CLARK and SHIRE OF CHITTERING
[2005] WASAT 175
•18 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: CLARK and SHIRE OF CHITTERING [2005] WASAT 175
MEMBER: MR P McNAB (MEMBER)
HEARD: 20 APRIL 2005
DELIVERED : 18 JULY 2005
FILE NO/S: RD 355 of 2005
BETWEEN: MILTON JAMES CLARK
Applicant
AND
SHIRE OF CHITTERING
Respondent
Catchwords:
Town planning - Development approval for extension of use Conference centre in rural area Existing farm stay and tourist operation Significant existing overdevelopment on access leg of battle axe lot Ambiguity in previous decisions of local government authority Proper approach where gross overdevelopment and further overintensification of site likely Tribunal critical of past decisions of local government authority Lack of detailed plans and specifications by applicant Application dismissed
Legislation:
Town Planning and Development Act 1928 (WA)
Shire of Chittering Town Planning Scheme No 5
Shire of Chittering Town Planning Scheme No 6
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr M Hipkins
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Parramatta Seventh Day Adventist Church v Parramatta City Council (1985) 58 LGRA 83
Self and Shire of Serpentine‑Jarrahdale [2005] WASAT 140
Signorelli Investments Pty Ltd v Sutherland Shire Council (2001) 114 LGERA 27
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction: the subject land
Mr Clark ("the applicant") owns and operates "Windmill Farm". The street address of Windmill Farm is lot 101, Kay Road, Bindoon in the Shire of Chittering ("the subject land" or "Windmill Farm"). The Shire of Chittering is the respondent local government authority ("the respondent").
The applicant operates a successful tourist business on the subject land, an operation which includes the provision of short term farm-stay accommodation, farm visits by tourist coaches (with the supply of associated meals) and a proposed convention/reception centre and associated buildings (such as chalets and a linked patio/barbeque area).
Windmill Farm is on Kay Road, which is a cul‑de‑sac that runs off the Great Northern Highway and is sealed up to the applicant's driveway. The subject land is a "battle‑axe" lot and all of the existing and relevant development at Windmill Farm (it appears, for certain historical, landscape and topographical reasons) has taken place on the northern half of the quite narrow 20 metres access strip to the lot. The lot itself is approximately 40 acres. It appears that the access strip was intended to be a road reserve; actual road access, however, is limited to about 5.0 metres in width and is unsealed.
The access leg area we are concerned with is less than 1 acre in size (that is, about 2 per cent of the subject land). Buildings concentrated in that area currently include the conference/reception centre (nearing completion), a parking turning area, a windmill, two chalets, a house and a barbeque area. To the west there is an orchard running west from the fence line at the access leg, and a larger neighbouring rural property to the east.
The subject land was formerly regulated by a town planning scheme ("TPS 5" and is currently regulated by the Shire of Chittering Town Planning Scheme No 6 ("TPS 6"), which was finally approved on 30 November 2004 and gazetted on 10 December 2004. These schemes will be referred to in more detail below.
The applicant appealed to this Tribunal on 28 February 2005 against a decision of the respondent taken on 9 February 2005 not to extend the use of his conference/reception centre to the general public (as opposed to use by Windmill Farm guests only).
The history of planning applications
The matter of Windmill Farm and its operations have relevantly come before the respondent on three main occasions.
First, on 15 October 2003 "planning consent for a 'Conference Centre' with reduced setbacks [3.0 metres]" was granted on certain conditions not material to this review. This application was assessed under the former scheme, TPS 5. The application was accompanied by a fairly rough, hand drawn sketch map showing the buildings present and proposed on the narrow access strip. (No map has been produced to the Tribunal showing accurately the developments on the land, although a colour aerial photograph illustrates buildings on the strip and adjoining properties to some degree.)
Secondly, on 14 July 2004 the respondent granted a further "planning consent for a reduced setback of 2.3 metres to the western boundary of lot 101, Kay Road, Bindoon for the purposes of a Conference Centre", again on certain conditions not material to this review. This application was also assessed under TPS 5. In respect of both approvals, the reduced set backs were occasioned by the nature of the subject land (ie, development on the narrow access strip) mentioned above.
In September 2004 the applicant applied for an "extension of the use of the existing conference centre to the general public (as opposed to use by Windmill Farm guests only)". On 9 February 2005 the respondent declined to give its consent. The application was assessed under TPS 6 (see below). Thus, no additional buildings or physical improvements were contemplated, only an extension/intensification of the subject land's already approved uses.
The approval for a conference centre must be read in the context of a number of assumptions or understandings between the parties which are acknowledged, for the purposes of this review, as largely common ground between the parties. They are in part reflected in the following extract from the respondent's town planners in their advice to the respondent at its meeting on 9 February 2005. They are based upon correspondence (eg, a letter to the respondent from the applicant in 2003 referring, somewhat ambiguously, to "proposed persons to be accommodated will be a maximum of 20"; that parking would be available "for in excess of 20 vehicles","[but] 99 per cent of visitors will be arriving in coaches") or other instruments (eg, a 2003 certificate of registration as a lodging house limiting accommodation to a maximum of 20 persons) arising out of the operation of his business.
This extract also sets out the relevant planning framework as seen by the respondent, principally by reference to TPS 6, but also encompassing TPS 5. It is to be emphasised that the applicant does not take significant issue with either the characterisations or other matters that appear in this extract of his various applications to the respondent, or the summary of the three decisions made by the respondent over 2003‑2005 referred to above:
"The [subject] land is zoned 'agricultural resource' under the provisions of Town Planning Scheme No 6 and has an additional use right (under Schedule 3 – Additional Uses – this was requested by the [previous] landowner of the time as Amendment No 18 to Town Planning Scheme No 5, gazetted 29/6/93) to be used for Tearooms and Sale of Paintings. Under the previous TPS No 5, the special use also included farmstay accommodation; this aspect of the development now has a non‑conforming use right under TPS No 6.
The use of a Tearoom is not defined specifically in either the current or previous Scheme. However, a similar view can be taken to the definitions applied by the Health Act [sic]. The difference between a tearoom and restaurant or a function/conference/reception centre is essentially the menu provided, which in turn affects the standard of kitchen the Health Department requires.
Discussions with [the respondent's] Health and Building Officer indicate that the approved building has a Class 1 kitchen, which is in excess of what would apply to a Tearoom, which might just offer tea and sandwiches. This kitchen has been designed to fully prepare meals (ie: a restaurant standard kitchen).
It is worthy [sic] noting that Tearooms could be operated from this site, which would also incur traffic from the general public, in addition to any traffic created by the existing farmstay.
What this application is requesting, that is, to extend further the use of the approved Conference Centre to the general public, does not create a greatly dissimilar situation (in terms of vehicles, possible noise, numbers of patrons, etc) than what is already permitted by the 'additional use' of Tearooms. On this basis, Council could use its discretion to approve the conference centre under the new scheme as a 'Reception Centre'.
Reception Centre means premises used for functions on formal or ceremonial occasions, but not for un-hosted general entertainment purposes.
This is an 'A' use under the provisions of [TPS 6], which means that the use is not permitted unless the [respondent] has exercised its discretion by granting Planning Approval after giving special notice in accordance with clause 9.4. The special notice required involves site notice, letters to neighbours and an advertisement in the paper, all of which has occurred.
A Reception Centre does not restrict the use to simply farmstay guests, however, it does require that functions are hosted. The proposed number of persons the applicant wishes to accommodate in the conference centre is the maximum number that the size of building can accommodate (69 persons).
The previous number of persons applied for was 20, which was the maximum number of farmstay guests the property accommodates.
Given that Tearooms could operate from this same building, and the nature of the difference between the two uses being the types of menu offered [we] recommend this application be approved, subject to conditions."
It appears from this extract that the respondent's officers have tried the best that they could to integrate a series of past "approvals" (some sought by a previous owner) in order to accommodate the applicant's proposed "extension" of use for the subject land.
Further background
Four additional points by way of background may conveniently be made at this juncture. The first is that in 2003 the respondent did not, despite advice from its officers, impose any conditions limiting the use of the conference centre to, say, farm‑stay guests or visitors arriving by coach. Indeed, traffic matters generally were left and remain wholly unregulated. This is a matter that will be returned to below.
Secondly, the latest application to the respondent (and the decision under review) was, in effect, an attempt to regularise the position in response to the respondent's negative response contained in a letter to the applicant of September 2004, after the applicant sought from the respondent's health department, a certificate of occupancy for more than 20 persons.
Thirdly, the original figure of 20 visitors possibly appears to have been derived from the maximum number of persons that could be lawfully accommodated overnight. However, the maximum number of persons who could be so lawfully accommodated is 24 persons, according to both parties. It is unnecessary to resolve this matter in these proceedings. Fourthly, the reference to a maximum of "69 persons" arises out of a regulatory building condition imposed by the respondent in 2004, based upon the capacities of the centre.
Reasons for rejection by the respondent
The reasons offered by the respondent for rejecting the applicant's proposal may be summarised as follows: A negative impact on amenity generally; conflicting use with adjacent rural properties; over‑development of an access way; noise impact; a lack of sufficient buffers and screening; and light spill affecting neighbours.
Issue for the Tribunal
Against this rather tangled planning history and the background thereto, the issue for decision by this Tribunal, based upon the characterisations, decisions and approach of 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.
Applicant's evidence
In his written statement, the applicant told the Tribunal, in support of his application, that additional parking "above the 20 already approved" would be catered for on the property; that, in his view, Kay Road was a "minor … No Through Road" which services only one other resident east of the applicant's property boundary; that "up to 300 people a day" have visited the property for the past eight to ten years without any adverse impact on the amenity of the area, and that "up to 180 people at a time" already utilise the existing facilities; that the amenity of the area is already affected by "a partly abandoned citrus orchard and a scrap yard"; that the unsuitable topography of the site has meant that development has been confined to the access strip; that the conference centre would not produce any additional noise or light of substance and that the nearest neighbour is 120 metres away from his buildings.
The applicant was at pains to point out that he was operating his business in accordance with the various approvals given to him by the respondent.
In cross-examination, the applicant corrected his figure of 300 persons to "we once had up to nearly 300 people for 1 day, for lunch" at a rate of "90 per hour, for 3 hours" which represented three or four coach loads of visitors. "Once in [the] last 3 years" he had 120 people spread over various sittings. The applicant stressed that he was now "too old" to take on such loads, and that on some days very few visitors would come to the subject land. As for car parking, the applicant pointed out various parts of his land (including "the horse yard") where vehicles could park. He agreed that coaches have to "reverse out", implying a lack of a turning area. As for the number of visitors, he agreed that there were visits on two or three days per week on average over a year.
The applicant has not produced any evidence indicating the likely impact on the site (and existing operations), of the extended conference centre operation. However, in his final address he indicated that conferences would probably displace existing farm stay work, as he and his wife basically ran Windmill Farm together and the work was becoming "wearying".
Objectors' evidence
By reason of the conclusions reached by the Tribunal set out below, it is only necessary to make passing reference to the objectors' evidence to the Tribunal. The Tribunal intends no disrespect to the objectors by this course, particularly those who took the time to attend the Tribunal and make comprehensive, well‑documented submissions on the impact on the amenity of the current and proposed use.
Suffice it to say, there was both direct and consistent hearsay evidence of residents' and neighbours' concerns about over‑development of the small area access involved; noise; the lack of a buffer zone; and the possibility of light spill. It is unnecessary in these proceedings to make specific findings on these matters. It is, however, unsurprising evidence given the concentration of activities on the access leg.
Discussion of the case and findings
Mr Hipkins' essential argument (expressed also as his professional opinion as a planner of some not inconsiderable experience) was that the proposed use related to an over‑developed narrow strip of land, which was generally out of character with the rural environment. No expert evidence was called in rebuttal. In his view, the conference centre should continue to be limited to 20 persons in order to see how things turned out.
If Mr Hipkin's assertion of opinion is accepted by the Tribunal, then on much of the unchallenged evidence – if not the applicant's own case and his admissions in evidence – the application must be headed for failure.
In the Tribunals' view there can be no real doubt, based on the uncontradicted evidence as to the extremely concentrated pattern of buildings and activities on the northern part of the access leg (both in its own right, and also as a proportion of the whole of the subject land and in relation to the surrounding area), and the applicant's own evidence as to the operations carried thereon (eg, arrangements, such as they are, as to parking and coaches), that the relevant part of the subject land:
(i)is already grossly overdeveloped, which situation would be exacerbated by an 'over intensification of use' (see, eg, the use of that term in Parramatta Seventh Day Adventist Church v Parramatta City Council (1985) 58 LGRA 83 at 87);
(ii)has developed inconsistently with settled ideas of rural amenity (cf Self and Shire of Serpentine‑Jarrahdale [2005] WASAT 140 at [57]ff); and
(iii)is generally out of step with any notion of orderly and proper planning and preservation of amenity.
The correct and preferable decision "is, therefore, [that it is] not appropriate to approve further development on the site which does not address the consequences of the overdevelopment and, in the [Tribunal's] opinion, will lead to further exacerbation of the problems that are already being experienced.": Signorelli Investments Pty Ltd v Sutherland Shire Council (2001) 114 LGERA 27 at 33-34. The problems already being experienced here include the inevitable consequences of the present over-development on the northern half of the access leg. Necessarily, there has been an adverse impact on the amenity of the area.
It would be proper for the Tribunal to observe that the decision‑making over the years in relation to the subject land reflects a process where "development decisions are ad hoc and [made] without any conscientious analysis of the needs of the area nor any examination of how the use fits into the pattern of … growth". (Stein, L "Introduction: Proceedings of the Conference on Town Planning" (1985) 16 University of Western Australia Law Review 224 at 227). To this list may be added the inherent uncertainty or ambiguity in the approvals themselves.
Such a state of affairs is to be deprecated.
It needs to be stressed that however this situation has come about, it is not the applicant's fault, for the regulatory responsibility lies at the feet of the respondent who has, up until now, in the Tribunal's respectful view, not discharged that obligation with sufficient attention to the consequences of its approvals. Unfortunately for the applicant, these matters do not justify a departure from the application of proper planning principles in this case.
In any case, even if the Tribunal were minded to approve of the applicant's proposal there is, at present, no proper evidential basis upon which this could be done. For example, there are no proper site plans available and no statistics or projections (such as those showing accurate visitor/guest/conference numbers in relation to seasons and times of the day). There is no sense at all that there is a plan or records of the operations of the site in existence that shows precisely who is coming; how and when they will arrive; what activities they will engage in and when and where on the site these activities will take place; and the arrangements for their transport and parking.
Nor, importantly, has any evidence been provided as regards possible alternatives to alleviate existing development pressure on the access leg.
It is true that the applicant has provided some details (eg, a rough sketch plan of the site and generalised estimates of visitors and their activities) and assurances as to matters such as parking, but these are generally insufficient for a proper regulatory decision by either a local government or this Tribunal.
The application for review must be dismissed.
Order
1.The application for review is dismissed.
2.The decision under review is affirmed.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER
2
2
3