Clay and City Of Nedlands
[2012] WASAT 193
•26 APRIL 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CLAY and CITY OF NEDLANDS [2012] WASAT 193
MEMBER: MR P McNAB (SENIOR MEMBER)
HEARD: 24 APRIL 2012
DELIVERED : 26 APRIL 2012
PUBLISHED : 21 SEPTEMBER 2012
FILE NO/S: DR 496 of 2011
BETWEEN: MARK GREGORY CLAY
Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Local government Town planning Enforcement and notices Direction notice to cease use of residential dwelling for short stay accommodation Advertised as 'Serviced Guest Suites' Whether use 'short stay accommodation' 'Short stay accommodation' not classified in local planning scheme Use not authorised by local government Lifestyle choices and personal circumstances of applicant Whether use of premises for short stay accommodation is an 'incidental use' Separate use established Classified as a use not listed Direction notice affirmed Whether decision of Tribunal ought to be delayed in its date of effect Review dismissed but effect of decision postponed for seven days Words and phrases: 'short stay accommodation'
Legislation:
City of Nedlands Town Planning Scheme No 2, cl 3.6, Pt 6
Planning and Development Act 2005 (WA), s 214(2)
Residential Design Codes of Western Australia
State Administrative Tribunal Act 2004 (WA), s 82(1), s 82(2), s 106
Result:
Application for review dismissed
Direction notice affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr DW McLeod
Solicitors:
Applicant: Self-represented
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Carmel Saliba and Town of Bassendean (DR 157 of 2011)
Food Barn Pty Ltd v Solicitor General (1975) 32 LGRA 157
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
MacKenzie v Warringah Council [2002] NSWLEC 246; (2003) 124 LGERA 208
Re Carey; Ex parte Exclude Holdings and Ors [2006] WASCA 219; (2006) 32 WAR 501
West Coast Enterprises Pty Ltd and Shire of Exmouth [2007] WASAT 316
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Mark Gregory Clay, the applicant, received a direction notice from the City of Nedlands, the respondent, to immediately cease the unauthorised use of his residential land in respect of the alleged provision by him of short stay accommodation. Mr Clay sought review of the direction in the Tribunal, arguing that the classification of the use as 'short stay accommodation' was incorrect, and that the use of his dwelling by paying guests was, in the circumstances, an acceptable and ordinary domestic use of a residential dwelling.
Considered in the light of orthodox planning principles, the Tribunal determined that the use of the premises by Mr Clay as short stay accommodation was a separate use of the land and one that was not permitted by the respondent without special approval. The Tribunal found, therefore, that the direction ought to be affirmed.
In pronouncing its orders in the matter, the Tribunal also considered that, in the circumstances of the case, it was appropriate to delay the date of the effect of its decision by a week.
The Tribunal gave its reasons for decision shortly after the conclusion of the hearing. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
Introduction
This application is brought by Mr Mark Gregory Clay (applicant or Mr Clay), the owner of residential land described as No 2 (Lot 173) Hynes Road, Dalkeith, in the City of Nedlands (respondent or City). On or about 20 December 2011, Mr Clay was served with a written direction issued by or on behalf of the City. The direction required him to immediately cease the use of this land in respect of the allegedly unauthorised activity of offering 'short stay accommodation'. The direction, on its face, invokes the authority of s 214(2) of the Planning and Development Act 2005 (WA).
Mr Clay applied for a review of the direction in this Tribunal on 23 December 2011. Mediation between the parties did not resolve the issue, and the record before the Tribunal shows that the City has been anxious to consider a development application from Mr Clay to regularise, as they saw it, the situation.
The City alleged that the use of the land for such short stay accommodation requires planning approval. The classification of the land use by the City in these terms, if correct, means that the use is one that is not, at present, expressly classified under Table 1, the 'Use Class Table' of the City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme). Thus, the City argues, the use is a use not listed and is therefore regulated under cl 3.6 of TPS 2.
Clause 3.6 of TPS 2 states as follows:
Uses Not Listed
Uses not mentioned in Table 1 [of TPS 2] or not included in the general terms of any use class are deemed to be not permitted, unless special approval is granted by the Council in accordance with the procedures set out in Part 6 of [TPS 2].
For present purposes, it is unnecessary to deal with the procedural provisions found in Pt 6 of the Scheme.
In short, Mr Clay argues, first, that it is incorrect to describe his use of the land as short stay accommodation. Secondly, he argues that the use of the land by his paying guests is, in effect, a normal or usual, or acceptable incident of ordinary domestic residential use.
In very large measure, the planning framework and the relevant facts are common ground between the parties. There are, however, some differences of interpretation and emphasis. As to the planning framework, it is common ground that, under the Residential Design Codes of Western Australia (R Codes), the land has a residential density code of R10 assigned to it; that is, the land is coded as low density residential. It is also not in dispute that:
•short stay accommodation, if that is what the alleged use is, is a use not listed in TPS 2;
•a boarding house, if that is what the alleged use is, is a use prohibited under TPS 2 in this zone;
•a 'dwelling-house single' is a permitted use, as is a residential building; and
•the use of the subject land is regulated by TPS 2.
The alleged unauthorised use of the land arises principally from the following uncontested facts.
First, the webbased advertising material, produced by or on behalf of the applicant, describes 'The Whitehouse Westwing, Serviced Guest Suites in Dalkeith, WA' as follows:
Serviced Accommodation in a prestigious, safe and quiet area about 5 km from the Perth CBD close to the north shore of the Swan River in Dalkeith.
The residence offers 2 queen bedrooms and accommodates up to 4 guests with private lounge, bathroom and wc. Part kitchen and laundry facilities are available. The lounge has TV & DVD. The residence has reverse cycle airconditioning.
Outdoor facilities include solar heated swimming pool & spa and several garden areas where you can relax, eat, drink or socialise outdoors.
There are references to rates at $150 per night for a single or couple sharing a queen bedroom with a private lounge; other tariffs are also mentioned. There is a description of the subject land's location and local attractions. The website then continues with a reference to what are described as 'rates' and there is also a reference to a tariff type, which is described as 'Tariff 1'. It is agreed that no other advertising takes place other than by word of mouth evidenced, presumably, at least in part, by the glowing testimonials published on that website.
Secondly, the number of paying guests directly or indirectly attracted by the website is said by Mr Clay in his witness statement, at para 8, to be as follows:
I have had 41 groups of paying guests (from 1 to 4 guests) stay with me over the 12 months from 1 April 2011 to 31 March 2012. The average number of paying guests per night over the year has been less than 1 paying guest per night (0.84 paying guests). That average is unlikely to climb higher than 1.5 per night (2.5 per night including myself) year on year.
Then at, para 9 of his witness statement, Mr Clay says:
On 212 nights during the year to 31 March 2012, I had no paying guests staying with me; on 53 nights I had 1 paying guest staying with me; on 70 nights I had 2 guests staying with me; on 11 nights I had 3 guests staying with me; on 20 nights I had 4 paying guests staying with me.
Mr Clay has produced to the Tribunal an analysis in the form of a tabulation which is consistent with these observations.
Is the use of the premises for short stay accommodation an incidental use?
Mr Clay characterised the paying guests as, in effect, personal invitees of similar status to his and his wife's close associates, friends and relatives who 'stayed' with him in his home. Accordingly, he submitted that such arrangements do not reach the level of relevant significance to attract planning controls. Unfortunately for the applicant, planning controls will operate if, when viewed objectively, a particular use of land, or an activity carried out thereon, can be characterised as sufficiently significant and separate from any other use. Such matters are questions of fact and degree.
With great respect to Mr Clay's rather - it must be said - idiosyncratic views about the status of his paying guests, it is clear that the advertising material, the accommodation arrangements, the payments made and the scale of visitorship all point to a separate and independent land use one that could not be characterised as incidental to, or included within, the use class of a single dwelling with its connotation of ordinary residential use. Compare, also, the definitions of 'dwelling' under the R Codes and the related definitions under TPS 2.
Mr DW McLeod, who appeared for the respondent, cited the wellknown authority of Lizzio v Ryde Municipal Council (1983) 155 CLR 211 (Lizzio). That case endorses the orthodox characterisation of land use analysis found, for example, in the New South Wales Court of Appeal decision in Food Barn Pty Ltd v Solicitor General (1975) 32 LGRA 157. Lizzio dealt with the issue of land characterisation in relation to a married couple selling some 55 60 bunches of flowers per week, mostly grown on their own land, to augment the husband's fulltime wage. The High Court unanimously held that such a use was a separate and prima facie unlawful use, unless saved in some way. Gibbs CJ said, at 216 217:
Obviously, a person who is entitled to use land for the purpose of a dwellinghouse may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwellinghouse. The question is one of fact and degree. Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision reached in the courts below that the use of the land in the present case could not be regarded as merely incidental to its use for the purposes of a dwelling-house.
The reference by his Honour to the fact that, in the instant case, some flowers were grown on another's land, does not mean that, in every such parallel case, a landowner must use another's land in order to create a relevantly separate use. What is important is that attention must be directed to the nature of the activity, its scale and, as his Honour said, the 'regularity and extent' of the activities involved. There can be no doubt here that, on the admitted facts, a separate use of the subject land has been established within the tests enunciated and endorsed in Lizzio.
Neither party suggested that the activity attracted the classification as a boarding house under the Scheme. So, what classification best describes the identified separate activity? In MacKenzie v Warringah Council [2002] NSWLEC 246; (2003) 124 LGERA 208, Cowdroy J refers, at [13], to the definition of 'short term accommodation' contained in a local planning scheme as follows:
'Shortterm accommodation' means the use of land for the temporary accommodation of the travelling public and includes a serviced apartment, a motel, holiday flat and a backpackers['] hostel, but does not include a dwelling or a hotel. [Emphasis added]
In the Tribunal's opinion, such a definition, which focuses on the use of the land for the temporary accommodation of the travelling public, captures the essential notion of what short stay accommodation is. The expressions 'short stay' and 'short term' accommodation are, in my view, more or less interchangeable for present purposes.
Viewed accordingly, the separate use identified on the facts here is a use not listed within the Scheme, and the direction issued by the City is, therefore, given the absence of any planning permission, wholly justified.
It should be mentioned that, of the main cases cited by the applicant, neither has application to the present circumstances. In West Coast Enterprises Pty Ltd and Shire of Exmouth [2007] WASAT 316, the Tribunal was dealing with a specific definition and with the evolutionary nature of petrol stations and their incidental activities of selling items ordinarily found in a shop attached to or incorporated within a petrol station. Re Carey; Ex parte Exclude Holdings and Ors [2006] WASCA 219; (2006) 32 WAR 501 was essentially a strata title case dealing with a use class of tourist accommodation and grouped dwellings in another regulatory context. Much of the case is taken up with analysing the original reasoning of the Tribunal; however, nothing in that case, in my view, assists this review. In particular, nothing in that case detracts from the orthodox planning principles discussed above.
Conclusion
The application of these principles leads the Tribunal to conclude that Mr Clay is engaged in a separate unauthorised use of his land; that is, a use not listed under TPS 2. That use is accurately described as 'short stay accommodation' and, therefore, the decision to issue the direction should be affirmed.
When should the Tribunal's decision come into effect?
Section 82(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) reads as follows:
A decision of the Tribunal comes into effect immediately after it is given, or at such later time as is specified in it, except as otherwise provided in section 29(5).
However, s 82(2) of the SAT Act goes on to say:
Subsection (1) does not prevent a stay of the effect of the decision from being given under section 106 [by the Supreme Court].
A stay of the Tribunal's decision, if required, should be given only by the Supreme Court acting under s 106 of the SAT Act.
However, the Tribunal is aware of at least one other case (Carmel Saliba and Town of Bassendean (DR 157 of 2011)) involving the confirmation of a local government notice over a Christmas period, where the Tribunal delayed the coming into effect of the notice (which had been affirmed) because of the applicant's special circumstances. This was to allow him sufficient time in the holiday period to arrange contractors for the work that he had to do. In addition, in that case the applicant was an elderly, ill and self-represented gentleman.
Given that case, the principle seems to be that, if there are special circumstances, then they may justify a delay in the coming into effect of a decision (whether expressed in relation to the decision itself or the notice the subject of the review). In this case, the Tribunal considers that the reasons advanced by Mr Clay, including the possible prejudice to his existing operations, although perhaps not strictly coming within the category that has so far been identified, in all of the circumstances, would justify a short 'delay'. This should not be seen as a necessary precedent for other such cases; each will, of course, have to be considered on its individual merits.
The date of effect of the decision will be, therefore, seven days after the day on which these orders are published to the parties.
Orders
The Tribunal makes the following orders:
1.Subject to these orders, for the reasons given, the application for review is dismissed.
2.Consequently, the decision to issue the Direction under review is affirmed, and the stay previously granted by the Tribunal is dissolved.
3.The date of effect of these orders is specified to be seven days after the day on which these orders are published to the parties.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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