Clay v City of Nedlands
[2012] WASC 402
•30 OCTOBER 2012
CLAY -v- CITY OF NEDLANDS [2012] WASC 402
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 402 | |
| 30/10/2012 | |||
| Case No: | GDA:8/2012 | 18 OCTOBER 2012 | |
| Coram: | HALL J | 18/10/12 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARK GREGORY CLAY CITY OF NEDLANDS |
Catchwords: | Appeal from State Administrative Tribunal Planning law Whether use of residence for short term accommodation was a permitted use Whether incidental to use as a dwelling Whether grounds raise a question of law |
Legislation: | Planning and Development Act 2005 (WA), s 214 |
Case References: | Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 Paridis v The Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Re Carey; Ex Parte Exclude Holdings [2006] WASCA 219; (2006) 32 WAR 501 Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CITY OF NEDLANDS
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR PETER McNAB (Senior Member)
File No : DR 496 of 2011
Catchwords:
Appeal from State Administrative Tribunal - Planning law - Whether use of residence for short term accommodation was a permitted use - Whether incidental to use as a dwelling - Whether grounds raise a question of law
(Page 2)
Legislation:
Planning and Development Act 2005 (WA), s 214
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr D W McLeod
Solicitors:
Appellant : In person
Respondent : McLeods
Case(s) referred to in judgment(s):
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211
Paridis v The Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Re Carey; Ex Parte Exclude Holdings [2006] WASCA 219; (2006) 32 WAR 501
Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
(Page 3)
- HALL J:
(These reasons were delivered orally and have been edited from the transcript)
Introduction
1 This is an appeal from a decision from the State Administrative Tribunal. Such an appeal requires leave and can only be brought on a question of law: s 105 of the State Administrative Tribunal Act 2004 (WA).
Background
2 The appellant, Mr Clay, is the owner of a residential property in Hynes Road, Dalkeith. He lives at the house and also makes some rooms available for paying guests. This came to the attention of officers of the relevant local government authority, the City of Nedlands, who took the view that the use of the property for short stay accommodation required planning approval.
3 On 20 December 2011, the City issued a written direction to the appellant directing him to stop using the property for the purposes of short term accommodation. The direction stated that the use amounted to carrying out development and that under cl 6.1.1(a) of the City of Nedlands Town Planning Scheme No 2 (the Scheme) no person was permitted to commence or carry out any development unless planning approval had first been obtained from the city and that no such approval had been obtained.
4 The written direction was issued pursuant to s 214(2) of the Planning and Development Act 2005 (WA). That subsection provides that a written direction can be given to an owner to stop development that is undertaken in contravention of, amongst other things, a planning scheme. Subsection 214(1) provides that a development is undertaken in contravention of a planning scheme if the development is required to comply with the planning scheme and is commenced, continued or carried out otherwise than in accordance with the planning scheme. Failure to comply with a written direction is an offence under s 214(7) of the Act.
5 The word 'development' as used in the Act is defined in s 4 to mean the development or use of any land. Certain specific types of development are included in the definition, but they are not relevant for present purposes. In this case, the development is said to be a use of the land, in particular use for short term accommodation.
(Page 4)
6 The appellant's property is zoned residential under the Scheme. The permitted uses for land covered by the Scheme are those set out in Table 1 which is appended to cl 3.3 of the Scheme. Uses are designated as permitted, not permitted unless approval is granted by the Council, not permitted unless the use is incidental to the predominant use and approved or not permitted at all.
7 In the case of land zoned residential, the permitted uses are 'Item 10 caretaker's dwelling', 'Item 22 dwelling house - single', and 'Item 32 home occupation'. The uses not permitted unless approved by the council are 'Item 11 carpark', 'Item 14 child day care centre', 'Item 23 dwelling house - grouped/attached', 'Item 31 home business', 'Item 59 public utility', 'Item 63 recreation - public', 'Item 65 residential building' and 'Item 81 any other use not included above (see cl 3.6)'.
8 All other specified uses are not permitted. There are no incidental uses that are designated as permitted with approval. Amongst the many uses that are not permitted on land zoned residential are 'Item 4 boarding house', 'Item 35 hostel' and 'Item 36 hotel'.
9 There are definitions of some of these terms in cl 1.8. It is unnecessary to recite the definitions here. It is sufficient to note that the use here does not fall within the definitions for a boarding house, hostel or hotel. In particular, a boarding house is a premises at which provision is made for lodging more than four people excluding the owners and their family.
10 Clause 3.6 of the Scheme provides that uses not mentioned in the table 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.
11 Clause 3.4 provides that where a particular use is referred to in Table 1 it is excluded from any more generally framed use. The effect of this is to require the most specific use referred in the Table to be the relevant and applicable use when determining what is permitted. This is clearly to avoid any confusion that would flow from the overlap of different uses on the Table.
12 The effect of the Table is that the appellant is permitted, without obtaining approval, to use his property for a single dwelling, a caretaker's dwelling or a home occupation. Any other use is either prohibited without approval or entirely prohibited.
(Page 5)
13 There is no dispute that the appellant lives at the property. It is therefore used as a dwelling. However, it cannot be doubted that land can be used in more than one way at the same time. The issue here was whether the appellant's use of his property as short-term accommodation for paying guests was covered by the permitted use as a single dwelling house.
14 There is no entry in the Table referring specifically to short term accommodation. The position of the City is that this is a use falling under item 81 and thus requires approval of the Council.
The proceedings in the State Administrative Tribunal
15 The written direction was reviewable in the SAT. On 23 December 2011, the appellant filed an application for review. His grounds were that the property is a dwelling and his permanent residence and that he did not require approval for guests to stay with him in circumstances where there was never more four guests staying at any one time.
16 The appellant filed a witness statement in the SAT dated 2 April 2012. In that statement he described in detail the nature of the accommodation arrangements. He said that he offered two bedrooms to paying guests. The rate for one queen room was $150 per night for singles or couples. Additional guests using the second queen room would be charged $50 per night for a single and $100 per night for a double.
17 He said he had had 41 groups of paying guests from one to four people in the 12 months from 1 April 2011 to 31 March 2012. Guests had stayed on 154 nights in that 12 month period. On 53 nights one guest stayed. On 70 nights two guests stayed. On 11 nights three guests stayed. On 20 nights four guests stayed.
18 Paying guests were permitted a maximum of two cars which could be parked in a separate driveway, the house being a corner house with two street frontages. The appellant said that usually guests had one car, sometimes they had none, and on one occasion they had two.
19 The appellant said that there is no advertising on the property and he does not accept walk-in trade. He said that guests are met online. There was some evidence of the premises being included on an Internet accommodation booking site.
20 The appellant said that while there were commercial aspects to this activity, it was also a lifestyle choice for him. He said that it gave him the
(Page 6)
- opportunity to meet people from all over the world, some of whom might become friends or at least return visitors.
21 The hearing in the SAT took place on 24 April 2012 and a decision was delivered on 26 April 2012. The decision was to dismiss the application for review and affirm the direction notice.
22 The reasons for decision of the Tribunal state:
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 [17] - [18].
23 After consideration of a definition of 'short term accommodation', being the phrase appearing in the written direction, as meaning use of land for temporary accommodation of the travelling public, the senior member constituting the Tribunal then said:
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 [22] - [23].
Grounds of appeal
24 The grounds of appeal stated in the notice of appeal are as follows:
(Page 7)
- The Learned Master made errors of law
1. In holding, in effect, that providing temporary accommodation for members of the travelling public within my home is not a residential use.
2. In failing to make a finding that the welcoming of visitors, guests, lodgers, boarders for short stays in residential accommodation is within the general terms of the defined used close of 'Dwelling'.
3. In saying (at page 4 C) that 'the advertising material, the accommodation arrangements, the payments made and the scale of visitorship all clearly point to a separate independent land use, one which could not be characterised as incidental to or included with the use class of a single dwelling with its connotation of ordinary residential use' but:
3.1. failing to give reasons why having visitors stay is not a residential use;
3.2. failing to give reasons why having less than one visitor per day is a scale that precludes classification as a residential use;
3.3. failing to state what amounted to 'ordinary residential use' or provide reasons for that finding;
3.4. failing to address submissions on several examples of significantly higher volume visitor stays not requiring council approval;
4. In failing to give reasons why the 'home occupation' use permitted in Residential Zones under the Scheme does not apply or authorise and make irrelevant the commercial elements of (offsite internet) advertising and acceptance of payment for bookings for future guests.
5. In distinguishing the comments of Justice McLure in Re Carey; Ex Parte Exclude Holdings Pty Ltd [2006] WASCA 219 at paragraph 163, 165 to 172 in the circumstance where those comments apply equally to the fact situation here.
6. In relying on and failing to distinguish the case of Lizzio v Ryde Council (1983) 155 CLR 211 and the passage of Gibbs CJ at 216 in that the Chief Justice was not referring to the inherently residential purpose of accommodating people as is the case here, but to the storage and sale of items of personal property.
7. In stating that a boarding house is a prohibited use for a residential zone under the Scheme when only 'Boarding Houses' as narrowly defined in the Scheme are prohibited. By implication, as a matter
- of statutory interpretation, the Learned Member ought to have held consistent with my submissions that other boarding houses are a permitted and normal residential use of a dwelling.
- 8. In supporting his findings by reference only to the phrase 'orthodox planning principles' without defining what those planning principles are in the context of this case and why they are to be regarded as orthodox.
Question of law and leave to appeal
25 As noted at the commencement of these reasons an appeal of this nature can only be brought on a question of law and with leave. In Paridis v The Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] - [18] (Buss JA with whom Wheeler and Pullin JJA agreed) said that leave should be granted if in all the circumstances a grant of leave is in the interests of justice.
26 In Paridis Buss JA adopted the guidelines referred to in Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, they being that the applicant must identify a question of law which is relevant to the granting of the relief sought and the applicant must show that there is a real and significant argument to be put on that question. The applicant may also have to show that to allow the error to go uncorrected would impose substantial injustice.
27 Also in Paridis, Buss JA considered what constituted a question of law. His Honour said:
An appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'. Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2). See, in the context of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the observations in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 58 - 60 [10] - [18]; Comcare v Etheridge (2006) 149 FCR 522 at 527 [13] - [17]. Section 44(1) of the Administrative Appeals Tribunal Act provides that an appeal from a decision of the Administrative Appeals Tribunal may only be made 'on a question of law'. That provision is not materially different from the provisions of s 105(1) and (2) of the Western Australian Act.
A ground of appeal which asserts that a decision is against the evidence and the weight of the evidence does not raise a question of law. See
(Page 9)
- Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407, where Fox, Deane and Morling JJ said, at 410:
… the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses … An appellant who attacks a conclusion of the [Administrative Appeals Tribunal] because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based.
Also see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ (with whom Brennan J agreed) at 355 - 356; Comcare Australia v Lees (1997) 151 ALR 647 at 652 - 653; Townsend v Minister for Immigration and Multicultural Affairs [2001] FCA 492 at [4] - [7]; Hill v Repatriation Commission (2005) 218 ALR 251 at 268 [92] - [93].
A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis. See Waterford v Commonwealth (1987) 163 CLR 54 at 77; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257 [146].
A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law. See Federal Commissioner of Taxation v McCabe (1990) 21 ALD 740 at 742.
A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40. It is not sufficient, however, if the consideration is merely one that may properly be taken into account, or that many persons may have taken into account. See CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 183; Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690 at 692. There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other. In Xie Mian Shen v Minister for Immigration and Ethnic Affairs, unreported; Fed C of A; 9 August 1995, French J said, at 15 - 16:
There is a distinction to be drawn between taking into account relevant considerations and taking into account particular pieces of
- evidence - Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225. In the present case the primary relevant considerations are those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.
The allegations that the tribunal failed to take into account relevant considerations in this case are, on the face of the application, founded upon the failure of the tribunal to take into account particular pieces of evidence. None of the grounds in this respect is capable of sustaining a case that the tribunal failed to take into account relevant factors. [53] - [57]
28 The principles stated by Buss JA on this issue can be summarised as follows:
(1) a question of mixed fact and law is not a question of law within s 105(2) of the State Administrative Tribunal;
(2) a ground which asserts that a decision is against the evidence and the weight of the evidence does not raise a question of law;
(3) an error of law is not committed because the Tribunal finds facts wrongly or on a doubtful basis;
(4) a ground that asserts that a finding is manifestly unreasonable in that no reasonable Tribunal could have made it does allege an error of law;
(5) a ground that asserts a failure to take into account the consideration which the Tribunal was bound to take into account does allege an error of law; and
(6) it is not sufficient if the consideration is one that could have been taken into account or that many people would have taken into account.
The merits of the appeal
29 The issue in this case was always a simple one; was the use of the property by the appellant permitted under the Scheme? The use in question was the provision of short term accommodation to paying guests. The facts were never in dispute. Indeed, the details were largely provided by the appellant in his statement to the Tribunal.
(Page 11)
30 The appellant argued that the use was covered by the permitted use of the property as a dwelling. This necessitated consideration of what use of a property as a dwelling means in the context of the Scheme. The meaning must be determined not in isolation but in the context in which it is used.
31 There is a definition of 'dwelling' in cl 1.8 of the Scheme. It reads:
Dwelling - means a building or portion of a building containing at least one living room and includes rooms, outbuildings and other structures attached to or separate from such building but ancillary thereto; such building or portion thereof being used or intended, adapted or designed to be used for the purpose of human habitation on a permanent basis by-
• a single person,
• a family, or
• no more than six (6) persons who did not comprise a single family;
32 That definition makes no reference to guests, paying or otherwise. The reference to 'permanent basis' clearly precludes those for whom the premises are a transient place to stay and whose permanent place of residence is elsewhere. Does this mean that the Scheme does not permit residents to have friends to stay? In my view no because that is an accepted and ordinary incident of residing in a house. It would not constitute a separate use.
33 That the definition of dwelling in the Scheme is not intended to be exhaustive is also supported by the reference in cl 3.6 to uses either mentioned in the Table or included in the general terms of a use class. This allows for the possibility that there will be some activities that are incidental or ancillary to a permitted use; such activities would be included in the general terms of a use class.
34 Whether use of a property constitutes a distinct and separate use is a question of fact and degree. That is precisely the type of question that is not amenable to appeal. What the Tribunal had to do in this case was decide whether on the known facts what the appellant was doing constituted a use that was not permitted by the Scheme. The finding that the use was not covered by use as a dwelling but was short term paid accommodation was a finding of fact. The appellant however submits that errors of law were made by the Tribunal in reaching its decision.
(Page 12)
Grounds 1 and 2
35 The appellant argued these two grounds together. In essence he claims that the Tribunal erred by finding that the provision of temporary accommodation to members of the travelling public was not a residential use and did not fall within the permitted use of the land as a dwelling. On the face of them both of these grounds appear to be complaining about findings of fact.
36 However, what the appellant is saying is that the Tribunal misconstrued the meaning of the term 'dwelling house - single' where it appears in the Table. The meaning of the term is determined by the definitions contained in the Scheme. To the extent that the definitions are inadequate, regard may be had to the ordinary meaning of the words given the context in which they appear.
37 The definition of dwelling that I have earlier mentioned refers to a building used or intended, adapted or designed to be used for the purpose of human habitation on a permanent basis. As I have also noted earlier, there is no doubt that the property is used as a dwelling by the appellant in that he uses it as his place of permanent residence. That, however, is not the issue.
38 It does not follow that because land is used for a dwelling all uses of it are therefore permitted. Whether some other use is a distinct and separate use or is merely an incidental part of a permitted use will depend upon the regularity and extent of the other activities. This was appreciated by the senior member in referring to Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211; in particular, the passage in the judgment of Gibbs CJ 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 (216 - 217).
(Page 13)
39 The senior member said, after referring to that passage:
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 [20].
40 The Tribunal found that the distinct and separate use of the property could be characterised as short term accommodation. This is not a use otherwise referred to in the Table and thus the conclusion was that approval was required under Item 81. This was not merely a matter of attaching a label to the use but examining the substance of the activity.
41 The appellant suggested that when regard is had to the definition of 'boarding house' in the Scheme, it could be inferred that the Scheme was not intended to regulate circumstances where temporary accommodation was provided for four or fewer guests and that such circumstances must have been thought to be encompassed by dwelling use.
42 I do not accept that argument. It misconstrues the way in which the Table operates. The fact that a boarding house is absolutely prohibited in a residential area does not imply that anything which involves providing board or lodging for four people or less is necessarily permitted. To know what is permitted it is necessary to look at the items on the table that refer to permitted uses and determine whether the activity in question falls within those items.
43 It was not the task of the Tribunal to postulate where the precise boundaries of dwelling use would lie or to consider every possible circumstance that might arise in the context of such use. Rather, the task was to consider what use had occurred in this case and determine whether that was accommodated within dwelling use. There were two stages involved: was the use a distinct and separate use and if so, was it a permitted use under the Scheme?
44 Both of those questions required the Tribunal to have regard to the nature and extent of the activity in this case. It would be of no assistance to speculate on whether other activity of a different nature or extent would fall within the permitted dwelling use. In this case the Tribunal considered that the nature and extent of the use made it a separate use and one that did not fall within the category of use as a dwelling.
(Page 14)
45 This was a conclusion reached after referring to the follow matters:
(1) that the appellant advertised the availability of accommodation on the Internet;
(2) that he charged rates of between $150 and $250 per night;
(3) that a part of his house was designated as being exclusively available to those guests; and
(4) that during the 12 months to 31 March 2012, guests had stayed on a total of 154 nights.
46 Whether this was encompassed within dwelling use or was a separate use as paid short term accommodation was entirely a question of fact. It did not depend on questions of interpretation, it involved no questions of law. Even if it did involve such a question I do not consider that there is any basis for suggesting that the senior member erred in his understanding or application of the relevant legal principles.
47 The appellant has argued that having guests paying or not is an accepted residential use and a component of dwelling in a house. So much may be accepted but it does not follow from that that any number of guests, over any period, on any terms, is consistent with use as a dwelling. At some point such use is no longer incidental to use as a dwelling but a separate use as short term accommodation.
48 The appellant argues that it is impossible to know where the line is drawn and that the Tribunal did not articulate where that boundary lay. That is not to the point. There may be cases where the circumstances will not clearly indicate a separate use but this was not one of them. The senior member had regard to the circumstances and came to the conclusion on the facts. There can be no reasonable basis for suggesting that that conclusion was not one that was open to him.
Ground 3
49 This ground complains that the reasons of the Tribunal were inadequate. Particular failings are identified. It is important to note that it is not appropriate on a review or an appeal to examine reasons 'minutely and finely with an eye keenly attuned to the perception of error': See Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287.
(Page 15)
50 The particular alleged failings here proceed from an assumption by the appellant as to what the real issues were. The appellant says that the senior member failed to give reasons why having visitors stay is not a residential use and why 'having less than one visitor a day', precludes residential use. But the member did not say that having guests to stay was not a residential use, so it is unsurprising that there were no reasons in that regard.
51 The senior member addressed the use that was occurring and referred to the need to consider the fact and degree in respect of that use. He referred to the nature, frequency, numbers of guests and commercial nature of the activity. In doing so, he identified the test he was applying and the factors taken into account. No more could be expected.
52 As to failing to state what amounted to ordinary residential use, that would be an exercise that might never be meaningfully completed. In any event, the relevant question was whether this use was within the scope of use as a dwelling. The senior member found it was not and gave adequate reasons for that finding.
53 As to the suggestion that there was a failure to address submissions as to examples of higher volume visitors that did not require approval, these were examples contained in written submissions that the appellant made to the Tribunal. It was not the task of the Tribunal to express views about other circumstances that were not before it. The reasons did not have to address those examples and there is no failing in that regard.
Ground 4
54 This ground relates to an item that appears in the Table, in relation to a 'home occupation'. The definition of 'home occupation' in cl 1.8 is as follows:
Home occupation - means an occupation carried out in a dwelling or on land around a dwelling by an occupier of the dwelling which:
i) does not employ any person not a member of the of the occupier's household;
ii) will not cause injury to or adversely affect the amenity of the neighbourhood;
iii) does not occupy an area greater than 20 square metres;
iv) does not display a sign exceeding 0.2 square metres;
(Page 16)
- v) does not involve the retail sale, display or hire of goods of any nature;
vi) in relation to vehicles and parking, does not result in the requirement for a greater number of parking facilities than normally required for a single dwelling or an increase of traffic volume in the neighbourhood, does not involve the present, use or calling of a vehicle more than 2 tonnes tare weight, and does not include provision for the fuelling, repair or maintenance of motor vehicles; and
vii) does not involve the use of an essential service of greater capacity than normal required in the zone;
55 The fact that 'home occupation' as defined includes the possibility that such an occupation can include commercial considerations is said by the appellant to mean that such considerations were irrelevant to the exercise that the Tribunal had to engage in respect of this matter.
56 The appellant's argument is that because a home occupation is permitted and can include commercial activities, then the fact his activity included some commercial aspects was an irrelevant consideration. He says that this was not a matter referred to by the senior member in his reasons.
57 Indeed, it was not referred to by the senior member, but this is because, firstly, this was not an issue raised in the Statement of Issues, Facts and Contentions of the appellant in the Tribunal, and secondly, it was not raised in his oral submissions.
58 The appellant says this is because he was interrupted by the senior member. He also says that it was not included in the Statement of Issues, Facts and Contentions because it was something that was raised or intended to be raised by him in rebuttal to the City's reliance on the commercial nature of the activity as being a relevant consideration.
59 It is far from apparent that this was a matter ever clearly raised in the Tribunal. There can, therefore, be no error in it not being addressed in the reasons. In any event, the contention that because another permitted activity may have a commercial component makes the commercial nature of this activity irrelevant is entirely without merit.
60 In determining whether a separate use was occurring and what its nature was, the Tribunal quite properly took into account all of the circumstances. It was clearly relevant to the question of whether this
(Page 17)
- activity was incidental to use as a dwelling to consider whether it was intended to, and did in fact, make money for the appellant.
Ground 5
61 This ground asserts that the senior member erroneously distinguished the decision of the Court of Appeal in Re Carey; Ex Parte Exclude Holdings [2006] WASCA 219; (2006) 32 WAR 501. This was a decision that was relied upon by the appellant in the Tribunal and on this appeal.
62 That case involved an application for prerogative writs against the SAT in relation to a decision in respect of another scheme, the Busselton District Planning Scheme No 20. It was a different scheme with different provisions. In particular it permitted by cl 22 that the Council of the relevant local authority could approve a use that was within the intent and purpose of the Scheme, though not within the terms of any specified permanent purpose.
63 As opposed to that, cl 3.6 of the present Scheme permits regard to be had to the general terms of a permitted use, but otherwise requires approval where indicated. The appellant particularly relied upon a passage that appears in the judgment of McLure J:
The appellants submitted that, on the facts found by or conceded in the Tribunal, the development must be a grouped dwelling. The respondent had conceded that the units in the development were on the same lot and no unit was placed wholly or partly vertically above another. The appellants relied on this concession as requiring a finding that the development was a grouped dwelling. That is clearly wrong. To be a grouped dwelling, the buildings must also satisfy the definition of 'dwelling' which requires the building to be 'used or intended, adapted or designed to be used for the purpose of human habitation on a permanent basis' by the persons specified. However, there is nothing in the definition of dwelling or grouped dwelling to prevent the units in the development from being a dwelling or grouped dwelling simply because of the Tribunal's finding that the appellants used their units for commercial gain by renting them out for short-stay holiday accommodation [166].
64 That passage does not assist the appellant. Nobody is here suggesting that there is anything in the definition of 'dwelling' that precludes a building from being a dwelling simply because it is used for short term accommodation. The respondent accepts that the property in question is a dwelling and is so used. Here, however, there is said to be another use that is so significant as to constitute a separate use and is one that is not covered by the definition of dwelling and requires approval. In
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- those circumstances, there was no error in regard to the way in which the Tribunal dealt with the decision in Re Carey.
Ground 6
65 Ground 6 asserts that the Tribunal was in error to rely upon the decision of the High Court in Lizzio, which I have earlier referred to. Clearly the facts in Lizzio were different to the present case but that was a matter that was recognised by the senior member. He relied upon that decision not for any factual similarity but for a general principle in regards to incidental uses. That was stated by Gibbs CJ and is referred to earlier in these reasons. There was no error in referring to that matter of general principle and it was clearly applicable in the circumstances of this case.
Ground 7
66 As to ground 7, the assertion is that by reference to the definition of 'boarding house' it can be concluded that uses that might otherwise fall under a common definition of boarding house but which do not fall within the definition of boarding house under the Scheme, are not prohibited. This is a proposition that I have dealt with substantially earlier. It is simply not a tenable argument and there was no error in regards to the way in which the learned member dealt with that particular aspect.
Ground 8
67 As to ground 8, the appellant refers to the fact that the senior member used the term 'orthodox planning principles' and says that this was not a term that was explained in the reasons and that for that reason the reasons are deficient. The phrase was used in the summary of the senior member's reasons [2].
68 It is perhaps not a very helpful phrase, in that it is not clear exactly what principles it is that the senior member was referring to, but it is, as I have said earlier, not appropriate to finely examine reasons or to remove a phrase from context. In order to determine the sufficiency of the reasons, it is necessary to look at them in their totality and those reasons when viewed in that light do set out the basis for the decision adequately.
Conclusion
69 In substance, then, each of these grounds when examined is revealed to be either an attack upon a finding of fact or a mixed question of fact
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- and law; as such, they do not raise appellable issues. In any event, they are not, in my view, reasonably arguable.
70 This was a decision that turned on the particular facts, not on the law or any issue of law. Leave therefore in respect of each of the grounds of appeal is refused and the appeal will be dismissed.
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