GARVEY and CITY OF WANNEROO
[2014] WASAT 73
•24 JUNE 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: GARVEY and CITY OF WANNEROO [2014] WASAT 73
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 24 JUNE 2014
FILE NO/S: DR 235 of 2013
BETWEEN: SIONG PIN GARVEY
Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Town planning - Development - Corner store - Takeaway food outlet and lunch bar - Probono advice - Foods to be pre-prepared and pre-packaged off-site - Preparation, sale and serving of food to customers on-site - Consistency of decision making - Coordination of approval processes within Council
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 1.9, cl 3.2, cl 6.6.4, Sch 1 Table 1
Food Act 2008 (WA), s 110
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31, s 60(2)
Result:
Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision:
The application for review was lodged against a decision of the City of Wanneroo to refuse an upgrade to existing kitchen facilities within the 'Corner Store' use, and for a change of use from 'Corner Store' to 'Corner Store and Takeaway Food Outlet or Lunch Bar'. The refusal, which prevents the applicant from preparing, serving and selling Chinese and Asian food onsite was in line with the current statutory provisions for a 'Corner Store' use.
In its reconsideration of the matter, the respondent approved the sale of Chinese and Asian food in sealed containers from the subject site providing the food was preprepared and prepackaged offsite. In its reconsideration the respondent also confirmed its refusal to the upgrade of existing kitchen facilities within the 'Corner Store' use.
In the view of the Tribunal, if the applicant still wished to pursue her intent to prepare and sell Chinese and Asian food from the subject site, she should attempt to do so, not by way of an application for approval to commence development as in this case, but by way of a detailed submission to Council to amend Schedule 3 of the City of Wanneroo Agreed Structure Plan No 21B - Carramar South/Tapping North Local Structure Plan to allow an expanded Additional Use from 'Corner Store' to 'Corner Store and Takeaway Food Outlet or Lunch Bar'. Such a submission could then be judged on its merits as to whether it was now appropriate in the current circumstances for the preparation, serving and sale of Chinese and Asian food onsite.
In view of the existing statutory provisions, the application for review was dismissed, and the decision of the respondent affirmed.
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Ms C Anderson (Acting as Agent)
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This matter involves an application, dated 2 July 2013, by Ms Siong Pin Garvey (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for review of a refusal by the City of Wanneroo (City, Council or respondent) on 6 June 2013 to grant planning approval for an upgrade to existing kitchen facilities and for a change of use from 'Corner Store' to 'Corner Store and Takeaway Food Outlet' or 'Lunch Bar' at No 1 (Lot 1) Balladong Loop, Carramar (subject site).
On the application before Member Ms M Connor on 5 September 2013, and pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal invited Council to reconsider its decision.
At its meeting on 15 October 2013, Council resolved to set aside its refusal of 6 June 2013 and:
1.Approves the application submitted by Siong Garvey for selling of hot/warmed Chinese and Asian [food] at the existing 'Corner Store' at Lot 1 (1) Balladong Loop, Carramar subject to the following conditions:
(a)No food shall be prepared onsite;
(b)The Chinese and Asian food shall be pre-prepared and pre-packaged offsite and sold in sealed containers;
2.Refuses the upgrade of the Kitchen Facilities at the existing 'Corner Store' at Lot 1 (1) Balladong Loop, Carramar for the following reason:
(a)Schedule 3 of Carramar South/Tapping North Local Structure Plan prevents the preparation of food on the premises.
On 2 April 2014, the Tribunal determined that, in this case, it was appropriate to refer the matter to a planning consultant under the Tribunal's pro bono advice scheme in order to present the best possible advice to the applicant in the context of a complex town planning framework.
On the application before Senior Member Mr P McNab on 11 April 2014, the matter of a pro bono referral was formalised, with specific dates set in May 2014 for additional submissions from the parties. However, at the time of the writing of these reasons (June 2014), the offer of pro bono advice had not been taken up by the applicant.
Subject site
The subject site is No 1 (Lot 1) Balladong Loop, Carramar and is located on the corner of Golf Links Drive. It is all that land comprised in Certificate of Title Volume 2585 Folio 497 on Deposited Plan 44568. There is an existing dwelling on the land with an attached 'Corner Store'.
Planning framework
The subject site is zoned Urban under the Metropolitan Region Scheme and Residential under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme). It has a density coding of R20 under the City of Wanneroo Agreed Structure Plan No 21B Carramar South/Tapping North (ASP 21B).
The subject site is subject to an Additional Use of 'Corner Store' listed under Schedule 3 of ASP 21B which states:
Corner store excluding the preparation, sale and serving of food to customers in a form ready to be eaten without further preparation primarily off the premises.
Respondent's position
The position of the respondent is outlined in its statement of issues, facts and contentions (SIFC) dated 20 December 2013. In summary, the respondent contends:
(a)As all three elements of preparation, sale and serving of Asian and Chinese food are proposed, the activity falls within the definition of 'Takeaway Food Outlet' or 'Lunch Bar' use, both of which are 'X' uses in the Residential zone under Table 1 (Zoning Table of DPS 2), meaning the use is not capable of being approved.
(b)In accordance with cl 6.6.4 of DPS 2, the respondent shall refuse to approve any application for planning approval which involves an 'X' use, except as otherwise specifically provided by the Scheme. As there are no other provisions within DPS 2 that specifically provide for a 'Takeaway Food Outlet' or 'Lunch Bar' to operate on the land, the respondent does not have discretion to approve the proposed commercial standard kitchen on the subject site.
(c)Clause 3.2.4 of DPS 2 allows for more than one use class to be approved on a site. The proposed activity falls within the separate use class of 'Takeaway Food Outlet' or 'Lunch Bar', and not within the 'Corner Store' use class. As the proposed activity falls within a use class that is an 'X' use under DPS 2, it cannot be approved.
(d)As all three elements - being the preparation, sale and serving of Asian and Chinese food - are proposed, the activity does not comply with the Additional Use provisions listed against the land in Schedule 3 of ASP 21B, which specifically state that the preparation, sale and serving of food to customers in a form ready to be eaten is not permitted.
(e)The installation of a commercial standard kitchen enables food to be prepared at the premises, thereby allowing the subject site to operate as a 'Lunch Bar' or 'Takeaway Food Outlet'. As these are 'X' use classes under DPS 2, the installation of the kitchen cannot be approved.
(f)In the light of (a) to (e) above, the proposed activity is not permitted until or unless Schedule 3 of ASP 21B is amended.
Applicant's position
The position of the applicant is outlined in her written submission of 16 January 2014. The applicant argues:
(a)The approval granted by Council on 15 October 2013 to allow the sale of hot/warmed Chinese and Asian food is welcomed.
(b)The refusal by Council on 15 October 2013 to not allow the upgrade to the kitchen facilities will adversely affect the applicant.
(c)The respondent, on numerous occasions, has stated that planning consent was not required to upgrade the existing kitchen, and all that was necessary was to lodge an application for a building licence.
(d)The existing kitchen is lawful and was incorporated into approved building plans. It has always been used as a kitchen and was constructed for the purpose of hygiene preservation and quality of foodstuffs requiring temperature control (warm, hot, chilled or frozen), cleaning facilities, pest control, cleanup of spillages and maintaining cleanliness.
(e)The purpose of ASP 21B's notation of 'Corner Store' was to prevent the building from being converted into a restaurant, and thereby adversely affecting the amenity of the immediate locality.
(f)The reason for upgrading the existing kitchen was to replace existing wall tiles and cracked or worn floor tiles. Also, the current old electric ovens with two on top hot plates would be replaced with one small stainless steel two burner natural gas stove.
(g)The applicant is anxious to use gas as an alternative to electricity as the premises are serviced with gas. It seems unjust that one cannot use a gas stove in an existing kitchen as, in the event of a power failure, foodstuffs can be kept warm or hot with the availability of either or both fuels.
(h)The applicant seeks planning consent to relocate the toilet facility outside the kitchen area but to retain hand washing within the kitchen for hygiene purposes.
(i)The emission of fumes via fume outlets to the outside atmosphere would be well over 6 metres from the street and the two neighbours. As noise is not a factor, the amenity would be preserved.
(j)The existing kitchen is obviously for commercial purposes but, if not allowed to be upgraded, will be used for domestic cooking as the adjoining house is owner occupied.
(k) A loss of viability of the 'Corner Store' may directly cause closure and, as a result, could lead to vandalism and loss of amenity in the locality.
(l)The refusal by Council on 15 October 2013 to not allow the upgrade of kitchen facilities is an absurdity as the respondent requires the applicant to pay annual fees ($266 or a penalty of $10,000 in default) pursuant to the Food Act 2008 (WA) to operate as a certified fast food/takeaway outlet.
(m)The applicant intends to prepare Chinese and Asian foodstuffs, heated and ready for sale in sealed containers from a nearby commercial kitchen. These will be delivered to the 'Corner Store' by motor vehicle within two minutes.
Planning issues
The principal planning issue is: do the existing statutory provisions relevant to the subject site allow for a change of use from 'Corner Store' to 'Corner Store and Takeaway Food Outlet or Lunch Bar' without amendment to ASP 21B?
Assessment of the proposals
Legislative provisions
City of Wanneroo District Planning Scheme No 2
The most relevant provisions of DPS 2 to this matter are contained within the following clauses:
3.2ZONING TABLE
3.2.1The Zoning Table (hereinafter called Table 1) indicates … the permissibility of use classes within the various zones. …
3.2.2The symbols used in Table 1 have the following meanings:
…
'A' = A use class that is not permitted unless the Council has exercised its discretion and has granted planning approval after giving notice in accordance with Clause 6.7;
'X' = A use class that is not permitted except where provision is made specifically for Council to approve an otherwise prohibited use.
…
3.2.4 Where a building or land is used, or a proposed building is designed, for more than one use, it shall be regarded for the purposes of the Scheme as being used or designed partially for each of those uses.
Under Table 1, a 'Corner Store' in the Residential zone has an 'A' symbol assigned, whereas a 'Takeaway Food Outlet' and a 'Lunch Bar' have an 'X' symbol assigned in the Residential zone.
Under cl 1.9 of Sch 1 'Interpretations' of DPS 2, the following definitions occur:
…
2.LANDUSE DEFINITIONS
…
corner store: means any land and building comprising a dwelling house attached to which is a shop not exceeding 100sq.m gross floor area offering only convenience goods for sale, operated as an additional use by a permanent resident of the dwelling.
…
lunch bar:means premises used as a take-away food outlet but within the hours of 6.00 am to 4.00 pm only.
…
take-away food outlet: means premises used for the preparation, sale and serving of food to customers in a form ready to be eaten without further preparation, primarily off the premises, but excludes Drive Through Food Outlets.
City of Wanneroo Agreed Structure Plan No 21B Carramar South/Tapping North Local Structure Plan
The clauses of ASP 21B most relevant to this matter are:
5.PROVISIONS
5.1Residential Zone
The permissibility of uses is to be in accordance with the provisions of the Residential Zone as specified under the Scheme. …
Objective: To encourage residential development of a high standard and the creation of associated amenities.
…
5.6Additional Use (Corner Store)
In addition to any uses permissible in the Residential Zone wherein the land is situated, the land specified in Schedule 3 may be used for the specified use(s) that are listed in addition to any uses permissible in the zone in which the land is situated subject to the conditions set out in Schedule 3 with respect to this land.
Schedule 3 – Additional Uses
Street/Locality
Particulars of Land
Additional Uses Permitted
Corner Golf Links Drive and Balladong Loop, Carramar
Lot 485
Corner store excluding the preparation, sale and serving of food to customers in a form ready to be eaten without further preparation primarily off the premises
From the foregoing statutory provisions it is clear that, although a 'Corner Store' is not automatically permitted in the Residential zone, it can be achieved by way of Council exercising its discretionary powers. But even so, a 'Corner Store' is restricted to selling convenience goods only and this has been made clear in the case of the subject site by way of specific provisions to that effect in Schedule 3 of ASP 21B.
Again, both a 'Lunch Bar' and a 'Takeaway Food Outlet' are uses that are not permitted in a Residential zone, except where specific provision is made by Council to approve an otherwise prohibited use.
Background to proposal
On 1 July 1999, the Council granted development approval (DA0267) for a 'Corner Store' and a Single House on the subject site. The 'Corner Store' included a sink and a toilet, and there were specific provisions under condition 11 of the approval to the effect that:
The preparation, sale and serving of food in a form ready to be eaten without further preparation primarily off the premises is not permitted.
On 12 August 2001, ASP 21B was adopted by Council and the Additional Use of ' Corner Store' was specified in Schedule 3, as outlined in [ 15 ] above.
On 4 September 2012, the applicant lodged an 'Application for Approval to Commence Development' (DA 2012/945) with the City requesting approval for the following $15,000 (estimated) development:
To carry on the existing business plus the addition of being able to sell freshly prepared fast foods, by -
(a)Utilising the existing premises as both a corner store and (additionally) as a lunch bar;
(b)Upgrading kitchen facilities to the City's Health Department requirements, to enable the preparation of fast foods on the premises; [and]
(c)Fresh foodstuffs to include the preparation and sale of freshly prepared Chinese takeaways.
On 6 June 2013, the respondent refused the development application for the following reason:
As per Schedule 3 of Agreed Structure Plan No 21B Carramar South/Tapping North (ASP 21B) a 'Corner Store' is an additional use permitted at the corner of Golf Links Drive and Carramar Loop, Carramar. This use is permitted provided it does not include'the preparation, sale and serving of food to customers in a form ready to be eaten without further preparation primarily off the premises'. Based on the information provided, the proposed activities and operation of your proposal does not conform with this requirement of ASP 21B and therefore your proposal falls outside the definition of the additional use 'Corner Store'. As a result, the proposal would be contrary to the interest of proper and orderly planning of the locality and therefore your application for a change of use has been refused.
As a result of this decision, the applicant lodged an application for review (DR 235 of 2013) with the Tribunal on 2 July 2013.
On 5 September 2013 the respondent was invited to reconsider its decision as outlined in [21] above. In doing so, the respondent had before it a submission from the applicant, dated 11 September 2013, requesting:
1.The City on its own motion delete from Schedule 3 my property at its convenience;
2.Pending the said deletion only the Scheme Text be enforced;
3.Planning Consent be [granted] to allow upgrading of the Commercial Kitchen as per the Plan.
4.I be otherwise be permitted to sell hot/warm Chinese and Asian foods prepared on other premises and sold in sealed containers.
On 15 October 2013, the respondent reconsidered its refusal decision of 6 June 2013, having regard to [23] above. The effect of this reconsideration was to allow the sale of preprepared and prepackaged Chinese and Asian food, providing it was prepared offsite, but to refuse the upgrade of the onsite kitchen facilities, as an approval could have allowed the onsite preparation of these foods.
At the directions hearings on 1 November 2013 and 29 November 2013, the applicant advised that she was aggrieved by the respondent's decision of 15 October 2013 and that she wanted to install the kitchen facilities to enable the preparation of food on the subject site in accordance with the original application (DA 2012/945) submitted to the respondent on 4 September 2012.
On 20 December 2013, the respondent lodged its SIFC with the Tribunal, and this was responded to by the applicant on 16 January 2014. A further document dated 30 January 2014 and titled 'Response to Applicant's Case Dated 16 January 2014' was lodged by the respondent with the Tribunal on 3 February 2014.
On the application heard before Senior Member PMcNab on 11 April 2014, it was determined, amongst other things, that the matter be referred to a decision on the documents as provided for under s 60(2) of the SAT Act.
What is clear from the foregoing is that, based on its reconsideration of the matter on 15 October 2013 by allowing the Chinese and Asian food to be preprepared and prepackaged offsite, and then transported to the subject site for warming and heating on existing facilities, the definition of 'Corner Store' would not be breached.
Again, the respondent's refusal to allow the upgrade of kitchen facilities to allow the onsite preparation of Chinese and Asian food would ensure that the Additional Use provision of 'Corner Store' on the subject site would not be breached.
The matter of consistency of decision-making
Based on the information before the Tribunal, it is clear that the respondent has maintained a consistent approach since 1999 with respect to its decision-making on the subject site; that is to say, it has not allowed the preparation of food in a form ready to be served and sold.
However, what is inconsistent is information before the Tribunal which shows the issuing of a Certificate of Registration (Food Business) by the Coordinator Health Services at the City on 7 January 2014, of an approval for the applicant to operate as a Fast Food/Takeaway outlet from the subject site. The Certificate was issued under s 110 of the Food Act 2008 (WA).
In its 'Response to the Applicant's Case' dated 16 January 2014, the respondent argues on this point:
In paragraph 11 the applicant advises that pursuant to the Food Act 2008, a certification of Registration of 'Fast Food/Takeaway' Business was issued by the Respondent. This approval was issued under separate legislation, being the Food Act 2008, and does not relate to the granting of a development approval which is issued under the Planning and Development Act 2005.
Although the respondent is technically correct on this point, it is understandable why the applicant, at (1) of [10] above, and any third party examining this matter, would be justifiably questioning the coordination of approval processes within Council across its divisions.
Again,as argued by the applicant at (c) of [10] above, she advises that on numerous occasions the advice given from Council was that planning consent was not required to upgrade the existing kitchen, and all that was required was to lodge an application for a building licence.
With respect to this issue, there is no evidence before the Tribunal to examine but, if correct, there has clearly been a need for either the applicant to have sought the advice or to have been advised by Council of the need for both a planning approval and any subsequent approvals, licences (including a building licence) or permits.
The matter of a way forward
Based on the reconsideration of the respondent on 15 October 2013 to allow Chinese and Asian food to be preprepared and pre-packaged offsite and then sold by the applicant from the subject site, and her acceptance of this, she should now determine whether such an arrangement, of itself, would be viable over time.
If the applicant wishes to pursue the matter of the on site preparation of Chinese and Asian food, she will need to lodge a submission to Council to amend Schedule 3 of ASP 21B to allow the premises to also operate as a 'Lunch Bar' or 'Takeaway Food Outlet'. If such an amendment was successful, an application would then need to be made to upgrade the kitchen facilities to give effect to any amendment to Schedule 3.
Conclusion
The application for review results from a refusal by the respondent to grant planning approval for an upgrade to existing kitchen facilities which would have provided the opportunity for the applicant to prepare Chinese and Asian food for sale direct from the subject site. The refusal was also in line with the current statutory provisions for a 'Corner Store' use on the subject site which excludes the preparation, sale and serving of food to customers in a form ready to be eaten without further preparation, primarily off the premises.
What the respondent has done in its reconsideration of the matter is to allow Chinese and Asian food to be sold from the 'Corner Store' operation providing these foods are pre-prepared and pre-packaged offsite.
In the view of the Tribunal, if the applicant wishes to pursue a change of use from 'Corner Store' to 'Corner Store and Takeaway Food Outlet or Lunch Bar' she should firstly apply to Council for an amendment to Schedule 3 of ASP 21B. Such a submission could then be judged on the merits of the case as to whether it was now appropriate for the preparation and sale of Chinese and Asian food from the subject site.
Having regard to the above, and the existing statutory provisions relevant to the subject site, the application for review is dismissed and the decision of the respondent affirmed.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
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