Hadfield and Town of Victoria Park
[2016] WASAT 120
•22 SEPTEMBER 2016
HADFIELD and TOWN OF VICTORIA PARK [2016] WASAT 120
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 120 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:220/2015 | 5 AUGUST 2016 | |
| Coram: | DR B DE VILLIERS (MEMBER) MS R MOORE (MEMBER) | 22/09/16 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application for review succeessful and orders made | ||
| B | |||
| PDF Version |
| Parties: | PAUL HADFIELD TOWN OF VICTORIA PARK |
Catchwords: | Review of decision to refuse change of use of premises to 'club' Meaning of the word 'industrial' Relevance of town planning scheme and precinct plan which allow several use classes that are not strictly speaking 'industrial' in nature |
Legislation: | Building Code of Australia Health (Public Building) Regulations 1992 (WA) Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 67, Sch 1, Sch 2 Planning and Development Act 2005 (WA), s 68(1)(a), s 68(1)(b) Town of Victoria Park Town Planning Scheme No 1, cl 3, cl 16, cl 36(5)(c), Sch 1 |
Case References: | Bivern Holdings Pty Ltd v The Council of the City of Melville (unreported, WASC, Library No 4396, 8 February 1982) and (unreported, FamCA, Library No 4671, 5 October 1982) Chiefari v Brisbane City Council [2005] QPELR 500 Galloway and Associates and City of Melville [2007] WASAT 238 |
Orders | 1. The decision of the respondent dated 9 June 2015 to refuse the application for planning approval to change of use of Unit 1, 1216 Milford Street, Victoria Park to 'club purposes' is set aside.,2. The letter dated 10 June 2015 in which the applicant is informed by the respondent of the decision is revoked.,3. Planning Approval is granted for the use of Unit 1, 1216 Milford Street, Victoria Park to be changed to 'club purposes'.,4. The planning approval is subject to the following Conditions of Approval:,(a) No more than thirty (30) persons are permitted on the premises at any one time.,(b) The approval is valid for a period of 36 months as from the date of these Orders and Conditions of Approval.,(c) If the change of use as approved is not substantially commenced within 24 months from the date of these Orders and Conditions of Approval, a further approval must be obtained either on a fresh application, or on an application under the deemed cl 77(1)(a) in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).,(d) The premises are not approved as licensed premises.,(e) The premises are not to be hired or permitted to be used by third party, without the prior written approval of the Town of Victoria Park.,(f) The land use 'Club Premises' shall not commence until a Building Approval Certificate (BA 14) and an Occupancy Permit (BA 9) have been issued by the Town in order to bring the premises into compliance with the Health (Public Building) Regulations 1992 and current Building Code of Australia requirements.,(g) No external signage advertising the 'Club Premises' or the operator of the 'Club Premises' is permitted.,(h) The premises shall only be used for the purpose of a 'Club Premises' as defined in the Planning and Development (Local Planning Schemes) Regulations 2015 at cl 38 of Sch 1 - Model provisions for local planning schemes.,(i) The premises are not to be used at any time for residential accommodation or any other purposes.,(j) The Club Premises are only permitted to operate during the following times:,(i) Tuesdays between the hours of 6 pm and 10 pm; and ,(ii) Fridays between the hours of 6 pm and 12 pm (midnight), to conduct club meetings.,(k) Motorcycle access to and from the premises is to be via Milford Street and Bank Street. Motorcycle access to and from Swansea Street is not permitted. The Club occupying the premises is to take all reasonable measures to ensure that visitors to the premises are aware that access to the premises to and from Swansea Street East is not permitted.,(l) Planning Approval does not remove the responsibility of the applicant to comply with all relevant building, health and engineering requirements of the Town, with any requirements of the Town of Victoria Park Town Planning Scheme No 1 or the requirements of any other authority. |
Summary | This dispute concerns an application by a motorcycle club to use premises in an industrially zoned area for the purposes of a 'club'. The Town of Victoria Park says that the use of the premises ought not be changed to 'club' since the premises are located in an industrial area where the primary use of land is for industrial purposes or for purposes associated with industrial use. The applicant says that the motorcycle club had been using the premises for club activities for more than a decade and no complaint had been lodged with the local authority about any amenity concerns. The applicant also refers to other nonindustrial type uses in the zone, such as a church, office and recording studio.,The Tribunal found that on balance, it is satisfied that: (a) the proposed use of the premises as a 'clubhouse' by the applicant is consistent with the Town of Victoria Park Town Planning Scheme No 1 and the Town Planning Scheme No 1 Welshpool Precinct P9 as an 'Unlisted Use' since the Schedule of Use Classes enacted by the Town of Victoria Park includes several potential uses that are not strictly speaking of an 'industrial' nature; (b) the Tribunal has a discretion to approve the change of use; and (c) concerns about impact on amenity can be mitigated by way of conditions. Those conditions will include a preliminary approval of three years; limitation on the number of persons who may attend the premises; limitation on the days and hours of operation; and other restrictions.,These reasons were handed down orally on 22 September 2016. This is an edited version of those oral reasons. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HADFIELD and TOWN OF VICTORIA PARK [2016] WASAT 120 MEMBER : DR B DE VILLIERS (MEMBER)
- MS R MOORE (MEMBER)
- Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords:
Review of decision to refuse change of use of premises to 'club' Meaning of the word 'industrial' Relevance of town planning scheme and precinct plan which allow several use classes that are not strictly speaking 'industrial' in nature
Legislation:
Building Code of Australia
Health (Public Building) Regulations 1992 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 67, Sch 1, Sch 2
Planning and Development Act 2005 (WA), s 68(1)(a), s 68(1)(b)
Town of Victoria Park Town Planning Scheme No 1, cl 3, cl 16, cl 36(5)(c), Sch 1
Result:
Application for review succeessful and orders made
Summary of Tribunal's decision:
This dispute concerns an application by a motorcycle club to use premises in an industrially zoned area for the purposes of a 'club'. The Town of Victoria Park says that the use of the premises ought not be changed to 'club' since the premises are located in an industrial area where the primary use of land is for industrial purposes or for purposes associated with industrial use. The applicant says that the motorcycle club had been using the premises for club activities for more than a decade and no complaint had been lodged with the local authority about any amenity concerns. The applicant also refers to other nonindustrial type uses in the zone, such as a church, office and recording studio.
The Tribunal found that on balance, it is satisfied that: (a) the proposed use of the premises as a 'clubhouse' by the applicant is consistent with the Town of Victoria Park Town Planning Scheme No 1 and the Town Planning Scheme No 1 Welshpool Precinct P9 as an 'Unlisted Use' since the Schedule of Use Classes enacted by the Town of Victoria Park includes several potential uses that are not strictly speaking of an 'industrial' nature; (b) the Tribunal has a discretion to approve the change of use; and (c) concerns about impact on amenity can be mitigated by way of conditions. Those conditions will include a preliminary approval of three years; limitation on the number of persons who may attend the premises; limitation on the days and hours of operation; and other restrictions.
These reasons were handed down orally on 22 September 2016. This is an edited version of those oral reasons.
Category: B
Representation:
Counsel:
Applicant : Mr P Hadfield (Agent)
Respondent : Mr D McCleod
Solicitors:
Applicant : N/A
Respondent : McLeods Barristers and Solicitors
Case(s) referred to in decision(s):
Bivern Holdings Pty Ltd v The Council of the City of Melville (unreported, WASC, Library No 4396, 8 February 1982) and (unreported, FamCA, Library No 4671, 5 October 1982)
Chiefari v Brisbane City Council [2005] QPELR 500
Galloway and Associates and City of Melville [2007] WASAT 238
Introduction
1 This dispute concerns the question whether an incorporated motorcycle club should be allowed to use premises (Unit 1, 1216 Milford Street) (premises) within an area zoned as 'industrial' for purposes of a clubhouse, for example, a clubhouse where members meet on two days per week. Currently, the premises are designated for warehouse/storing purposes although they have been used for around 12 years by the motorcycle club as a clubhouse for its members.
2 Mr Hadfield (applicant) acts as agent for the motorcycle club and Mr McLeod acts as legal representative for the Town of Victoria Park (respondent).
3 The parties are generally in agreement in regard to the facts and the without prejudice conditions proposed by the respondent. The parties disagree in regard to:
(a) whether allowing a club to use the premises is consistent with the zoning of the industrial area where the premises are located and, if so;
(b) whether the amenity of the locality (including the nearby residential area) would be so negatively impacted upon by the change of use to 'club purposes' that approval should be withheld.
4 In closing submissions, Mr McLeod for the respondent indicated that the main reason for the respondent's refusal of the application relates to noncompliance of the proposed use to the zoning of the premises. He said that if the Tribunal found that the proposed use is consistent with the zoning of the premises, that the concerns of the respondent in regard to amenity can probably be addressed by way of conditions.
5 It is noted that apart from two councillors of the Town of Victoria Park (the mayor and the deputy mayor) who gave evidence, no planner or other staff member of the respondent or other expert gave evidence and no member(s) of the public were called to give evidence about issues arising from amenity or any other concerns with the proposed use.
Issues
6 The issues are usefully set out in the Statement of Issues Fact and Contentions of the respondent, namely:
1. Is the proposed use consistent with the intended use of the land in the Industrial (1) Zone of the Town of Victoria Park Town Planning Scheme No 1 (Planning Scheme)?
2. Is the proposed use of the premises consistent with orderly and proper planning?
3. Would the proposed use of the premises have a negative impact upon the amenity of the locality?
Summary of facts
7 The facts are generally agreed and can be summarised as follows.
8 The facts regarding the land the subject of the application and its location are set out in page 2 of Exhibit D.
9 In essence, the premises form part of an industrial complex of 21 tenancies which are located at 1216 Milford Street, Victoria Park. The tenancies include factory units, showrooms, a recording/rehearsing studio, a training centre and an office. In regard to the area surrounding the premises, the north and northeast side of Milford Street (both sides) comprise commercial and industrial buildings, while the southwest side (opposite side of Swansea Street East) contains residential developments. Access to the premises can be gained from Swansea Street East and Milford Street. The applicant has, for around 12 years, been occupying the premises and has been using it as a clubhouse for its club members, known as the Rebels Motorcycle Club and incorporated as Confederate Social Club of WA, although the approved use for the premises are as a 'factory/warehouse'. The applicant has about 30 members who frequent the premises on Tuesday and Friday evenings. There had been no complaints lodged with the respondent prior to 2014 about the existence of the club or about behaviour in regard to the club, the applicant, or persons attending the premises or the club activities.
10 The respondent became aware in 2014 of the applicant's unauthorised use of the premises for the purposes of a clubhouse. The respondent notified the applicant of the unapproved use and directed the applicant to cease the use or to apply for a change of use. The applicant subsequently sought approval for the use of the premises as a clubhouse.
11 Since there is no category for the use of the premises as a clubhouse in the planning scheme, the application was treated as 'Unlisted Use' under the Planning Scheme and the Town Planning Scheme No 1 Welshpool Precinct P9 (Precinct Plan) adopted pursuant to the Planning Scheme. Community consultation was undertaken by the respondent and submissions from the public were invited. Twenty-one submissions were received.
12 The respondent refused the application on 9 June 2015.
13 The respondent relied on the Planning Scheme and the Precinct Plan and concluded that the use of the premises as a clubhouse would be contrary to cl 36(5)(c) of the Planning Scheme and the Precinct Plan which states that '[n]onindustrial uses will generally be discouraged from locating in the precinct except where they are to be incidental uses, or where they directly serve the area, and the nearby residential precincts'.
14 The applicant, Mr Hadfield, who lodged the application on behalf of the club, is now seeking a review of the decision of the respondent and wishes to obtain planning approval for the conversion of the premises from a 'factory/warehouse' to 'club premises'. The matter had been for mediation but no settlement was reached.
Role of the Tribunal
15 The Tribunal is placed in the position of the original decisionmaker when it reviews the decision to refuse approval of the proposed change of use. The Tribunal's objective is to make the correct and preferable decision based on all the evidence and information that had been available to the respondent as well as any evidence or information that has since become available. The Tribunal may affirm the decision of the respondent; substitute the decision with a new decision; and impose conditions as part of its decision. The Tribunal notes that the parties had reached agreement on a without prejudice basis on conditions should the Tribunal approve of the proposed activity. The Tribunal is not bound by those agreed conditions. The decision of the Tribunal becomes the decision of the respondent.
Planning regime
16 The premises are zoned as 'Industrial (1)' pursuant to the Planning Scheme. The premises are located within the Precinct Plan. The relevant part of the Precinct Plan is found in the Statement of Intent which provides as follows:
The Welshpool Precinct shall continue to function as an industrial area, meeting the need for service industry in the inner areas of the city and close to the city centre.
A mixture of industrial uses will occupy the majority of this precinct. Generally only light industrial uses will be permitted west of Briggs Street in order to protect residential uses from the effect of heavier industrial activities, while the area to the east of Briggs Street will be available for general industrial use. Non-industrial uses shall generally be discouraged from locating in this precinct except where they directly serve the area, or are to be incidental to a primary industrial use. Importantly, particular attention will be given to ensuring that the land uses respect the amenity of adjacent residential areas.
17 The Precinct Plan provides as follows in regard to Industrial (1) Zone where the premises are located:
This section of the precinct shall be developed primarily for small scale industrial uses. …
The preferred uses shall be light industry, Research and development, showrooms and warehouses will be allowed where they are complementary to the industrial area.
Other non-industrial uses will generally be discouraged from locating in the precinct except where they are to be incidental uses, or where they directly serve the area, and the nearby residential premises.
18 The Precinct Plan sets out certain 'Use Classes' - 23 in total. Some uses, marked 'P' on the Precinct Plan, such as consulting rooms, day care, restaurant, light industry, open air sales and display, showroom and warehouse are 'permitted'. Some uses, marked 'AA' on the Precinct Plan, are discretionary and require approval of the respondent, for example, convenience store, service station, place of worship, educational establishment, general industry, transport depot, hospital, nursing home, liquor store, massage rooms, restricted premises and shop. Some uses, marked 'X' on the Precinct Plan, are prohibited and not allowed in the Planning Scheme, for example, home occupation, hazardous industry, home office, hotel, motel, tavern, small liquor store, nightclub, single house, group dwelling or multiple dwelling.
19 It is agreed by the parties that the proposed use of the premises by the applicant as a 'club premises' does not fall within any of the 'Use Classes' identified by the Precinct Plan and that the proposed use should be treated as an 'unlisted (that is, discretionary)' class which requires advertising for public comment.
20 The respondent accepts that the proposed use of the premises is consistent with the definition of 'club premises' as found in the Planning and Development (Local Planning Schemes) Regulations 2015, (LPS Regulations) as follows:
… means premises used by a legally constituted club or association or other body of persons united by a common interest[.]
21 This definition in turn is consistent with the meaning of 'private club' in the matter of Bivern Holdings Pty Ltd v The Council of the City of Melville(unreported, WASC, Library No 4396, 8 February 1982) and (unreported, FamCA, Library No 4671, 5 October 1982).
22 The Planning Scheme (cl 16) provides as follows in regard to Unlisted Uses:
If the use of land for a particular purpose is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the interpretation of one of the use Class categories the Council may:
(1) determine that the use is consistent with the objectives and purposes of the particular Zone and is therefore permitted; or
(2) determine that the proposed use may be consistent with the objectives and purposes of the Zone and thereafter follow the advertising procedures of clause 37 in considering an application for planning approval; or
(3) determine that the use is not consistent with the objectives and purposes of that particular Zone and is therefore not permitted.
23 When considering the planning application, the respondent (and therefore the Tribunal) must also have regard to the LPS Regulations and particularly Sch 2 cl 67 which outlines a list of matters to be considered when development approval is sought.
24 It is agreed by the parties that:
a) the proposed use of the premises as a 'club premises' does not fall within any of the uses identified by the Precinct Plan;
b) the proposed use of the premises as a 'club premises' ought to be treated as an 'Unlisted Use';
c) the proposed use of the premises as a 'club' should be advertised for public comment as has been done by the respondent;
d) 21 submissions had been received by the respondent;
e) the respondent may, pursuant to its discretion, approve an 'Unlisted Use';
f) none of the persons who made submissions in favour or against the proposed use of the premises as a 'club premises' was called to given evidence; and
g) conditions may be imposed to mitigate the potential impact of a change of use on the amenity to the locality.
Contentions
25 The contentions of the parties are well set out in the respective written and oral submissions.
26 In essence, the respondent opposes the application for the following reasons.
27 The premises should be used for a purpose consistent with the Precinct Plan, namely 'industrial', unless the proposed use serves the area or is incidental to or a primary industrial use. The use of the premises as a clubhouse for motorcycle enthusiasts does not meet the requirements of the Precinct Plan, since the proposed use is not industrial, is not complementary to industrial, does no service the industrial zone, and it does not service the surrounding community. It is essential for the respondent to protect the integrity of the respective zones within its jurisdiction since proper and responsible planning requires adherence to planning instruments. Although there have been instances within the Industrial Zone where the respondent had approved nonindustrial uses (seven in total), those uses were either in the 'permitted' category (3), or in the 'discretionary' category (1), with only three being 'Unlisted Uses'. Of the three 'Unlisted Uses', two were the same use for the same premises and these were for a recording studio/rehearsing which had some elements of 'industrial' since a product is produced. Other 'Unlisted Uses' have recently been refused, for example, a circus training facility and gymnasium. In summary, the respondent is of the view that the proposed use of the premises is not consistent with the objectives and purposes of the Precinct Plan and is not consistent with the Planning Scheme. The decision of the respondent to refuse approval for the application should therefore be affirmed. Although in its written submissions the respondent raised concerns about the potential impact of the proposal to amenity, in his closing oral submissions, Mr McLeod said that the amenity concerns may be mitigated by way of the without prejudice conditions if the proposal is found to be consistent with the Planning Scheme.
28 In essence, the applicant contends that the proposal should be approved for the following reasons.
29 The premises had been used as a club for motorcycle enthusiasts for the past 12 years before the respondent intervened. During that period, no complaints of any nature had been lodged with the respondent by members of the public or other tenants within the Precinct Plan. The applicant and its members have shown that they are responsible users of the premises and they are of the view that they should be allowed to continue the use as a clubhouse, even if it means that conditions are imposed. The applicant further notes that several other uses within the premises are of a nonindustrial nature, such as an office, recording and rehearsing studio and a church. The decision of the respondent to refuse approval for the application should therefore be set aside and approval be granted, albeit, if necessary, subject to conditions since such conditions could mitigate any possible impact of the change of use.
Consideration
30 The parties are in agreement about the facts giving rise to this application and about the planning regime that applies to the premises. The parties have also reached agreement on a without prejudice basis on conditions that could be applied by the Tribunal should approval be granted for the proposed use.
31 The essence of dispute is whether the use of the premises for purposes of a motorcycle club is consistent with the Precinct Plan, which seems to emphasise the industrial nature of Precinct 9.
32 The Tribunal visited the premises in the presence of the parties. The Tribunal was shown various aspects of the premises; tenancies around the premises as well as the residential area in close proximity to the premises. During the hearing the Tribunal put questions to the two witnesses who gave evidence on behalf of the respondent, Mr Trevor Stephen Vaugh and Mr Brian Christopher Oliver, respectively, the mayor and deputy mayor of the respondent. Although the two witnesses explained why they personally voted against the proposal by the applicant, they were unable to satisfactorily respond to questions of a more specialist nature. For example, they could not answer, other than by way of speculation, what density for cluster development had been approved for the residential area along Swansea Street East other than to say they had driven past the area. The limited understanding of the two witnesses of the planning regime was highlighted by their efforts to explain why advice of staff had previously not been heeded and why it should now be followed. The witnesses also highlighted the learning curve of councillors in regard to planning matters. While this is reasonable, it highlighted the absence of expert planning witnesses on the part of the respondent and the contribution such experts could have made to the proceeding.
33 Since the proposed use of the premises falls within the category of an 'Unlisted Use' namely a motorcycle club, the key question arising is, what is meant by 'industrial' in the respective planning instruments, particularly in the Precinct Plan?
34 It is accepted by the Tribunal that the Precinct Plan has the force of the Planning Scheme and should not be treated merely as a declaration of policy. The Precinct Plan forms, in effect, part of the Planning Scheme due to the working of cl 3 of the Planning Scheme which determines that the Planning Scheme comprises the text of the Scheme as well as the Precinct Plan. The Planning Scheme, in turn, has effect as if it had been enacted by the Planning and Development Act 2005 (WA), s 68(1)(b).
35 The Precinct Plan does not define 'industrial' and neither does the Planning Scheme. The respondent does not propose a definition for the term 'industrial' but from its submissions and evidence, it appears as if the respondent prefers that a common dictionary interpretation is used, namely that industrial means 'having to do with industry or productive labour' and that 'industry' means a 'particular branch of trade or manufacture': Macquarie Concise Dictionary (3rd ed, 2004). The respondent suggests that 'industry' means to produce or make something - hence the approval of the recording studio since it is producing recording and selling CD's or other recorded products. Schedule 1 of the Planning Scheme contains a definition of 'industry' as being:
'industry' means the carrying out of any process for or incidental to -
(a) the making, altering, repairing or ornamentation, painting, finishing, cleaning, packing or canning or adapting for sale or the breaking up or demolition of any article or part of any article;
(b) the winning, processing or treatment of minerals;
(c) the generation of electricity or the production of gas;
(d) the manufacture of edible goods for human or animal consumption - being a process carried on in the course of trade or business, whether or not for gain, but the term does not include operations connected with -
(e) the carrying out of agriculture;
(f) site work on buildings, works or land; and
(g) in the case of the manufacture of goods referred to in paragraph (d), the preparation of food for sale on the premises of a shop[.]
36 The applicant does not produce anything but wishes to use the site for what can be called a recreational purpose.
37 If the application had turned on these definitions of 'industrial' and 'industry', the outcome may have been simple because the proposal by the applicant clearly does not conform with a narrow interpretation of the words 'industrial' or 'industry'.
38 The Precinct Plan itself, however, creates ambiguity about the meaning of the word 'industrial'. Although the Tribunal accepts that planning instruments of this nature are, generally speaking, drafted by planners and not by lawyers, the text of the planning instrument should, nevertheless, guide the Tribunal in its decisionmaking. Words used within the same planning instrument should be interpreted harmoniously so as to give effect and practical operation to it and words should be read within the broader context of the planning framework. In giving the words of a planning scheme the meaning that the maker of the scheme is taken to have intended them to have, the terms of the planning instrument:
… will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
(Chiefari v Brisbane City Council [2005] QPELR 500 at [502] (Wilson J); referred to by the Tribunal in Galloway and Associates and City of Melville [2007] WASAT 238 at [41]).
39 In the Planning Precinct the word 'industrial' is used repeatedly and, at face value, it appears as if a narrow interpretation should be given to the word. However, when consideration is given to the 'Use Classes' which is also contained in the Precinct Plan, it appears as if several uses which would not ordinarily conform with the word 'industrial' or 'industry' are either permitted or are discretionary. Examples of such uses which appear to be nonindustrial and yet within the permissible or discretionary 'Use Classes' for the Planning Precinct are:
• consulting rooms;
• day care centre;
• educational establishment;
• place of worship;
• hospital;
• nursing home;
• massage room; and
• office.
40 The possible use of the premises for 'club purposes' is, as already stated, not a 'prohibited' use.
41 It appears, therefore, as if the specific uses that are either 'permitted' or 'may be considered' for the premises are more flexible than what a strict reading of the word 'industrial' suggests. The type of classes that have been included as permissible or discretionary within the 'Use Classes' do not all relate to a strict manufacturing function. On the contrary, many of the uses relate to services that do not produce a product but, rather, provide a service to members of the public, for example, day care centre, consulting rooms, hospital and office. The strong emphasis placed by the respondent on a strict adherence to the word 'industrial' is not supported by the Planning Scheme and Precinct Plan when read with the 'Use Classes'.
42 It is the view of the Tribunal that the term 'industrial' should be interpreted in light of the way in which the word is used in the context of the Planning Scheme and the Planning Precinct and not in accordance with its ordinary dictionary meaning. The use proposed by the applicant falls within those categories of nonindustrial 'Use Classes'.
43 The Tribunal has the discretion to approve the proposed use of the premises, even if such a use is not consistent with a narrow interpretation of the term 'industry' or 'industrial'.
44 The Tribunal notes that the proposal put forward by the applicant is, in summary, as follows:
• the premises be used for club purposes;
• not more than 30 persons may attend the premises at any given time;
• the premises only be used on Tuesdays 6 pm to 10 pm and Fridays between 6 pm and 12 pm (midnight);
• that access to the premises be gained from Milford Street (zoned 'industrial' on both sides) and that a notice to that effect will be sent to all members; and
• that cars rather than motorbikes may be used if complaints about noise are received.
- The applicant also indicated that it would be open to a condition, as applied in the case of another similar club in the City of Cockburn, for conditional approval to be granted for a period of two years.
45 The Tribunal further notes that the respondent had invited public comment to the proposed change of use by the applicant. It is further noted that;
(a) in the 12 years that the premises had been used for purposes of a clubhouse by the applicant, no complaint had been lodged with the respondent;
(b) submissions in support of, and against, the proposed change of use were received from the public; and
(c) the respondent acknowledged that concerns about amenity can be mitigated by way of conditions such as those agreed to by the parties on a without prejudice basis. No witnesses were called by either party to give evidence about amenity issues.
46 The Tribunal is of the view that concerns raised during the public consultation process about possible noise and traffic can be addressed by way of conditions imposed on the planning approval. Although the names of persons who lodged complaints during the consultation were redacted and, although none of the objectors were called to given evidence, the concern about noise created late at night and the risk of disorderly conduct may be reasonable. It must, however, also be noted that no complaints had been received during more than a decade of operations by the club; no complaints had been received during the public consultation from other tenants within the Planning Precinct; and that tenants in the immediate vicinity of the premises, such as Mr Richardson from Unit 17 and Mr and Mrs Warren from WA Trophies and Gifts, have strongly supported the application.
47 On balance, the Tribunal is satisfied that:
(a) the proposed use of the premises as a clubhouse by the applicant is consistent with the Planning Scheme and the Planning Precinct as an 'Unlisted Use';
(b) that the Tribunal has a discretion to approve the change of use; and,
(c) that concerns about impact on amenity can be mitigated by way of Conditions. Those conditions will include a preliminary approval of three years; limitation on the number of persons who may attend the premises; limitation on the days and hours of operation; and other restrictions.
48 Other than concerns raised about amenity, the Tribunal is satisfied that there are no other matters in s 67 of Sch 2 of the LPS Regulations preclude the change of zoning. Possible concerns about access to the premises are dealt with by way of the Conditions, and possible concerns about traffic are dealt with by the limited frequency of use of the premises as well as the after hour use of the premises. The change of use is most unlikely to impact on the activities to existing operations in the industrial area and no concern has been raised in this regard.
49 The decision of the respondent to refuse the application should therefore be revoked, the notice be set aside and approval be granted for the change of use.
50 The approval granted shall be subject to conditions discussed and agreed to by the parties. The Tribunal accepts those conditions as fair and reasonable but will add a condition which had, in effect, been agreed to by the applicant, namely that approval is granted for a period of three years.
51 The Tribunal's determination of the issues identified are:
1. Is the proposed use consistent with the intended use of the land in the Industrial (1) Zone of the Planning Scheme? Yes it is.
2. Is the proposed use of the premises consistent with orderly and proper planning? Yes it is.
3. Would the proposed use of the premises have a negative impact upon the amenity of the locality? No, the proposed change of use would not have a negative impact on amenity since conditions would be imposed to limit the impact and the change of use will be granted for an initial period of two years only.
52 Orders
1. The decision of the respondent dated 9 June 2015 to refuse the application for planning approval to change of use of Unit 1, 1216 Milford Street, Victoria Park to 'club purposes' is set aside.
2. The letter dated 10 June 2015 in which the applicant is informed by the respondent of the decision is revoked.
3. Planning Approval is granted for the use of Unit 1, 1216 Milford Street, Victoria Park to be changed to 'club purposes'.
4. The planning approval is subject to the following Conditions of Approval:
(a) No more than thirty (30) persons are permitted on the premises at any one time.
(b) The approval is valid for a period of 36 months as from the date of these Orders and Conditions of Approval.
(c) If the change of use as approved is not substantially commenced within 24 months from the date of these Orders and Conditions of Approval, a further approval must be obtained either on a fresh application, or on an application under the deemed cl 77(1)(a) in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
(d) The premises are not approved as licensed premises.
(e) The premises are not to be hired or permitted to be used by third party, without the prior written approval of the Town of Victoria Park.
(f) The land use 'Club Premises' shall not commence until a Building Approval Certificate (BA 14) and an Occupancy Permit (BA 9) have been issued by the Town in order to bring the premises into compliance with the Health (Public Building) Regulations 1992 and current Building Code of Australia requirements.
(g) No external signage advertising the 'Club Premises' or the operator of the 'Club Premises' is permitted.
(h) The premises shall only be used for the purpose of a 'Club Premises' as defined in the Planning and Development (Local Planning Schemes) Regulations 2015 at cl 38 of Sch 1 - Model provisions for local planning schemes.
(i) The premises are not to be used at any time for residential accommodation or any other purposes.
(j) The Club Premises are only permitted to operate during the following times:
(i) Tuesdays between the hours of 6 pm and 10 pm; and
(ii) Fridays between the hours of 6 pm and 12 pm (midnight), to conduct club meetings.
(k) Motorcycle access to and from the premises is to be via Milford Street and Bank Street. Motorcycle access to and from Swansea Street is not permitted. The Club occupying the premises is to take all reasonable measures to ensure that visitors to the premises are aware that access to the premises to and from Swansea Street East is not permitted.
(l) Planning Approval does not remove the responsibility of the applicant to comply with all relevant building, health and engineering requirements of the Town, with any requirements of the Town of Victoria Park Town Planning Scheme No 1 or the requirements of any other authority.
I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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