may account for and excuse that conduct;
(b)Where application of the rule would work such a degree of hardship or injustice as to justify its displacement.
As noted above, Mr Clark acted at material times without legal advice, exhibited an unfamiliarity with the various procedures and lack of appreciation of the distinctions between the requirements for planning consent and a certificate of approval, and relied upon the advice he received from the Shire. He acted on its advice of the planning consent for the function centre, which on its face imposed no limitation on patronage numbers, by constructing a centre which allowed the maximum accommodation of 69 permissible under the building licence. After receiving the 15 September 2004 letter, he also acted on the Shire's advice so as to "regularise the position", when the advice did not include agitating the issue of the scope of the original planning approval. We have decided that given all these circumstances, to deny Mr Clark in this proceeding the opportunity of making good the assertion he now makes on that issue would work such a hardship and such injustice that this is a proper matter where the principle ought be displaced.
How then is the Clark decision to be regarded? By reason of our ruling on the Anshun point, Mr Clark is entitled to argue before us that the original planning consent is not constrained in the manner which was assumed to be the case in the proceedings before Member McNab.
The Clark decision was concerned with a particular decision of the Shire of 9 February 2005 which was the subject of review. Orders were made which concluded that review. If Mr Clark's submission as to the effect of the 13 November 2003 approval is correct, neither the Shire's February 2005 decision nor the decision on review have any practical effect. That does not mean that the Clark decision is "invalid". Rather, the assumption upon which both the Shire's decision and the Clark decision were made does not, in light of our ruling on the Anshun point, now prevent the Tribunal from considering and making findings about all the evidence and submissions going to the issue of the correct construction and scope of the original planning consent.
Subject to one matter, which we will call "the planning issue" and with which we shall deal shortly, Mr Clark's submission that the terms of the planning consent place no condition limiting the patron numbers at the function centre and no condition requiring that only guests of the farm stay may use the function centre is accepted. The evidence which has led us to this finding has already been referred to and we summarise here. The application documentation sought approval for a conference centre with a reduced setback, and the Shire's letter advising of the approval made no reference to limiting the number of people who may use the function centre. The Shire's officer had recommended a condition which would have limited the use to guests of the farm stay or visitors arriving via coach bus, but this condition was not imposed after the applicant made a submission for its deletion on the basis that it would severely impact on the viability of the project. It would appear that the reference in the proposed condition to visitors arriving by coach bus was to visitors who attended the farm stay for day or part‑day excursions but who did not stay overnight, and therefore covered the field of visitors to the farm stay.
An issue which was not the subject of submission by either party before or at the original hearing, but on which the Tribunal sought responses from the parties at a resumed hearing, concerned an assertion in the planning officer's report to the Shire's Council leading to the Council's decision to grant the approval. The assertion was in the following terms:
"The land has a 'Special Use' attributed to it under Town Planning Scheme No 5. That use is described as: 'Tea Rooms, Sale of Paintings, Farm Stay Accommodation'... As the 'Conference Centre' is proposed for persons using the Farm Stay Accommodation, it can be said to be within the parameters of the 'Special Use' and therefore can be approved. Visitors to the property currently arrive via coach bus."
The response sought by the Tribunal was whether or not, in light of this assertion, it was open to the Shire under TPS 5 to grant approval for a "conference centre" if it were not limited to use by persons using farm stay accommodation. This is the planning issue to which we referred above. It appeared to us that even if Mr Clark succeeded on his arguments on the apparent meaning of the terms of the planning consent, the Tribunal should avoid a construction of the consent that would not have been possible under the applicable scheme and would have been beyond the powers of the Shire to grant.
The subject land lies within the "Rural 3 Zone – Chittering Valley". The zoning table for that zone sets out a number of potential uses which are permitted. One of those is "Special Use". The subject site is identified in Schedule 2 of TPS 5 as having ascribed to it a special use of "Tea Rooms ‑ Sale of Paintings ‑ Farm Stay Accommodation". Clause 3.7.2 of TPS 5 introduces the zoning table in the following way:
"3.7.2Within the zone no use will be permitted other than those listed in Table 3 hereunder and permitted uses will be subject to the conditions set out opposite the use."
The conditions set out opposite "Special Use" in the relevant zoning table read "restricted to the use, and to the conditions approved by Council, listed in Schedule 2."
It is common ground that a "conference centre" is not a use identified in the relevant zoning table, nor does it come within the description of the "Special Use" identified of the subject site. The issue is, therefore, whether it was open to Council to approve the use of a conference centre not incidental to the permitted special use of farm stay accommodation or tea rooms.
Clause 3.3.3 of TPS 5 relevantly provides:
"3.3.3If a person proposes to carry out on land any use that is not specifically mentioned in the zoning table and cannot reasonable be determined as falling within the type, class or genus of activity of any other use category the local government may:
"(a)determine that the use is consistent with the objectives and purpose of the particular zone and is therefore permitted;
…"
Clause 3.7.1 identifies the objectives and policies for the Rural 3
Zone ‑ Chittering Valley. The objectives of the zone are described as:
"Council's objective is to support continued use of land within the zone for rural production and horticulture in particular, and to protect the area as a valuable water resource, whilst recognising the importance of the Chittering Valley, because of its specific landscape value, for tourism and recreational activity."
A use as conference centre is consistent with the recognition of the importance of tourism and recreation within the zone. If cl 3.3.3 is capable of applying to the zone, then, in our view, it would have been open to the Tribunal to grant approval for the conference centre other than as merely incidental to the farm stay use.
The respondent contends that cl 3.3.3 should have no application to the uses permitted within the Rural 3 Zone – Chittering Valley. That submission is based on the proposition that the words of cl 3.7.2 should take precedence over and displace the operation of cl 3.3.3. We do not accept that submission.
The words used to introduce the zoning table in relation to the Rural 3 Zone – Chittering Valley are the same words as are used in relation to the introduction of zoning tables for other zones – see cl 3.5.2 in relation to the Rural 1 Zone – Landscape Protection, cl 3.6.2 in relation to the Rural 2 Zone – General Farming, cl 3.8.17.3 in relation to Rural Living B – Small Rural Holdings, cl 3.9.4 in relation to special residential zones, cl 3.10.2 in relation to commercial zone, cl 3.11.2 in relation to industrial zone, cl 3.12.2 in relation to light industrial zone. If the respondent's position were to be adopted, then cl 3.3.3 would have no application to any of those zones. The respondent argued that cl 3.3.3 would still have efficacy in relation to the special rural zone which, in cl 3.8.15 specifically permits Council to consider additional uses to those in specified zoning tables relating to special rural zones. However, cl 3.8.15 is itself a power to permit unlisted uses, a power which could be exercised wholly independently of the power under cl 3.3.3. In our view, the introductory words to the various zoning tables referred to above do not have the effect of excluding the operation of cl 3.3.3. To conclude otherwise would be to effectively rob cl 3.3.3 of its efficacy.
In light of that conclusion, it follows that it was open to the respondent to grant approval of a conference centre not limited to use by residents of the farm stay accommodation. That was the approval given by the Shire.
Conclusion
Mr Clark's application should be allowed, and a certificate of approval under s 178(1) of the Act providing for a maximum number of 69 persons to be accommodated should be issued. It is unnecessary to make any formal declarations as sought by the applicant.
Orders
1.The application is allowed and the refusal decision is set aside.
2.The decision of the respondent notified by letter to the applicant dated 17 April 2007 is set aside.
3.The respondent shall issue a certificate of approval under s 178(1) Health Act 1911 providing for a maximum accommodation of 69 persons.
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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