Daawah Association Of Western Australia Inc and City Of Canning
[2009] WASAT 129
•26 JUNE 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DAAWAH ASSOCIATION OF WESTERN AUSTRALIA INC and CITY OF CANNING [2009] WASAT 129
MEMBER: MS M CONNOR (MEMBER)
HEARD: 20 APRIL 2009
DELIVERED : 26 JUNE 2009
FILE NO/S: DR 284 of 2008
DR 286 of 2008
DR 127 of 2009
BETWEEN: DAAWAH ASSOCIATION OF WESTERN AUSTRALIA INC
Applicant
AND
CITY OF CANNING
Respondent
Catchwords:
Town planning - Development - Use of premises - Increase in occupancy - Whether activity occurring at premises on Friday afternoons is a prohibited use - 'Public Worship'; 'public worship - place of or place of public worship' - Definition inclusive not exhaustive - Premises plays a dual role - Parking issue
Town planning - Direction - Non-compliance of condition of planning approval - Use of premises by a greater number of persons as provided for in condition of approval - Orderly and proper planning - Impacts of the contravention
Legislation:
City of Canning Town Planning Scheme No 40, Table 3, Appendix 1
Planning and Development Act 2005 (WA), s 214, s 214(2)
State Administrative Tribunal Act 2004 (WA), s 51(1)
Result:
The application for review relating to DR 284 of 2008 is dismissed and the decision of the respondent is affirmed
The application for review relating to DR 127 of 2009 is dismissed and the decision of the respondent is affirmed
The application for review relating to DR 286 of 2008 is dismissed and the direction issued pursuant to s 214 of the Planning and Development Act 2005 (WA) is affirmed but varied
Category: B
Representation:
Counsel:
Applicant: Mr V Paparo
Respondent: Mr D McLeod
Solicitors:
Applicant: Freehills
Respondent: McLeods
Case(s) referred to in decision(s):
Canterbury Municipal Council v Moslem Alawy Society Ltd (1987) 162 CLR 145
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Daawah Association of Western Australia Inc was granted approval in 2001 for the use of Unit 1A, 45 - 47 Kent Street, Cannington for 'Community Purpose and Educational Establishment'. A condition of approval required that the occupancy of the premises not exceed a total of 20 persons at any time. It was brought to the attention of the City of Canning in 2007 that the number of persons attending the premises on Friday afternoons was in excess of the number specified as the condition of approval. It was established that the activity occurring at the premises on Friday afternoon was a prayer service known as Jumu'ah salah (Friday prayers). The City of Canning issued a direction under s 214(2) of the Planning and Development Act 2005 (WA) requiring compliance with the condition of approval. The Daawah Association of Western Australia Inc subsequently applied for retrospective planning approval for an increase in the occupancy of the premises, which was refused by the City of Canning.
These proceedings involve a review of the decision of the City of Canning to issue a direction, the imposition of condition 5 on the planning approval and the decision of the City of Canning to refuse retrospective planning approval for an increase in the occupancy of the premises.
Initially the single issue identified in these proceedings related to whether an increase in the number of persons attending the 'Community Purpose and Educational Establishment' was acceptable given the adequacy of the applicant's parking plan or arrangements. However, as the matters progressed, a threshold issue was identified as to whether the activity occurring at the premises on Friday afternoons was a use that was prohibited by the City of Canning Town Planning Scheme No 40.
The Tribunal found that the activity occurring on Friday afternoons was 'Public Worship' and therefore involved the use of the premises as a 'place of public worship' which is prohibited in the 'Light Industry' zone.
Notwithstanding the above finding, the Tribunal considered the possibility that if the use was permissible, whether an increase in the number of persons attending the premises was acceptable in terms of the proposed parking arrangements. The applicant had identified two possible car parking areas that could possibly be used for the joint provision of car parking. The Tribunal was not prepared to consider the joint use of parking facilities in this instance, particularly given that the arrangement was not consensual and secondly, there was no evidence to satisfy that there would be no substantial conflict arising in the identified parking areas as a result of the joint arrangement. The Tribunal considered that there was insufficient parking provided on-site to satisfy parking demand and the over flow of vehicles off-site was contrary to orderly and proper planning and the preservation of the amenity of the locality.
The applications for review were dismissed and the direction was affirmed but varied.
Introduction
There are three applications for determination in these proceedings. DR 286 of 2008 is an application to set aside a direction issued by the City of Canning (respondent or City) to Daawah Association of Western Australia Inc (applicant) pursuant to s 214(2) of the Planning and Development Act 2005 (WA) (PD Act). The direction requires that the applicant is to ensure that the use of the premises at Unit 1A, 45 - 47 Kent Street, Cannington (premises or DAWA Centre) is conducted at all times in accordance with Development Approval 16/8057. In particular, the applicant is directed to stop and not recommence use of the premises for more than 20 persons at any time as provided for in condition 5 of Development Approval 16/8057.
Matter DR 284 of 2008 arises from an application for review of condition 5 of the planning approval granted by the respondent for 'Change of Use - Community Purpose and Education Establishment' for the subject premises. Condition 5 reads as follows:
The occupancy of the subject premises is not to exceed a total of 20 persons at any given time.
The other proceedings, matter DR 127 of 2009, relates to a review of the decision of the respondent to refuse retrospective planning approval for an increase in occupancy from 20 people to 100 people for the 'Community Purpose and Education Establishment' at the subject premises. The respondent's reasons for refusal were:
(i)Insufficient on-site parking spaces are available to meet the parking requirements under the Scheme for a retrospective increase in the permitted occupancy number from 20 to 100 persons.
(ii)The increase in off-site vehicle parking that would be associated with approving such an increase in occupancy numbers is not in the interests of orderly and proper planning and the preservation of the amenity of the locality.
The Tribunal on 16 April 2009 ordered, pursuant to s 51(1) of the State Administrative Tribunal Act 2004 (WA), that the three matters remain as separate proceedings but be heard and determined together.
Subject premises and its context
The subject premises are situated on Lot 67 Kent Street, Cannington, which is zoned 'Light Industry' under the City of Canning Town Planning Scheme No 40 (TPS 40 or Scheme).
The premises are described as Lot 2 on Strata Plan 10791 contained in Certificate of Title Volume 1627 Folio 778 and is one of nine industrial units in the subject strata scheme. The other units in the strata scheme are used for industrial purposes. All of the units are currently occupied by businesses including pool supplies, auto mechanics, smash repairs and transmissions repairs.
Background
There is considerable history relating to these premises and it is appropriate that the events leading to this point should be set out in full in order to understand the background to the matters before the Tribunal.
In November 2001, a representative of the applicant made application to the City for development approval to use the premises for community youth training and education. The City, on 29 November 2001, granted planning approval to a change of use of the premises to 'Community Purpose and Educational Establishment' subject to the following 6 conditions:
1.The proposed development is to comply in all respects with the submitted plans approved on 29.11.2001 and stamped accordingly.
2.The one (1) metre landscaping strip along the front verge to be upgraded to incorporate one shade tree per 6 parking bays, to be established with 90 days of the subject development first becoming occupied or commencing operations, and thereafter maintained. Landscaping to be protected by kerbing or similar barrier.
3.An area of the site which can accommodate 45 parking spaces and their access aisles to City Zoning Scheme standards shall be reserved for car parking. Before the subject development is first occupied or commences operation an area of the parking reserve which is, in the opinion of the Council, sufficient to accommodate all staff and visitor vehicles is to be constructed and thereafter maintained in accordance with the relevant Australian Standards and Council specifications.
4.Existing fencing on site is to be upgraded to comply with Council's Fencing Local Laws and Policy Relating to Fencing in Residential Areas.
5.The occupancy of the subject premises is not to exceed a total of 20 persons at any time.
6.The proposed use is not permitted to operate between 9:00pm and 8:00am daily.
On 2 March 2007, the respondent received a letter of complaint from the strata manager of an adjoining property about patrons of the DAWA centre parking on the verge and grounds at No 49 - 51 Kent Street. An investigation by the City revealed that on Fridays the number of people attending the premises exceeded the maximum number specified in condition 5 of the planning approval issued on 29 November 2001. On 5 October 2007 the respondent wrote to the owner of the premises requesting that the conditions of planning approval be complied with.
Between January 2008 and May 2008 the parties attempted to resolve the issue of non-compliance, however, a solution was not found. Consequently, the respondent issued a direction under s 214(2) of the PD Act resulting in the applicant seeking review of the direction (DR 286 of 2009) and of condition 5 of the planning approval granted in 2001 (DR 284 of 2008) by the State Administrative Tribunal.
The applicant, in November 2008, submitted a further application for retrospective planning approval to increase the occupancy of the premises to 100 persons at any give time. This application was considered by the respondent at its meeting of 10 March 2009, where the matter was refused for the reasons as set out in [9] above. The applicant subsequently sought review of the respondent's decision (DR 127 of 2009).
Issues
Initially, the single issue identified in these proceedings related to whether an increase in the number of persons attending the 'Community Purpose and Educational Establishment' is acceptable given the adequacy of the applicant's parking plan or arrangements. However, as the matters progressed, a threshold issue was identified as to whether the activity occurring at the premises on Friday afternoons is a use that is prohibited by TPS 40. It was agreed that the large influx of people attending the premises on Friday afternoons stemmed from a prayer service, known as Jumu'ah salah.
Threshold Issue
The respondent contended that the activity occurring on Friday afternoon, that being Friday prayers, falls within the use class 'Public Worship' and as such, is an activity that cannot be approved in the 'Light Industry' zone as it is classified as a prohibited use. As a secondary argument the respondent asserted that generally the place has the character of a masjid or mosque (place of public worship) and is set up primarily to support its use for public worship on Fridays and therefore, is a prohibited use in the 'Light Industry' zone.
Table 3 - Zoning Table (Table 3) of the Scheme sets out the permissibility of uses in the various zones delineated by the Scheme. The use class 'Public Worship' is a prohibited use in the 'Light Industry' zone. This use class is not defined in Appendix 1 - Definitions (Appendix 1), whereas, 'public worship - place of or place of public worship' has the following meaning assigned to it:
includes buildings used primarily for the religious activities of a church but does not include an institution for primary, secondary or higher education or a residential training institution;
The applicant argued that the uses and definitions as contained in TPS 40 are not really well placed to deal with the fairly complex practices of the Muslim faith and that to the extent there is any ambiguity, the Tribunal should decide the question in favour of the applicant. The applicant submitted that it is open to the Tribunal to inform the prohibition contained in Table 3 of the Scheme by reference to the definition contained in Appendix 1 for 'public worship - place of or place of public worship'. The applicant asserted that the premises is not a mosque and is not used primarily for religious activities of a church and as such, is not prohibited in the 'Light Industry' zone.
Table 3 of the scheme specifies the use class 'Public Worship', which is associated with an act of worship rather than defining a place of worship. In a planning context, the term 'Public Worship' has been understood to be a reference to congregational worship as distinct from private and family devotion: Canterbury Municipal Council v Moslem Alawy Society Ltd (1987) 162 CLR 145. Ms Rahman, a witness called on behalf of the applicant, explained that Jumu'ah salah is the Friday gathering for formal prayers and that it is a compulsory obligation on all Muslim males who have attained the age of puberty to attend a place where it is being held. Clearly, the characteristics of the activity held on Friday afternoons is akin to 'Public Worship' and the Tribunal has no jurisdiction to approve the Friday activity as it is a prohibited use within the 'Light Industry' zone.
However, if I am wrong by only referring to the term 'Public Worship' without reference to the definition contained in Appendix 1 for 'public worship - place of or place of public worship', then in considering the definition to inform the prohibition, I would agree with Mr McLeod's argument that the definition extends the normal meaning of the term to include other buildings used primarily for religious activities of a church. The use of the word 'includes' shows that the definition is not limiting in the sense that a 'place of public worship' is a building used primarily for religious activities of a church. The definition is inclusive, not exhaustive. Under the definition, a 'public worship - place of or place of public worship', the place is a place where congregational worship occurs, commonly termed a 'church' and may also include other buildings used primarily for the religious activities of a church. It should be said, the term 'church' while historically associated with Christian worship, also applies in Australia to a place of public worship of a non-Christian religion: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440; Macquarie Dictionary (4th ed, 2005), The Macquarie Library Pty Ltd, Sydney, page 268, definition 9.
The applicant submitted that the premises are not primarily used for religious activities of a church. Ms Rahman and Mr Anzar, witnesses called on behalf of the applicant, outlined for the Tribunal, the activities undertaken at the DAWA Centre. The activities identified included a book shop operating Monday to Thursday from 9 am to 1 pm and Friday from 2 pm to 4 pm; classes relating to Islamic studies, Islamic culture, Hadeeth lessons, Arabic lessons and religious studies for both children and adults; youth programmes; association meetings; and Jumu'ah salaah (Friday prayers). From the evidence of Mr Anzar, it was established that apart from the book shop which is located at the front of the premises the remaining area of the building is used for the other activities as outlined in this paragraph.
Ms Rahman told the Tribunal that 'the mere fact that Friday prayer is being held at the premises does not make that place a mosque, Islamically.' She pointed out that there are many places where prayer rooms are provided, such as shopping centres, the workplace and airports, and submitted that although Muslim's may congregate to say prayers in these rooms it does not make them mosques.
However, the respondent produced as evidence a document entitled 'Masjid Project - Appeal for help' for the Daawah Association of Western Australian Inc. In this document there are references to 'Masjid As‑Sunnah' operating at the DAWA Centre and the difficulties experienced in accommodating the large numbers of people praying at the Masjid and that there was a need to build a new purposely built Mashid with a community centre. Further, photographs were produced showing a sign on the front window of the premises, were the word 'Masjid' and a symbol appears and an arrow indicating the location of the Masjid. When asked about the word 'Masjid' Ms Rahman informed the Tribunal that the term 'means basically a place of prostration or a place to pray' and that the sign on the building indicates that 'there is a place here that you can pray'.
It would appear that the activities held at the premises fulfil many social, educational and religious needs of the local Muslim community, one of which is a recognised formal place for prayer. These premises play a dual role, which is no doubt due to 'Deen', meaning 'way of life' of observant Muslims, in that it provides community and educational services and a place where 'public worship' can be conducted.
However, the Tribunal considers on the evidence that the activities that occur on Fridays at the premises involve congregational worship and therefore use as a 'place of public worship' which is prohibited in the 'Light Industry' zone.
Parking issue
If I am wrong and the use of the premises for Friday prayers is permissible, then it is considered inappropriate, in the circumstance of this case to approve an increase in the occupancy to 100 persons. Witnesses were called and photographs produced to demonstrate that there is a real parking issue at the time when Friday prayers are being conducted. Even the applicant acknowledged that there was a parking problem and that parking initiatives had been implemented to reduce the problem.
Mr Polgaze, a senior planner called on behalf of the respondent, informed the Tribunal that in order to ameliorate some of the problems the City had erected 'no parking' signs along the southern side of Kent Street. He told the Tribunal that this had been effective in reducing some of the congestion in the area but had resulted in pushing the parking of vehicles into the adjoining residential area.
The parking remedies suggested by the applicant, which included the use of the City's administration building car park, located 400 metres from the premises; or the use of the Kent Street weir car park, located approximately 800 metres from the premises, were not agreed to by the City.
As a general principle of planning, any parking demand generated by a development should be provided on-site. However, TPS 40 does provide for joint use of parking facilities. It would appear that any joint use arrangement with the parking areas identified by the applicant is unlikely to be consensual. The Tribunal is not prepared to consider the joint use of parking facilities in this instance, particularly given that the owner of the land is not amenable to such arrangements and secondly, there is no evidence to satisfy that there will be no substantial conflict arising in the identified parking areas as a result of the joint arrangement.
The Tribunal considers that if there is discretion to approve the application, the proposal warrants refusal and condition 5 as imposed on Development Approval 16/8057 should remain, as there is insufficient parking provided on-site to satisfy the parking demand and the over flow of vehicles off-site is contrary to orderly and proper planning and the preservation of the amenity of the locality.
Should the s 214 direction be set aside?
Section 214 of the PD Act confers a discretion of the responsible authority as to whether or not to give a direction to the owner of land or any other person who undertook development in contravention of a town planning scheme, and if it decides to give a direction as to its terms. This includes development commenced, continued or carried out otherwise than in accordance with any condition imposed with respect to the development by the responsible authority pursuant to its powers under that scheme.
The Tribunal considers that in the interest of orderly and proper planning and given the impacts of the contravention of the Scheme on the affected locality, the application for review of the direction should be dismissed and the decision of the City to give the direction to the applicant should be affirmed.
Orders
For the above reasons, the Tribunal makes the following orders:
DR 284 of 2008
The application for review is dismissed and the decision of the respondent to impose condition 5 is affirmed.
DR 127 of 2009
The application for review is dismissed and the decision of the respondent refusing retrospective planning approval for an increase in occupancy from 20 people to 100 people for 'Community Purpose and Educational Establishment' at Unit 1A, 45 - 47 Kent Street, Cannington is affirmed.
DR 286 of 2008
1.The application for review relating to DR 286 of 2008 is dismissed and the decision of the City of Canning to give a direction to Daawah Association of Western Australian Inc dated 27 June 2008 under s 214(2) of the Planning and Development Act 2005 (WA) requiring that the use of the premises at Unit 1A, 45 - 47 Kent Street, Cannington is conducted at all times in accordance with Development Approval 16/8057 and in particular to stop and not recommence use of the premises for more than 20 persons at any time as provided for in condition 5 of Development Approval 16/8057 is affirmed and varied to required this to occur on and after 25 August 2009.
2.The stay of the direction referred to in Order 1 made on 13 March 2009 is lifted.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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