Haggarty and Shire Of Dandaragan
[2006] WASAT 21
•2 FEBRUARY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: HAGGARTY and SHIRE OF DANDARAGAN [2006] WASAT 21
MEMBER: MS J SMITHSON (SESSIONAL MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 2 FEBRUARY 2006
FILE NO/S: DR 500 of 2005
BETWEEN: ARNOLD HAGGARTY
Applicant
AND
SHIRE OF DANDARAGAN
Respondent
Catchwords:
Town planning - Caretaker's dwelling - Industrial zone - Accommodation in industrial areas - Approval in principle sought - Considered as a planning application - Consideration as a use not listed - Incidental use - Jurien Bay townsite - Potential land use conflict - Existing unauthorised caretaker's dwellings in zone - Application dismissed
Legislation:
Shire of Dandaragan Town Planning Scheme No 6, cl 2.2.4, cl 2.2.7, cl 3.8
Draft Shire of Dandaragan Town Planning Scheme No 7
Town Planning and Development Act 1928 (WA), s 8A
Result:
1. Application for review dismissed
2. Decision under review affirmed
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr S Mastrolembo
Solicitors:
Applicant: Self-represented
Respondent: N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
These proceedings concerned an application for review of the Shire of Dandaragan's refusal to grant planning approval for the erection of a caretaker's dwelling in association with a proposed business within the Jurien Bay industrial area.
The application proposed the construction of a caretaker's dwelling in conjunction with the establishment of a boat business, on the basis that the nature of the business warranted the onsite security provided by such a dwelling.
The Shire refused the application because the proposed use was not permitted by the Shire's Town Planning Scheme and was contrary to the principles set out in the State Planning Strategy, specifically the provisions of a Western Australian Planning Commission Planning Bulletin 70 dealing with caretakers' dwellings.
The Tribunal was not satisfied that it was either permissible or desirable for approval to be given for the caretaker's dwelling. In particular, it would go against important avoidance of land use conflict principles.
The application for review was therefore dismissed.
Introduction
The applicant is Mr Arnold Haggarty, a director of Haggarty Nominees at Jurien Bay. The respondent is the Shire of Dandaragan.
The applicant proposes the construction of a caretaker's dwelling in conjunction with the establishment of what is described as a "boat business with secured hardstanding [sic] for pleasure craft and trailers" on lot 1133 Boullanger Way, Jurien Bay (site), which is situated in the Jurien Bay industrial area on land that is zoned "Industry" under the Shire of Dandaragan's Town Planning Scheme No 6 (TPS 6).
No details or plans have been provided of the existing business or the proposed caretaker's dwelling although the value of the proposed dwelling is given as $75 000.
The application has not been made in accordance with the prescribed application form contained in Appendix 3 of TPS 6. The Shire has advised that:
"[A] formal development application inclusive of detailed plans of the proposed 'Caretaker's residence' … have not been submitted. Mr Haggarty is seeking Council approval in principle for the proposed use".
The application has however been assessed by the Shire as an "Application for Planning Consent" under TPS 6 and the applicant was advised of the Council's decision not to grant planning consent and of a right of appeal (review) under the Town Planning and Development Act 1928 (WA).
For the reasons set out below in more detail, the Tribunal has determined that the application warrants refusal. In summary, these reasons are:
(i)There is insufficient information provided to approve the application in its current form;
(ii)The use is not listed as a permissible use in TPS 6 and there is insufficient justification provided to warrant its approval either as a "use not listed" under cl 2.2.4 or as an "incidental use" under cl 2.2.7;
(iii)As outlined in WAPC Planning Bulletin Number 70 (Bulletin 70), the establishment of residential communities in industrial areas is contrary to the principles set out in the State Planning Framework and has the potential to both create an unacceptable environment for residential living and impose constraints on the use of the land for industrial purposes;
(iv)Unlike the Dandaragan industrial area, TPS 6 does not contemplate caretaker's dwellings in the Jurien Bay townsite; and
(v)The development would create an undesirable precedent by permitting residential accommodation in the Jurien Bay industrial area.
The subject land and surrounds
The site has an area of 1867 square metres with a 40 metre frontage to Boullanger Way. Boullanger Way is a cul‑de‑sac.
According to an officer's report to Council, "there are several developments on this lot including a storage shed and showroom".
The same report also notes that:
"A recent inspection of the Jurien Bay industrial area has shown that there are currently several breaches of Town Planning Scheme No. 6 in relation to the use of industrial buildings for habitable purposes. The Manager of Building Services has written to the owners and asked that habitation cease".
The site adjoins a residential housing area contained within a residential zone only some 70 metres to the west. Further details of the locality have not been provided to the Tribunal.
The planning framework
As mentioned, the site is zoned "Industry" under TPS 6.
Reference is made in the papers to draft Shire of Dandaragan Town Planning Scheme Number 7 (TPS 7). It is understood that the site will be zoned "Industry" under TPS 7 and that the proposed use could be considered for approval under TPS 7 (see further below). However, advice was not provided to the Tribunal as to the status of TPS 7 other than it was in draft form. The Tribunal does not consider that TPS 7 is a "seriously entertained planning proposal" warranting its consideration by the Tribunal in these proceedings.
All other properties in Boullanger Way are understood to be zoned "Industry" as are properties to the north, south and east. Properties to the west are zoned "Residential" and appear to be separated from the "Industry" zone by a major road and public open space strip which is approximately 70 metres wide.
TPS 6 provides that uses within the various zones are determined by reference to the "Zoning and Development Table". Clause 2.2.4 provides that:
"[I]f a particular use is not listed in the use classes and is not included in the general terms of any use class, then the Council shall, upon application to it, determine either:
(a)that the use shall be prohibited within the Scheme Area; or
(b)that the use may be permitted within one or more of the zones in the Scheme Area subject to whatever conditions or development standards the Council deems necessary."
The use class of "Caretaker's Dwelling" is variously listed in different zones under TPS 6 as "Caretaker's House or Flat" (in the residential zone), as "Caretaker's Dwelling" (in the tourist, harbour and rural zones), and as "Caretaker's Dwellings" (in the community and special rural zones). It is defined in "Appendix 6 – Interpretations" as follows:
" 'Caretaker's Dwelling' means a building used as a dwelling by a person having the care of the building, plant, equipment or ground associated with an Industry, Business, office or recreation area carried on or existing on the same site."
The use is listed and permissible to varying degrees in a number of zones under TPS 6 but, importantly, it is not listed in the industry zone. The Shire argues that the use is therefore not permitted in the zone given that the use class is defined in TPS 6 and is listed in other zones. Therefore, the Shire submits that all uses defined in the scheme are prohibited if they are not listed in the zone.
An alternative interpretation of TPS 6 is that, for any particular zone, uses not listed can be approved under cl 2.2.4 or as an incidental use (see cl 2.2.7). This involves an exercise of discretion on behalf of the Shire involving an assessment of the merits of the application, and a determination as to whether the proposed use could be considered as incidental to the predominant use of the site.
Bulletin 70, dated November 24 is entitled "Caretaker's Dwellings in Industrial Areas". The stated purpose of the bulletin is to:
"[H]ighlight the issues associated with the establishment of Caretakers' dwellings in industrial areas in the State and to outline a policy for dealing consistently with this demand whilst acknowledging differences between regional areas."
Bulletin 70 states that the establishment of residential communities in industrial areas is contrary to the principles of the "State Planning Framework" imposing constraints on the industrial use of land and unacceptable living environments. The bulletin acknowledges that traditional caretakers' dwellings can address genuine operational and site security issues, but raises concerns that the high price and shortage of residential land in many areas of the State has encouraged proprietors to live and work from the same premises. This has resulted in a shift from the limited accommodation concept with the cumulative outcome being the creation of residential communities in industrial areas contrary to Government policy. This policy encourages a general presumption against residential uses in industrial areas other than in limited circumstances but does encourage local governments to acknowledge that where demand exists for caretakers' dwellings this should be addressed through composite zones which can accommodate such dwellings and industrial uses and/or designating light industrial zones where such dwellings may be permissible.
The Shire has appeared to partially redress the issues outlined in Bulletin 70 by permitting the development of a caretaker's dwelling in the industry zone within the Dandaragan townsite but not within the same zone in the Jurien Bay townsite. It will be recalled that the subject land is in the latter townsite.
The applicant's argument
The applicant argues that he needs the proposed caretaker's dwelling on lot 1133 for security reasons in connections with a boat business also proposed for the site. Mr Haggarty states:
"The yard would need a full time caretaker for insurance reasons as expensive equipment will be left on the premises, such as computers, plotters etc."
The applicant states that his research has indicated that most councils along the coast have allowed for this type of residence/business to operate and that it is a "well‑needed" business for the town, which would also add to employment.
Mr Haggarty argues that there is no provision of TPS 6 which states that the dwelling cannot be erected in the industrial area of Jurien Bay, citing cl 3.8 which enables the Shire to permit the use as incidental to the industrial use of the land. He also notes that such uses are permitted in the industry zone within the Dandaragan townsite.
Furthermore, it is claimed by the applicant that the site borders onto a residential area some 75 metres away where there are some 300 houses; that the site has been in the applicant's ownership for 25 years; and that there have never been any complaints about noise or dust as there are no industries in the area that would relevantly affect the amenity of the caretaker's residence.
The applicant also refers to proposed TPS 7 "due to be gazetted in the near future", which allows discretionary approval for a caretaker's dwelling in the town site within the Shire of Dandaragan. This would enable the Shire to give consideration to such an application and give approval where warranted.
Mr Haggarty goes on to submit that "at present, some people have no choice but to occupy their industrial premises which in many cases are sub standard for human habitation". Unfortunately, no information was provided to the Tribunal about the extent of, or the basis for, such habitation, although it is noted that the Shire is seeking to end any such habitation. The applicant does however advise that land for housing (that is, lots of 850 metres squared) may be purchased for $140 000 and that if the Council has any problems with caretakers' dwellings in the light industrial area, then they should rezone the area for residential use given that it borders a residential area.
The respondent's argument
The Shire raises the following as the basis for the refusal:
(i)A caretaker's dwelling is not a listed use within the industry zone in the "Development and Zoning Table" of TPS 6, but is listed as a use in other zones. This clearly means that the intent of the scheme is not to permit such a use within the industry zone. There is therefore no discretion for the Shire under cl 2.2.4 to approve the use.
(ii)TPS 6 allows for the provision of a caretaker's residence in the industrial area of the townsite of Dandaragan. There is no provision within the scheme for a caretaker's dwelling in other townsites.
(iii)The Council was mindful of Bulletin 70 and specifically the recommendations therein to discourage the establishment of such accommodation which would otherwise be contrary to the principles of the State Planning Framework, as it would allow residential units in an industrial area which could "create an unacceptable environment for residential living and furthermore place constraints on industries where land is zoned Industry".
(iv)A permanent residence of this nature would not be suitably located within the heaviest of the industrial areas of the Shire. Noise and dust would be of concern.
The issues for consideration
Accordingly, the following issues arise for consideration:
(1)Whether the proposed use can be approved as a use not listed under TPS 6;
(2)Whether the proposed use can be considered an incidental use to the industrial use of the property;
(3)Whether the development conforms with the requirements of Bulletin 70; and
(4)If, in light of these earlier issues, it is open to the Tribunal to grant approval in the exercise of its planning approval discretion, having regard to whether the impact of the proposed caretaker's dwelling on the industrial area is appropriate, or would create an unacceptable precedent.
The Tribunal will now consider each of these issues in turn.
Use not listed
The Tribunal accepts the Shire's interpretation of TPS 6, namely that if the intent was that a caretaker's dwelling were permissible in the industry zone then it would have been listed as such in the "Zoning and Development Table" of TPS 6 as one of the "Permissible Uses" in the industry zone. Further, reference can be made to cl 3.8 to Council not having a discretion to approve the use of a caretaker's dwelling as an incidental use within the industry zone in the Jurien Bay townsite (as that clause only permits a caretaker's dwelling in the industry zone within the Dandaragan townsite).
Accordingly, the Tribunal accepts that a discretion does not exist under TPS 6 to permit the use as a "use not listed" under cl 2.2.4.
Incidental use
Clause 2.2.7 gives the Shire a discretion to "relax the requirements" of the "Zoning and Development Table" in respect of a use that is incidental to the predominant use of the land. It could be said that the intent of this provision relates to the development standards contained within that Table as the permissibility of uses already includes "Incidental Use" as an option for each listed use. If, however, the Tribunal were to interpret the TPS 6 as permitting Council to consider any use, listed or otherwise, in any zone as an incidental use, there is insufficient information provided in the papers here to suggest that a caretaker's dwelling would be incidental to the predominant use of the site, given the site's limited size. Similarly, there is insufficient material to justify approval of the use under cl 2.2.7 based on the merits of the application.
Whilst the provisions of TPS 7 propose to give the Shire discretion to approve caretakers' dwellings as incidental uses anywhere in the industry zone, the status of the scheme is not known and its ultimate contents cannot be assumed. Furthermore, the Shire has indicated that the Jurien Bay industrial area is the "heaviest" of the industrial areas in the Shire, and that the use would therefore not be suitable, with dust and noise being of concern. Nevertheless, it would be open to the Shire to consider a new application under the provisions of TPS 7 when it comes into the fore. The applicant would then have to demonstrate that the proposed use could be developed to meet the Shire's concerns.
Consistency with WAPC Bulletin Number 70
Whilst Bulletin 70 recognises that Caretakers' dwellings can address genuine security issues, it alludes to the fact that the high price and shortage of residential land in some areas of the State has resulted in proprietors seeking to live and work from the same premises. The applicant refers to the high cost of living in the residential area, and to the number of dwellings established without approval in the Jurien Bay industrial zone. This appears to be consistent with the issues raised in Bulletin 70. It is noted that, in this instance, the site is in close proximity to a residential area and therefore the industrial area is not an isolated area.
Little information has been provided as to the security issues of concern to the applicant which would warrant the need for an on‑site caretaker. Whilst it is acknowledged that the business may entail use of external areas for boat building, other security measures could be considered. Furthermore, most businesses have computers and similar assets but few have caretakers' dwellings in order to protect them.
The Tribunal considers that a likely basis for the application is to provide accommodation as a cheaper alternative to that available in the nearby residential area and as such agrees with the Shire that the proposed development gives rise to the concerns identified in Bulletin 70 and as such any approval would be contrary to the recommendations contained in Bulletin 70.
Precedent
There is reference in the material before the Tribunal, to the existence of a number of unauthorised dwellings in the industry zone of the Jurien Bay townsite despite the close proximity of a residential area. It would appear that the Shire has maintained a position of determining that caretakers' dwellings are not permissible in this area, given the nature of the industrial area and, further, that they are addressing these unauthorised uses. To approve the proposed development in the absence of any substantiated justification, and given that the use is not listed as permissible in the zone would create, in the Tribunal's view, an undesirable precedent. This matter is also noted in Bulletin 70.
Findings and conclusion
For the reasons summarised below, the Tribunal has determined that the application warrants refusal. These reasons are:
(i)There is insufficient information provided to approve the application in its current form;
(ii)The use is not listed as a permissible use in TPS 6 and there is insufficient justification provided to warrant its approval either as a "use not listed" under cl. 2.2.4 or as an "incidental use" under cl. 2.2.7;
(iii)As outlined in WAPC Planning Bulletin Number 70, the establishment of residential communities in industrial areas is contrary to the principles set out in the State Planning Framework and has the potential to create both an unacceptable environment for residential living and the imposition of constraints on the use of land for industrial purposes;
(iv)Unlike the Dandaragan industrial area, the Scheme does not contemplate Caretakers' dwellings in the Jurien Bay townsite; and
(v)The development would create an undesirable precedent for permitting residential accommodation in the Jurien Bay industrial area.
Bulletin 70 recognises that, in regional areas in particular, the high price of residential land and the shortage of residential accommodation has encouraged business operators to live and work from the same premises. This can create land use conflict. The Shire has noted that residential uses have been established without approval in the Jurien Bay industrial areas and they say that they have taken steps to address this issue. The applicant notes that houses in Jurien Bay are at $140 000 and suggests the Shire should consider rezoning the area to "Residential" to address the issue of Caretakers' dwellings being established (without approval) in the industry zone.
The residential usage of land within the Jurien Bay industrial area operating without Shire approval is insufficient justification to permit the use of land zoned for industry to be used for accommodation as a cheaper alternative to the residential zone. Further, no justification has been offered for the proposition that the proposed business warrants an on‑site caretaker, particularly given the close proximity of residential areas. The claim of valuables such as computers being on‑site would be true for any business and is not unique to the business being proposed.
For these reasons, the application should be dismissed.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision under review is affirmed.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J SMITHSON, SESSIONAL MEMBER
0
0
3