Finlayson and City Of Joondalup - [2009] WASAT 47

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: FINLAYSON and CITY OF JOONDALUP [2009] WASAT 47

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 12 MARCH 2009

DELIVERED : 18 MARCH 2009

FILE NO/S: DR 396 of 2008

BETWEEN: GRAEME FINLAYSON
Applicant
AND
CITY OF JOONDALUP
Respondent

Catchwords:

Town planning Development application Home business Mobile repair of doors, windows and flyscreens and mobile repair and installation of locks and pet doors Administration, storage and some repairs on site More than 95% of repairs take place at customers' premises Less than 5% of repairs take place in shed at rear of site using power tools, including angle grinder, drill and drop saw, and non-power tools Two service vehicles with business signage park at front of site between 7.30 am and 8.30 am Monday to Friday One additional service vehicle with business signage garaged on site Total of four nonresident employees including two servicemen and two administrative staff job sharing at different times Low density residential area Proximity to primary school Number of employees Floor area Location Whether proposed development satisfies definition of 'Home Business Category 3' under local planning scheme Whether proposed development complies with Home Business policy

Legislation:

City of Joondalup Town Planning Scheme No 2, cl 3.2.2, cl 3.4, cl 6.7, Sch 1
Planning and Development Act 2005 (WA)

Result:

Development application refused

Category: B

Representation:

Counsel:

Applicant: Mr A Stewart (Agent)
Respondent: Mr S Allerding (Agent)

Solicitors:

Applicant: Greg Rowe & Associates (Town Planners)
Respondent: Allerding & Associates (Town Planners)

Case(s) referred to in decision(s):

Fryer and City of Subiaco [2006] WASAT 199

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned a development application to use part of a residential property as a home business involving administration, storage of materials and some repairs as part of a mobile repair business of doors, windows, flyscreens, locks and pet doors. The locality comprised single houses and also included a primary school a short distance from the site.
The use involved the location of two large commercial service vehicles with extensive business signage at the front of the site between 7.30 am and 8.30 am from Monday to Friday. A third commercial service vehicle with extensive business signage would be garaged at the site.
The use also involved the carrying out of repairs for an average of four hours a week in a rear shed using power tools, including an angle grinder, drill and drop saw (up to one hour a week), and non‑power tools.
The Tribunal determined that the proposed development did not satisfy the definition of 'Home Business Category 3' under the local planning scheme. In particular, the use would have an adverse effect on the residential amenity and character of the locality, because the location of the two commercial vehicles between 7.30 am and 8.30 am each working day would create an impression of substantial commercial enterprise, the noise from repairs was not consistent with reasonable amenity expectations, and the prospect of the vehicles reversing across the footpath at the same time when children are likely to be walking or cycling to school was not acceptable. The proposal also exceeded the maximum number of employees and the maximum floor area contemplated for a home business and the discretion to exceed these standards should not be exercised having regard to the adverse impacts of the development.
The development application was refused.

Introduction

Since late 1990, Mr Graeme Finlayson has operated a mobile repair business trading as 'Best Door Doctor' from his house at No 40 Dalmain Street, Kingsley (site). The business involves the repair of doors, windows and flyscreens, and the repair and installation of locks and pet doors, at customers' premises throughout the Perth metropolitan area. The site has been used for administration, storage and some repairs.
The site and surrounding area is zoned 'Residential' and has a residential density coding of 'R20' under the City of Joondalup Town Planning Scheme No 2 (TPS 2 or Scheme). The locality comprises exclusively single houses and the Dalmain Public School a short distance to the west of the site.
Until late 2007 or early 2008, neither Mr Finlayson nor the City of Joondalup (City or Council) received any complaint in relation to the operation of the business at the site. At that time, a nearby resident complained about the business, which ultimately resulted in the lodgement of a development application with the Council for approval of the use of the site as 'Home Business Category 3' under TPS 2, and the commencement of these proceedings for review of the Council's refusal or deemed refusal of the application. [Mr Finlayson contended that the refusal of the development application by an officer of the City was not authorised by delegation. However, it is unnecessary to address this contention, because, even if the refusal was invalid, Mr Finlayson would have a right to seek review of the deemed refusal of the development application.]
The scale of the business changed substantially between its commencement in late 1990 and the complaint in late 2007 or early 2008. The business commenced subject to a condition of planning approval imposed by the City that only a member of Mr Finlayson's family, permanently resident at the site, could be employed in the business. By 2008, the business had expanded to the point where, in addition to himself, it employed two full‑time servicemen and Mr Finlayson was thinking about hiring more employees. The business had four fully equipped service vehicles, including three vans and a ute, each with extensive signage advertising the business. The two servicemen drove a van each and Mr Finlayson drove the ute.
However, in the end, Mr Finlayson did not employ another serviceman to drive the fourth service vehicle, because it was involved in a motor vehicle collision and 'written off' in November 2008, and the amount of work for the business has reduced dramatically, by up to 50%, as a result of recent economic circumstances. Nevertheless, the existing servicemen are booked up about three weeks in advance.

Proposed development

As noted earlier, Mr Finlayson applied to the City for approval for the use of the site as 'Home Business Category 3' under TPS 2.
Home Business Category 3 is the most intensive home business use contemplated by the Scheme. The other two home business uses contemplated by the Scheme are Category 1 and Category 2.
Home Business Category 3 is a use class that is not permitted in the Residential zone unless the Council has exercised its discretion and has granted development approval after giving special notice in accordance with cl 6.7 of the Scheme: cl 3.2.2 of TPS 2.
In contrast, in the Residential zone, Home Business Category 1 is a use class that is permitted, but may be subject to conditions. In the zone, Home Business Category 2 is a use class that is not permitted, but to which the Council may grant its approval without giving special notice in accordance with cl 6.7 of the Scheme, although it may give special notice if it considers that it would be appropriate to consult with the public generally or with the owners or occupiers of properties adjoining or in the vicinity of the site.
The City gave special notice of the development application in accordance with cl 6.7 of the Scheme and this resulted in five objections from residents located in close proximity to the site.
The proposed development would occupy 68.6 square metres of floor space, comprising two bedrooms in the house, each with an area of 12.3 square metres, and a rear shed with an area of 41.6 square metres. Mr Finlayson proposes to park his personal vehicle and the ute service vehicle in the double garage at the front of the site. In addition to Mr Finlayson, the business would have four other employees, namely, two servicemen and two administrative staff. The administrative staff would job share, one being at the site between 8 am and 12.30 pm and the other between 12.30 pm and 5 pm, Monday to Friday.
It is proposed that the two servicemen would arrive at the site each day from Monday to Friday at 7.30 am in their service vehicles, pick up their daily running sheet and necessary spare parts, and depart for the day's work by 8.30 am. While at the site, the service vehicles driven by the two servicemen would be parked in two of three car bays located in the driveway between Dalmain Street and the double garage at the front of the site. The administrative employee would occupy the third car bay from 8 am. The two servicemen would generally not return to the site with their service vehicles until the following weekday at 7.30 am. On rare occasions, for example, when working in the northern suburbs and having forgotten something at the site, a serviceman may return to the site in a service vehicle during the working day.
Mr Finlayson estimated that more than 95% of repairs take place at customers' premises. However, occasional repairs take place at the site. In the proposed development, this would occur in the rear shed. Mr Finlayson explained that it is very difficult to undertake certain mesh work on flyscreens at customers' premises. Consequently, Mr Finlayson rewires about five or six doors a week with tough mesh at the site. Occasionally, he also moves locks for pool gates and makes pet doors at the site. In carrying out work at the site, Mr Finlayson uses power tools, including an angle grinder, drill and drop saw, as well as non-power tools. He estimated that, on average, this type of work takes place for about four hours a week, of which the drop saw is used no more than one hour a week.
Generally, customers do not come to the site. The only customers who are likely to attend the site are local people who occasionally bring doors and flyscreens in for repair so as to save the transport cost. There are no regular deliveries to the site, only random delivery of some parts. Generally, parts are picked up by the servicemen from suppliers' premises.
Mr Finlayson suggested that the Tribunal should grant a time limited development approval for 12 months to enable him to establish that the business is able to operate without any adverse impact on the amenity or character of the area.

Issues for determination

The following two principal issues arise for determination in this review:
1)Whether the proposed development satisfies the definition of Home Business Category 3 under TPS 2.
2)Whether the proposed development complies with the requirements of Policy 7‑9 ‑ Home Business (Home Business Policy) and, if it does not comply, whether these requirements should be departed from in the circumstances of the case.
The Council also raised other issues. However, ultimately, each of the other matters is addressed under the two issues identified above. The Tribunal will address each of these issues in turn.

Does the proposed development satisfy the definition of Home Business Category 3?

Home Business Category 3 is defined in Sch 1 of the Scheme to mean:
An occupation or professional practice undertaken for the purpose of commercial gain; and carried on in a dwelling or on land around a dwelling by a resident of the dwelling which:
(a)does not entail the retail sale, outdoor display or hire of goods of any nature;
(b)does not cause injury to or prejudicially affect the amenity of the neighbourhood;
(c)does not detract from the residential appearance of the dwelling house or domestic outbuilding;
(d)entails employment of a maximum of 2 persons not members of the occupier's household. Council may approve a greater number of employees, not exceeding 4 persons, subject to community consultation;
(e)occupies an area not exceeding 50 square metres. Council may approve, subject to community consultation, an area of up to 100 square metres, or one-third of the floor area of the dwelling whichever is the lesser;
(f)displays a sign describing the nature of the approved home occupation. The sign must not exceed 0.2 square metres, and a maximum 2 metres high;
(g)will not result in the requirement for a greater number of parking facilities than those provided on the site so as to cause an unacceptable inconvenience for adjoining residents and road users;
(h)will not result in a substantial increase in the amount of vehicular traffic in the vicinity;
(i)does not involve the servicing or repair for gain of motor vehicles; and
(j)does not entail the presence, parking and garaging of a vehicle of more than 3.5 tonnes tare weight.
The Tribunal had the benefit of expert planning evidence from Mr Paul Cunningham, called on behalf of Mr Finlayson, and Mr John Meggitt, called on behalf of the City. The planning experts disagreed in relation to whether the proposed development satisfies para (b), para (c), para (d) and para (e) of the definition.
In relation to para (b) and para (c) of the definition, Mr Cunningham did not consider that the nature and scale of the proposed development would have an adverse effect on the residential amenity or character of the area, whereas Mr Meggitt considered that it would.
Mr Cunningham said that the site would retain its predominant use as a residential dwelling, there is adequate parking on site, only limited repair work, and no manufacturing, would occur on site, and the business would not cause any emissions or store any harmful chemicals. In contrast, Mr Meggitt considered that the arrival of commercial vehicles with substantial business signage each morning of the working week would result in the site having an appearance 'that a commercial activity is going on'. He considered that this is contrary to the amenity and character of the low‑density residential area. Mr Meggitt also considered that the repair work undertaken at the site would have an unacceptable impact on residential amenity, because it would occur regularly, some of the machinery is not characteristic of a domestic workshop, and the location of the rear shed is close to the rear yard and dwelling of an adjoining residential property.
The Tribunal considers that the proposed development would cause injury to or prejudicially affect the amenity of the neighbourhood and would detract from the residential appearance of the dwelling house.
The presence of two large commercial service vehicles with extensive business signage at the front of the site each working day from 7.30 am to 8.30 am would create an impression of a substantial commercial enterprise located in an otherwise wholly low‑density residential area. While only one hour, the period from 7.30 am to 8.30 am is relatively busy in terms of traffic and pedestrian movements, partly because it coincides with the first hour of the school drop off period. The impression of a substantial commercial enterprise would be compounded by the arrival of a further employee's vehicle at 8 am each working day and the location on the site of a third service vehicle with extensive business signage. Although the third vehicle is parked inside the garage, it would be used from time to time and may well be parked in one of the three front car bays while the other two service vehicles are out on the road.
Furthermore, while repairs would only take place at the site for an average of four hours a week, the Tribunal accepts Mr Meggitt's characterisation that this activity is 'intrinsic to the business'. As Mr Finlayson said, it is very difficult to do certain work at customers' premises. While this work constitutes less than 5% of repairs carried out by the business, it is, as Mr Meggitt also said, a 'core part' of the business, because the business requires this facility.
One of the objections to the proposed development, although from a property across the road, is that there is 'a fair amount of noise from the [site], grinders and electric cutters of some sort'. Mr Cunningham conceded that he was not aware of the range of power tools used in the business when he prepared his statement of evidence, and agreed with Mr Steven Allerding, who represented the City, that the angle grinder, drill and drop saw have the capacity to create offensive noise.
The Tribunal finds that, because of its regular nature, location close to the common boundary with single residential properties, and the use of power tools such as an angle grinder, drill and drop saw, the repair work would cause injury to or prejudicially affect the amenity of the neighbourhood. The regularity and nature of noise from these activities is not consistent with the reasonable amenity expectations of residents in a low‑density residential area.
Finally, the Tribunal is concerned about the prospect of the two commercial vans reversing from the site across the footpath and onto Dalmain Road at the same time when schoolchildren are likely to be walking or cycling to the nearby school. Mr Finlayson relied on a witness statement by Mr Benham Bordbar, a traffic engineer, who was not required by the City for cross‑examination. Mr Bordbar referred to the school, but did not expressly address the issue of service vehicles reversing across the footpath. His only reference to pedestrians was in general terms and his only express opinion in relation to the school was that the traffic from the site would not have any bearing on the operation of the school and school traffic.
As the Tribunal said in Fryer and City of Subiaco [2006] WASAT 199, a case which involved a proposal for a single vehicle to reverse up a slope and across a footpath proximate to a school, 'the Tribunal should, in relation to matters of public health and safety, adopt a precautionary approach'. While in this case the vehicles would not reverse up a slope, they are large commercial vehicles, and there are two of them. It also appears that visibility to the east would be partially obscured for the eastern vehicle by a tree in the front setback area of the site, and for the western vehicle by the location of the eastern vehicle.
Clause 3.4 of TPS 2 states that the Residential zone is intended primarily for residential development in an environment 'where high standards of amenity and safety predominate to ensure the health and welfare of the population'. The prospect of two commercial vans reversing across a footpath in close proximity to a primary school at around 8.30 am would cause injury to or prejudicially affect the amenity of the neighbourhood, is contrary to the intent of the zoning, and is unacceptable. While it is true that large domestic vehicles reverse out of driveways in proximity to the school, the difference in this case is that the vehicles are large commercial vehicles that reverse from the site, not because the drivers reside at the site, but because they attend the site each morning as part of the business.
In relation to para (d) of the definition of Home Business Category 3, the proposed development involves the employment of four people who are not members of Mr Finlayson's household. Mr Cunningham considered that the discretion to allow four employees, rather than two, should be exercised in the circumstances of this case, because the working hours of the employees at the site would be similar to normal working hours of one or two full‑time employees working in a home business.
However, the Tribunal does not consider that discretion should be exercised in the circumstances of this case to enable the employment of more than two people, because, as found earlier, the location of two large commercial service vehicles with extensive business signage would create an impression of a substantial commercial enterprise, which would be compounded by the third employee's vehicle. While the location of the three employees' vehicles would be only for a limited period, the period is important because it coincides with relatively significant traffic and movement generally in the locality.

In relation to para (e) of the definition of Home Business Category 3, the proposed development would occupy 16.8 square metres, or approximately one‑third, greater area than the 50 square metres specified in the Scheme. Mr Cunningham characterised this exceedance as being 'slight', and considered that it would not adversely impact on the residential nature of the site or the amenity of the locality.
However, an exceedance of one‑third cannot be characterised as 'slight'. Furthermore, as Mr Meggitt said, the issue of floor space cannot be divorced from other considerations, such as appearance and noise. The development would create an impression of a substantial commercial enterprise in a low‑density residential area. Furthermore, about two‑thirds of the home business floor space would be located in the rear shed. As noted earlier, the repair work would be carried out in this building. The use of this building for repair work would have an adverse impact on the acoustic amenity of adjoining and adjacent residential properties, given the proximity of the shed to those properties.
In consequence, the Tribunal does not consider that the discretion to permit the exceedance of 50 square metres floor area should be exercised in the circumstances of this case.
It follows that the proposed development does not satisfy the definition of Home Business Category 3.

Does the proposed development comply with the Home Business Policy?

The aims of the Home Business Policy include the following:
…
(b)To protect the amenity and character of residential areas by ensuring that potential impacts associated with home businesses such as noise … are minimised and adequately controlled.
…
(d)To provide a measure of the extent of the home business to ensure that it does not dominate the use of the land nor be so large or intensive that it changes the residential character of the neighbourhood.
For reasons discussed earlier, the convergence of two large commercial service vehicles with extensive business signage each working day and the noise that would be generated from repairs at the site mean that the business would not be operated in a discreet manner and that the use would be perceived as commercial. The development does not ensure that noise impacts associated with the business are adequately controlled. The presence of large vehicles and the noise from repairs would change the residential character of the neighbourhood.
Finally, the Home Business Policy contains a policy provision in relation to Category 3, but not Category 1 or Category 2, home businesses, that 'the preferred location of the proposal is where it abuts or is directly opposite one of the commercial centres in the City of Joondalup Centres Strategy'.
Mr Cunningham observed, correctly, that this policy provision is not mandatory. However, Mr Cunningham and Mr Meggitt agreed that the planning purpose served by this provision is to protect residential amenity and to co‑locate the most intensive home businesses contemplated by the Scheme with proximate commercial areas. For reasons discussed earlier, the proposed development would have a detrimental impact on residential amenity and character. It would be inappropriate to locate a commercial use of the scale proposed in the development application in a core residential area.
Mr Cunningham referred to the Council's approval of a Home Business Category 3 use at No 6 Meyer Court, Woodvale, which is also a core residential area. This use was originally approved in 2002 and has received annual approvals by the Council since. However, the use approved at No 6 Meyer Court, Woodvale is quite different to the proposed development. In contrast to the proposed development, the use at No 6 Meyer Court, Woodvale is purely administrative, has only one employee at the site, except once a week, operates from 9 am to 4.30 pm Monday to Friday, and occupies less than 45 square metres of floor space. Furthermore, in contrast to the proposed development, the use at No 6 Meyer Court, Woodvale did not result in any resident objections.
It follows that the proposed development is inconsistent with the Home Business Policy. There is no cogent reason why the provisions of this Policy should be departed from in the circumstances of this case.

Conclusion

The proposed development does not satisfy the definition of Home Business Category 3 and does not comply with the requirements of the Home Business Policy. Consequently, the proposed development warrants refusal. A time limited consent is not appropriate in circumstances where the proposal does not satisfy the definition and is judged by the Tribunal to have unacceptable amenity consequences.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent to refuse development approval for a Home Business Category 3 at No 40 Dalmain Street, Kingsley is affirmed.

I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER