GODENZIE and CITY OF GERALDTON­GREENOUGH

Case •

[2010] WASAT 107

•

28 JULY 2010

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   GODENZIE and CITY OF GERALDTON­GREENOUGH [2010] WASAT 107

MEMBER:   MR J JORDAN (MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   28 JULY 2010

FILE NO/S:   DR 27 of 2010

BETWEEN:   RAYMOND ADREN GODENZIE

JODI MARIE GODENZIE
Applicants

AND

CITY OF GERALDTON­GREENOUGH
Respondent

Catchwords:

Town planning ­ Development ­ Rural­Residential zoned lot - Parking of two commercial vehicles each with a trailer - Conditions of development approval ­ Condition listing equipment used in earth moving business - Condition requiring equipment be stored on vehicles and trailers at all times ­ Condition requiring there be no storage of parts, equipment, machinery, tools or materials connected to the business on any part of the lot ­ Condition requiring no loading or unloading of the plant or equipment from commercial vehicles on the site ­ Size of lot ­ Other uses on the lot ­ Conditions to address impact of use ­ Characterisation of the use - Objectives for the zone ­ Impact on local amenity ­ Policy on vehicle parking 

Legislation:

City of Geraldton­Greenough Local Planning Scheme No 5, cl 1.1.2, cl 4.2, cl 4.4.2, cl 5.14, Sch 1, Table 1
City of Geraldton­Greenough Town Planning Scheme No 4
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)

Result:

Application for review is dismissed
The application for review of condition 10 and condition 16 allowed in part

Category:    B

Representation:

Counsel:

Applicants:     Self-represented

Respondent:     Ms M Browne (Representative)

Solicitors:

Applicants:     Self-represented

Respondent:     City of Geraldton-Greenough

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

Health Resorts Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

  1. This matter involved an application for review of conditions imposed by the City of Geraldton­Greenough on a planning approval for the parking on a rural­residential zone lot of two commercial vehicles (trucks) with trailers, and the storage on the trucks and trailers of plant and equipment used in an earth­moving business.

  2. The equipment used in the business to be kept on­site included two skid steer loaders, two excavators and a mini­loader.  The conditions in dispute required that the equipment be stored on the permitted trucks or trailers at all times and that the loading and unloading of the equipment not take place within the boundaries of the lot.

  3. The Tribunal found that the proposed storage of the plant and equipment on the site would be a use different from the parking of commercial vehicles.  This additional use of the site as a depot for an earthmoving business would be inconsistent with the planning objectives for the rural­residential zone under the local planning scheme.

  4. The Tribunal also found the proposed use would have an adverse impact on the amenity of the locality and its residents because it would be inconsistent with the desired future rural­residential character of the locality.  This additional impact on the locality would be inconsistent with the objectives of the City of Geraldton­Greenough's policy for the parking of commercial vehicles.

  5. The Tribunal did find, however, that a commercial vehicle with the plant and equipment stored on it could remain on the site if not required that day and the equipment could be unloaded from one truck and trailer, and loaded on the other truck and trailer if this occurred during normal working hours.  The conditions of the approval under review were amended to allow this.

Introduction

  1. These proceedings involve an application brought by Mr Raymond Godenzie and Mrs Jodi Godenzie (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), against conditions imposed by the City of Geraldton­Greenough (City or Council) on the conditional development approval granted for the parking of two commercial vehicles with trailers, and storage on the trucks and trailers of associated plant and equipment at No 374 Eighth Street, Wooree (site).

Site and locality

  1. The site has a frontage of about 145 metres at the southern side of Eighth Street, a depth of between about 270 metres and 295 metres, and an area of 3.9 hectares.  On the Eighth Street frontage, adjacent to the western boundary is a 10 metre wide strip for the access leg to the area of the proposed use.  Adjacent to that access leg is an area of about 3,800 square metres which includes an existing house behind which is a bitumen paved area which provides access to garages and sheds.  Adjacent to the house with frontage of about 40 metres to Eighth Street is an area of about 280 square metres which contains a large galvanised iron shed and bitumen paved parking and manoeuvring space.  This shed is used for a stock feed business.  The remaining 45 metres of the frontage is pasture which extends to the south around behind the existing improvements and then to the rear boundary.  Adjacent to the shed behind the house are stables.

  2. Around the site are lots of generally about 1 hectare, most with a single house.

Planning framework

  1. The site is zoned Rural­Residential RR2 under Shire of Geraldton­Greenough Local Planning Scheme No 5 (Greenough) (LPS 5).  LPS 5 was gazetted on 14 April 2010.

  2. At Sch 1 of TPS 5, under 'Land Use Definitions' it states:

    'home business' means a business, service or profession carried out in a dwelling or on land around a dwelling by an occupier of the dwelling which:

    (a)does not employ more than 2 people not members of the occupier's household;

    (b)will not cause injury to or adversely affect the amenity of the neighbourhood;

    (c)does not occupy an area greater than 50m2;

    (d)does not involve the retail sale, display or hire of goods of any nature;

    (e)in relation to vehicles and parking, does not result in traffic difficulties as a result of the inadequacy of parking or an increase in traffic volumes in the neighbourhood, and does not involved the presence, use or calling of a vehicle more than 3.5 tonnes tare weight; and

    (f)does not involve the use of an essential service of greater capacity than normally required in the zone;

  3. The objectives of the rural­residential zone are at cl 4.2 of LPS 5 and these are addressed below in the discussion of the issues.

  4. The conditional approval for the use of the site was granted on 22 December 2009.  At that time, the site was zoned Special Rural SR 2 under Shire of Geraldton­Greenough Town Planning Scheme (Greenough) No 4 (TPS 4).  TPS 4 was revoked on the gazettal of LPS 5 on 17 April 2010.

  5. In August 2008, the Council adopted a local planning policy 'Parking of Commercial Vehicles in Residential and Rural­Residential Areas' (Parking Policy).  The objectives of the Parking Policy are addressed in the discussion of issue 3 below.  At cl 4.1 of the Parking Policy it states:

    For the purposes of this policy a 'Commercial Vehicle' means any vehicle designed or used for commercial/industrial purposes which exceeds a load capacity of 3 tonnes, or a height of 3m, or a length of 6m (inclusive of attachments), and may include any utility, truck, bus (including bus converted for recreational purposes), trailer, tractor, any wheeled attachment or article designed or used for commercial/industrial purposes.

  6. In respect of parking location, the Parking Policy states:

    4.3.1The commercial vehicle must be parked entirely within the subject property, and should be contained behind the building setback line.

    4.3.2Preferably the vehicle should be parked to the rear of the residence and screened from view of the street and from neighbouring properties.

    4.3.3Only 1 commercial vehicle will be permitted to be parked on a residential/rural residential property, unless it can be demonstrated that an additional commercial vehicle can be parked on the property in compliance with the objectives of this policy.

Proposed development

  1. The applicants own a business called Geraldton Earthmoving Contractors (GEMC) and the site is listed as its business address.  The application to the City was for approval to park commercial vehicles on the site, namely two tip trucks, each with a trailer.  The vehicles would be parked on a hard stand area of about 1,200 square metres at the rear of the shed behind the house on the site.  Access to the parking area would be via a 70 metre long, 10 metre wide bitumen paved driveway adjacent to the western boundary of the site.  The proposal includes timber overlap fencing about 2 metres high along half the western edge of the access leg and around the hard stand area.  Landscaping is proposed between the timber fencing and the western boundary.

  2. The applicants' earthmoving business also makes use of what was referred to by both parties as 'plant equipment' which comprises two skid steer loaders, two excavators and a mini­loader.  The applicants said that they wanted approval to park the vehicles and trailers on the site, load and unload the plant equipment, and store the plant equipment separately when not in use.

Council's decision

  1. The Council granted conditional approval to the original development application subject to conditions.  Conditions which remain in dispute are:

    10.The plant equipment associated with the Commercial Vehicles shall be limited to:

    2x Bobcat skid steer loaders

    2x excavators

    1x Dingo mini-loader

    All of this equipment must be stored on the permitted vehicles and trailers at all times.

    ...

    12.No vehicle parts, equipment, machinery, tools of trade goods or materials connected with the earthmoving business being stored (either temporarily or permanently) on any part of the lot.

    ...

    16.Any loading or unloading plant equipment associated with the commercial vehicles as permitted in condition number 10 must not take place within the boundaries of the subject property.

  2. The approval also originally included condition 5 which reads:

    In consultation with the abutting land owner of Lot 109, Eighth Street (and with their agreement) construct a solid fence (1800 mm high) with the adjoining property for the length of 20 metres to either side of the hardstand and parking areas at the full cost of the applicant; or if no agreement is reached with the neighbour that the same fence may be constructed 1 metre off set from the boundary.

  3. The dispute in relation to condition 5 was resolved as a consequence of the applicants constructing the timberlap fence set back about 2 metres from the western boundary and implementing landscaping between that fence and the boundary.

The issues

  1. The issues identified from the submissions of the parties and documents filed are:

    1)Whether the loading and unloading, and storage of plant equipment associated with the earthmoving business constitutes an application and use different to that initially considered by the Council;

    2)Whether the loading and unloading, and storage of plant equipment associated with the earthmoving business will be inconsistent with LPS 5;

    3)Whether the loading and unloading, and storage of plant equipment associated with the earthmoving business will be inconsistent with the local planning policy 'Parking of Commercial Vehicles in Residential and Rural­Residential Areas';

    4)Whether the loading and unloading, and storage of plant equipment associated with the earthmoving business will adversely impact upon the amenity of the locality and residents in the locality.

Discussion

Issue 1:         Whether the loading and unloading, and storage of plant equipment associated with the earthmoving business constitutes an application and use different to that initially considered by the Council

  1. In early 2009, the City received complaints about a business operating from the site which included the parking of skid steer diggers, an excavator, trucks and trailers, and the loading and unloading of the digging equipment from the trucks and trailers.  The City wrote to the applicants at least twice asking them to identify the activity being undertaken and pointing out that planning approval was required for the parking of commercial vehicles.

  2. In August 2009, the applicants lodged a development application.  Mr Godenzie's letter of 12 August 2009 accompanying the application for development approval listed a 2006 Isuzu tipper truck with trailer, a 1988 Toyota Hino tip truck with a trailer and 'plant equipment' involved in the earthmoving business comprising two skid steer loaders, two excavators and one mini-loader.  The letter stated 'all of this equipment is able to be stored on the vehicles and trailers'.  Mr Godenzie's letter also described the other uses of the site by Wooree Stock Feeds and for grazing, and stated:

    The remaining 2.5 acres is made up of a residential dwelling, several small sheds, stables and is currently used for the storage of vehicles owned by GEMC.

  3. On the documents provided to the Tribunal it is apparent that the City asked for an application for approval for parking commercial vehicles and interpreted the application to be for that use.  The conditions imposed now under review were for the purposes of ensuring that the use made of the site was only for the parking of commercial vehicles consistent with the Parking Policy.

  4. The Tribunal has formed the view that the application letter of 12 August 2009 can be interpreted that the application was for the parking of the trucks and trailers, for these 'to be allowed to be kept on the premises of No 374 Eighth Street when not in use by GEMC' and for the site to be used for the 'storage' of these vehicles and the plant equipment.

  5. While the City had asked for an application for approval for the parking of commercial vehicles, the Tribunal is of the view that there is sufficient evidence that the applicants proposed more than simply the parking of the trucks and trailers with the plant equipment kept on the trucks and trailers.  The Tribunal subsequently ordered the applicants to identify their intentions more clearly and on 2 March 2010 the applicants wrote that they were seeking approval to park and store separately two commercial vehicles and their trailers on­site when not in use by GEMC.  The letter also states that:

    ... all items of equipment are able to be stored on the vehicles and trailers, however due to the requirements of the vehicles, equipment is needed to be removed and stored when not in use.  Removal of equipment is limited and is completed in several minutes.

  6. Section 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states:

    The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision­maker but may involve the consideration of new material whether or not it existed at the time the decision was made.

  7. The Tribunal has considered all the documents filed as provided for under s 27(1) of the SAT Act. The Tribunal has formed the view that the use the applicants are seeking the Tribunal to consider is not an application and use different from that made to the Council.

Issue 2:         Whether the loading and unloading, and storage of plant equipment associated with the earthmoving business will be inconsistent with LPS 5

  1. The respondent raised as issue whether the proposed development would be inconsistent with TPS 4.  The application for approval to commence the development and the decision of the City were made under the provisions of TPS 4 which was then in place.  TPS 4 was also still in place when the application for review was filed.

  2. On 17 April 2010, LPS 5 was gazetted. Clause 1.1.2 of LPS 5 states that TPS 4 is revoked. Section 27(2) of the SAT Act reads:

    The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.

  3. The decision upon the review is to be made in July 2010. Section 27(2) of the SAT Act is to be construed such that the decision is to be made having regard to the provisions of the local planning scheme in place in July 2010 not December 2009. That is, LPS 5 and the relevant policies of the City currently in place: Health Resorts Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60 at [24].

  4. Whether the applicants' proposed use would be inconsistent with TPS 4 is no longer a relevant question.  The issue is whether the proposed use would be inconsistent with LPS 5.

  5. The use proposed by the applicants is considered by the Tribunal to be appropriately characterised as a 'use not listed' under LPS 5 as it is a use not readily included in any of the use classes of Table 1.  The use cannot be characterised as a 'home occupation' because it employs persons not a member of the occupier's household, it occupies greater than 20 square metres of the site and involves a greater number of vehicles than would normally be required for a normal single dwelling.

  6. The City suggested in its statement of contentions that the use might be considered as 'industry - general', which is an 'X' or prohibited use in the rural­residential zone under the zoning table for LPS 5.  The definition of this use under LPS 5 reads:

    'Industry - general' means an industry other than a cottage, extractive, light, mining, rural or service industry;

  7. The Tribunal is of the view that the proposed use does not fit into this use class.  This is because industry typically includes machinery or skills used in the handling, treating, processing or packing of materials and products brought onto or produced at the lot, and usually the subsequent distribution of the product of that activity.  The use proposed does not accord with any of these activities; it is simply the parking and storage on the site of vehicles and equipment used elsewhere as part of the earthmoving business.

  8. LPS 5 does not include a definition for a transport depot, although the comment can be made that the use is similar to the activities included under 'Transport Depot' in former TPS 4, such as land used for the parking of road motor vehicles which are used or intended to be used for the carriage of goods.  In this instance, the trucks transport the 'plant equipment' but when in use might be used for the transport of soil and landscape supplies.  The site would be used as a depot for the storage of vehicles and equipment and the operation of the earthmoving business if used as proposed.

  9. In respect of uses not listed in the Zoning Table, at cl 4.4.2 of LPS 5 it states:

    If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the Local Government may;

    (a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;

    (b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedure of clause 9.4 in considering an application for planning approval; or

    (c)determine the use is not consistent with the objectives of the particular zone and is therefore not permitted.

  10. To consider whether the proposed use might be allowed, it is necessary to have regard to the objectives for the rural­residential zone of LPS 5.  Clause 5.14 under 'General Requirements' of LPS 5 states for the rural­residential zone:

    The principal use of land within the Rural Residential shall be for residential purposes.  Opportunities, however, exist for Rural Pursuits in the form of small scale farming uses in accordance with provisions of Parts 4 and 5 and Schedule 11 of the Scheme.  In exercising discretion in relation to permitting Rural Pursuits, the Local Government shall have regard to maintaining rural character and preventing any detrimental effect on nearby broad acre farming or other uses.

  1. The applicants' stables and grazing is a rural pursuit as defined in LPS 5 Sch 1 but the proposed use is not.  The stock feed business would appear a lawful non-conforming use under LPS 5.  In addition to the general requirement that the land use for residential purposes under cl 5.14, objectives for the rural­residential zone at cl 4.2 of LPS 5 are:

    To provide for the use of the land for residential purposes in a rural setting for alternative rural­residential lifestyle while preserving the amenity of such areas, ensure landscape protection and conservation, and controlling land use impacts.

  2. The applicants seek to use the site for the purpose of storing the various items listed as 'plant equipment' when the trucks and trailers are in use off­site.  It is also said that the tools and attachments for these machines would be stored and some minor servicing conducted.  This would be essentially establishing the site as the depot for operating the trucks and machinery of the earthmoving business.

  3. The Tribunal considers that this use of the site would not be consistent with the objectives for the rural­residential zone under LPS 5.  The objectives for the rural­residential zone are directed to residential use in a rural setting, and landscape protection and conservation.

  4. The respondent has accepted that, subject to conditions, it is reasonable in this zone that a resident be allowed to drive a commercial vehicle home, park it and then depart in the vehicle to work elsewhere.  The use proposed by the applicants is more than this because of the elements of parking and storing on­site of equipment independent of the trucks and trailers.

  5. The Tribunal notes that from photographs provided that the applicants have completed screen fencing, commenced landscaping and paving accessways to ensure parked commercial vehicles have minimal impact.  The Tribunal does not accept, however, as argued by the applicants, that the measures taken to ameliorate the impact of commercial parking can now be used to support the development of what the Tribunal considers to be a depot for the operation of the earthmoving business simply because the yard would be screened.  The use proposed would not be consistent with the land use objectives of the rural­residential zone whether or not the use is visible.

  6. The applicants have gone to considerable effort to identify in the locality uses they consider have more impact than would their proposed use.  This includes uses more than 1 kilometre distant.  From the photographs it is clear many of those uses have an adverse impact on local amenity.  Some sites, however, are in different zones, such as the Western Power Depot and all examples cited predate the gazettal of LPS 5.

  7. Most lots in the rural­residential zone of LPS 5 are used for purposes consistent with the rural­residential zone.  The Tribunal is not persuaded that the existence of the cited examples of other land uses provides a basis for continuing to approve land uses inconsistent with the intent of the rural­residential zone.

  8. The applicants referred to and provided photographs to illustrate that they make use of the various machines in the approved 'plant equipment' list for the general upkeep, and maintenance, landscaping and fencing of their personal grazing and stabling activities on the site.  This, they said, supports their submission in favour of allowing individual plant equipment machines to be kept on the site, but not stored on the trailers or trucks of the earthmoving business.

  9. The Tribunal considers that this use for domestic activities of machines bought for and used in the business is essentially only use incidental to the commercial purpose of the machines.  It is fortuitous that the applicants have the machines available to assist with such activities.  However, this incidental use of machines for domestic activity is not considered by the Tribunal to be a basis for changing the use of the site from rural­residential with parking of commercial vehicles to one where the plant equipment is stored separately for use in an earthmoving business and with that equipment being available from time to time for use for domestic purposes.

  10. In respect of issue 2, the Tribunal has found that the use of part of the site as a depot for the parking and equipment storage of an earthmoving business would be inconsistent with the objectives for the rural­residential zone under LPS 5.

Issue 3:         Whether the loading and unloading, and storage of plant equipment associated with the earthmoving business will be inconsistent with the local planning policy 'Parking of Commercial Vehicles in Residential and Rural­Residential Areas'

  1. Clause 3.1 of the Parking Policy includes as an objective:

    To ensure that the parking of such a vehicle will not adversely affect the amenity of the locality nor have any adverse effect upon the occupiers or users of properties in, or inhabitants of, the locality of the land on which the vehicle is parked.

  2. When referring to amenity, the Parking Policy states at cl 4.2.1:

    The parking of a commercial vehicle should not adversely impact upon the amenity of the locality.  Amenity is considered to relate to what can be reasonably expected in the subject residential/rural residential environment.  Amenity can be affected by the undue generation of noise, fumes, odours and the like.  Visual amenity is another component which relates to the manner in which the property is viewed from the street or adjacent properties.

  3. The City has determined that, subject to conditions, the parking of the two trucks with trailers and the 'plant equipment' stored on the trucks and trailers satisfies the requirement for an approval for parking of commercial vehicles under the Parking Policy.  The question to be answered is whether the variation from the Council's conditional approval that the applicants are seeking would render the approved use unacceptable because of its effect on the use of the site and the amenity of the locality.

  4. As found under the discussion on issue 2 above, the Tribunal has formed the view that the storage for unrestricted lengths of time of the 'plant equipment' independent of the trucks and trailers is in effect an additional use of the site as a depot for an earthmoving business.  This, the Tribunal concludes is not consistent with the planning objectives for the rural­residential zone under LPS 5 and therefore is in conflict with the Parking Policy.

  5. In respect of the parking of commercial vehicles, including the unloading of individual items of 'plant equipment' off a truck or trailer to be placed on the other truck or trailer, the Tribunal is of the view that this would not have an undue impact on the local inhabitants if it occurs during normal working hours.  The applicants have said they would accept hours of 7 am to 6 pm Monday to Saturday to conduct their activities.  A condition could be imposed to this effect.

  6. The Tribunal also considers it reasonable that should one of the trucks or a trailer not be required for that day's business, then that truck or trailer may remain on the site with the 'plant equipment' stored on the truck or trailer.  It is not necessary that a parked commercial vehicle be removed from the site every working day.

  7. The Tribunal is of the view that these two variations to the approval would be consistent with the intent of the approved parking of commercial vehicles and two trailers on the site.

Issue 4:         Whether the loading and unloading, and storage of plant equipment associated with the earthmoving business will adversely impact upon the amenity of the locality and residents in the locality.

  1. At Sch 1 under 'General Definitions', LPS 5 states:

    'Amenity' means those factors which combine to form the character of an area and include the present and likely future amenity.

  2. The applicants have complied or are complying with the conditions of approval imposed by the Council for the screen fencing, landscaping the sealing of the hardstand area and accessway.  Photographs show this is being done to a high standard.

  3. As discussed in the issues above, the Tribunal has found that unloading and loading of the plant equipment, if only done for the purpose of transferring that equipment between different trucks or trailers between 7 am and 6 pm Monday to Saturday, would be of sufficiently short duration and at a time to not have an unreasonable impact on the local amenity.

  4. The Tribunal does not support the use of the site for more than the parking of commercial vehicles.  The addition to the use of the site of a depot for the earthmoving business would not be consistent with the maintaining those factors which will help form the future rural­residential character of this locality.

  5. The storage of the plant equipment on the site other than on the trucks or trailers is therefore considered to adversely impact on the amenity of the locality.

Conclusion

  1. Issue 1 was concerned with how different the proposed use before the Tribunal was from the application considered by the Council.  The Tribunal found that the Council asked for an application for approval for commercial parking and treated the application accordingly.  The Tribunal found from the documents filed that the applicants' initial submission to the Council was for more than simply commercial parking.  The applicants were seeking approval to load and unload, and store on the site when not in use, the plant and equipment used in their earthmoving business.  The clarification of their proposal by the applicants in the course of the review did not constitute a different application and use being before the Tribunal.

  2. Issue 2 was whether the proposed use would be inconsistent with LPS 5.  The site is now zoned rural­residential.  The Tribunal found that the proposed use would effectively be the additional use of a depot for an earthmoving business on the site.  The Tribunal concluded that this additional use on the site would be inconsistent with the objectives of the rural­residential zone under LPS 5.

  3. Issue 3 was whether the proposed use would be inconsistent with the City's Parking Policy.  The Tribunal having found that the whole of the proposed use would be effectively introducing a depot for an earthmoving business to the site and this use would be inconsistent with the Parking Policy.  The Tribunal did find, however, that with the parking of two truck and trailer combinations simply to shift machines from one truck or trailer to the other during working hours would be consistent with the parking of commercial vehicles.  It was also concluded that a commercial vehicle need not be moved from the site every day.

  4. Issue 4 was concerned with the impact of the proposed use on local amenity.  The Tribunal concluded that the proposed use would be in conflict with local amenity because it would be inconsistent with establishing and maintaining desired character set out for the rural­residential zone in LPS 5.

  5. The Tribunal has concluded that the use of the site as proposed by the applicants cannot be supported because it would have an undesirable impact on local amenity and be in conflict with the objectives for the rural­residential zone under LPS 5.

  6. The Tribunal has concluded, however, that the conditions of the commercial parking approval granted by the Council can be amended by allowing the listed 'plant equipment' to be transported between trucks and trailers on­site during working hours.

Orders

1.The application for review of condition 12 is dismissed.

2.The application for review of condition 10 and condition 16 is allowed in part as follows:

(i)Condition 10 is amended by adding after the last sentence:

Any truck and trailer with the approved items of 'plant equipment' stored on it not required for work on any particular day may be kept parked at Number 374 Eighth Street, Wooree.

(ii)Condition 16 is deleted and replaced with the following:

16.Any loading or unloading on­site of the plant equipment associated with the commercial vehicles permitted under condition number 10 must only be for the purpose of transferring that plant equipment between the trucks and the trailers and any unloading or loading must only take place between the hours of 7 am and 6 pm Monday to Saturday.

I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J JORDAN, MEMBER

Most Recent Citation
Cases Citing This Decision

3

APN Outdoor and City of Cockburn [2014] WASAT 32
Chapman and City Of Armadale [2011] WASAT 205
City of Armadale v Chapman [2012] WASC 423
Cases Cited

1

Statutory Material Cited

4

Health Resorts Of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60