HAPPY CRUISING PTY LTD and CITY OF GOSNELLS - [2023] WASAT 87

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   HAPPY CRUISING PTY LTD and CITY OF GOSNELLS [2023] WASAT 87
MEMBER:   MR R POVEY, MEMBER
HEARD:   15 AND 16 FEBRUARY 2023 (WRITTEN SUBMISSIONS DATED 12 MAY 2023, 27 JUNE 2023, 21 JULY 2023 AND 26 JULY 2023)
DELIVERED          :   21 SEPTEMBER 2023
FILE NO/S:   DR 181 of 2021
BETWEEN:   HAPPY CRUISING PTY LTD
Applicant
AND
CITY OF GOSNELLS
Respondent

Catchwords:

Town planning - Development application - Multiple activities - Proper approach to determining 'uses' - Classification of use - Whether proposed use is one use together, namely 'use not listed - commercial enterprise' - or separate uses, namely 'use not listed - garden centre', 'transport depot', 'storage' - Retail nursery - Hybrid use

Legislation:

City of Gosnells Local Planning Scheme No 6, cl 1.5, cl 1.5(d), cl 1.6(d), cl 3.1, cl 3.2, cl 3.3.1, cl 3.4, cl 3.4(1), cl 3.4.2, c 3.4.2b)

Dampier to Bunbury Pipeline Act 1997 (WA), s 41
Draft City of Gosnells Local Planning Scheme No. 24
Metropolitan Region Scheme, cl 26(1)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 1, Sch 2, cl 67(1), cl 67(2), cl 67(2)(w), cl 75(2)
Planning and Development Act 2005 (WA), s 68(1)(a), s 68(1)(b), s 252(1), s 256, s 257B(2),
State Administrative Tribunal Act 2004 (WA), s 18, s 24, s 26, s 27(1), s 27(2), s 29(3)(c)(i), s 32(1), s 32(2)(a), s 32(2)(b)
State Administrative Tribunal Rules 2004 (WA), r 39A

Town Planning and Development Act 1928 (WA) (repealed)

Result:

Application for review dismissed
Decision of respondent set aside and a decision substituted

Category: B

Representation:

Counsel:

Applicant	:	Ms B Moharich
Respondent	:	Mr D McLeod

Solicitors:

Applicant	:	Moharich & More
Respondent	:	McLeods

Cases referred to in decision:

Bright Image Dental Pty Ltd v City of Gosnells [2017] WASC 229
Foodbarn v Solicitor General (1975) 32 LGRA 157
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431
Happy Cruising Pty Ltd v City of Gosnells [2023] WASCA 112
Humich and City of Gosnells [2008] WASAT 298
Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94
Reid v City of Gosnells [2023] WASC 48
Reid v Western Australian Planning Commission [2023] WASC 110
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Warden and Town of Mosman Park [2019] WASAT 88
West Australian Shalom Group Inc and City of Joondalup [2023] WASAT 63

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This decision deals with an application for review made under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for the review of the City of Gosnells' (respondent or City) deemed refusal[1] to grant development approval for an application at No 219 (Lot 507) Kelvin Road, Orange Grove (subject site), which the respondent says constitutes a 'Retail nursery', 'Transport depot' and 'Storage'.[2] 'Transport Depot' and 'Storage' uses are prohibited ('X')[3] uses at the subject site under the City of Gosnells Local Planning Scheme No 6 (LPS 6) and this is the basis upon which the respondent contends the development should be refused.
[1] Deemed refusal arises pursuant to cl 75(2) of the Planning and Development(Local Planning Schemes)Regulations 2015 (WA) (LPS Regulations), Sch 2 (Deemed Provisions).
[2] Respondent's Amended Statement of Issues, Facts and Contentions (ASIFC), paras 1.1, 1.2 and 1.4, Exhibit 2. In November 2018, a retail nursery was previously approved by the respondent at the subject site - Respondent's Substitute s 24 Bundle of Documents, pages 98 - 108, Exhibit 3. However, it appears this land use never commenced operation - see ts 116, 16 February 2023.
[3] The Deemed Provisions, at cl 1, define that a class X use, 'in relation to a zone means a use identified in the zoning table for this Scheme (regardless of the symbol used) as a use that is not permitted in the zone'.
However, Happy Cruising Pty Ltd (applicant) says the mix of uses for which approval is sought does not neatly fall within the existing land use classifications under LPS 6 and the applicant seeks approval for the development (which involves 'works' and 'land use') on the basis the mix of uses are an innominate use[4] (or a 'use not listed'). In the application forms, the applicant describes the proposed development as a 'Commercial enterprise'.[5] However, the development is later described by the applicant's town planner, Mr Hofland, as a 'contractors yard and landscaping business'.[6] These uses are not identified in LPS 6.
[4] The details of the development are described at [20] - [27].
[5] Respondent's Substitute s 24 Bundle of Documents, pages 181 - 182, Exhibit 3. The two application forms are Application for Development approval under LPS 6 and Application for Planning Approval under the Metropolitan Region Scheme (MRS).
[6] Respondent's Substitute s 24 Bundle of Documents, page 231, Exhibit 3.
Therefore, at the heart of this Application for Review is the question of the correct classification of the land use (or uses) in this development.
In these reasons, I will firstly outline the Tribunal's review jurisdiction and then describe the final hearing (hearing), the evidence and the planning framework. Then I will describe the proposed development, the subject site and the locality and summarise the procedural history. Finally, I will set out, and then consider and determine, the two issues that arise in this proceeding.
For the reasons given below, I have determined that 'the correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion is to dismiss the application for review and to substitute a decision to refuse the development.

The Tribunal's review jurisdiction

The Tribunal's review jurisdiction in planning matters is usefully set out in Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94 at [27] - [30] and, for completeness, is set out below:[7]
27By reason of s 17 of the SAT Act, the application falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter).[8]
28The Tribunal is to review the Shire's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it.[9]
29The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[10] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[11]
30The Tribunal is not limited to the material before the Shire as the original decision-maker but may consider new material.[12] The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[13] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.
[7] M Barton, M Povey and SSM Curry.
[8] SAT Act, s 18.
[9] SAT Act, s 27.
[10] SAT Act, s 32(2)(a).
[11] SAT Act, s 32(1).
[12] SAT Act, s 27(1).
[13] SAT Act, s 32(2)(b).

The hearing and evidence

Prior to the hearing the applicant, on 4 November 2022, sought and was granted leave by the Tribunal to substitute the plans. The applicant filed a substituted site plan on 8 November 2022.[14] This site plan forms the basis for the development, now the subject of this review.
[14] Respondent's Substitute s 24 Bundle of Documents, pages 283 - 284, Exhibit 3. The substituted site plan was necessary because approval of the development was required by the DBNGP Land Access Minister under s 41 of the Dampier to Bunbury Pipeline Act 1997 (WA) and this required modifications to be made to the application refused by the respondent on 23 September 2021. Conditional approval by the DBNGP Land Access Minister was received for the proposed development on 27 September 2022, see Respondent's Substitute s 24 Bundle of Documents, pages 279 - 282, Exhibit 3.
Each party filed and gave to the other party a Statement of Issues, Facts and Contentions (SIFC).[15] The respondent filed a bundle of documents under s 24 of the SAT Act and the applicant also filed a bundle of documents with the Tribunal.
[15] Respondent's Amended SIFC (ASFIC) (Exhibit 2) was filed following the applicant's Substituted Site Plan.
The hearing was conducted on 15 and 16 February 2023. At the hearing I heard evidence from two town planning experts, Mr Brenton Scambler, a town planner employed by the City in the position of Coordinator of Planning, called on behalf of the respondent, and Mr Jeremy Hofland, a town planning consultant with Rowe Group, called on behalf of the applicant. Mr Scambler and Mr Hofland also filed witness statements with the Tribunal which they adopted as their evidence-in-chief and were cross-examined.
At the commencement of the hearing, together with the counsel for the parties, the town planning experts, and the director of the applicant, I attended a view of the subject site and the immediate surrounds.
After the hearing concluded it was necessary, as I will detail later, for the Tribunal to invite further submissions from the parties, with the last of the submissions filed on 26 July 2023.[16]
[16] See [74] - [78].
It is also necessary, at this point, to say something of the evidence of the planning experts in this case. An expert's overriding obligations to the Tribunal are set out in r 39A of the State Administrative Tribunal Rules 2004 (WA):
An expert at a hearing, …, has these paramount duties as to matters within their expertise —
(a)to be impartial and independent;
(b)to assist the Tribunal;
(c)not to be an advocate for the party that has engaged[.]
However, possibly due to the protracted nature of this proceeding and the events leading up to it,[17] the evidence of the experts in this case I consider is coloured by its history. Aspects of the evidence do not assist the Tribunal or, in my view, verge on advocacy for the party engaging the witness.
[17] See [40] - [53].
This includes the oral evidence of Mr Hofland, where he states, 'he [the director of the applicant] wanted a new approval. So that's where we've focused our efforts'.[18] Given this, in my view, much of Mr Hofland's evidence should be considered against a backdrop approaching advocacy.
[18] ts 110, 16 February 2023.
Further, Mr Hofland's written evidence that vehicles and equipment would be parked on site during Christmas and Easter shutdowns or when between contracting jobs[19] contrasts with his oral evidence, under cross-examination, where he states, '[t]here's a lot of the machinery and other equipment, other activities have been relocated out of there [the subject site] until this application can be determined. The client is trying to avoid any potential prosecution action or further matters'.[20]
[19] Witness Statement of Jeremy Hofland, para 132, Exhibit 8.
[20] ts 93, 16 February 2023.
An important element of Mr Scambler's evidence is also of limited assistance to the Tribunal. Under cross-examination, he accepts his witness statement does not reveal his reasoning for land use classification.[21] I accept the applicant's submission that this is a significant oversight because, as mentioned, land use classification is at the heart of this Application for Review.
[21] ts 52, 15 February 2023.
Mr Scambler also concedes under further cross-examination, correctly in my view, that one of the uses which he asserts will be present in the development ('Retail nursery'), is not in fact what the applicant proposes, and this use cannot therefore be correctly classified a 'Retail nursery' under LPS 6.[22]
[22] ts 74 - 75, 15 February 2023.
The importance of reasoning in the evidence of an expert witness is highlighted in Warden and Town of Mosman Park [2019] WASAT 88 at [79] where the Tribunal[23] observed:
… The Tribunal considers both experts were trying to be helpful to the Tribunal, but nonetheless, it is not helpful to have statements of conclusions reached by an expert without a sufficiently thorough explanation of the process or methodology used to allow the Tribunal to understand how the conclusions were reached. It is not for an expert to answer the ultimate question before the Tribunal, it is for the Tribunal to do so. If the Tribunal cannot understand the approach taken and the reasoning followed, it cannot analyse and evaluate those things in order to reach its ultimate determination[.]
[23] SM Eddy and M P De Villiers.

Planning framework

The relevant planning framework, which I have considered in determining the application includes:
a)Metropolitan Region Scheme (MRS);
b)Dampier to Bunbury Pipeline Act 1997 (WA) (DBP Act);
c)LPS 6, which incorporates the Deemed Provisions and includes the relevant matters under cl 67(2) of Sch 2;
d)Draft City of Gosnells Local Planning Scheme No.24 (Draft LPS 24);
e)City of Gosnells Local Planning Policy 1.2 – Rural Development (LPP 1.2);
f)City of Gosnells Draft Local Planning Strategy (Draft LP Strategy); and
g)City of Gosnells Review of Foothills Rural Strategy (2004) (FRS).[24]
[24] The FRS was reviewed by the City in November 2016, Applicant's Bundle of Documents, pages 1 - 49, Exhibit 7.

The development

The parties agree, and I find, the development seeks approval for 'works' and 'use' at the subject site.
The general extent of the works is agreed and, I find, is depicted on the applicant's substituted site plan[25] and involves:[26]
a)26 bays for landscaping supplies (a series of concrete enclosures with each bay 4 metres wide, 4 metres deep and 1.2 metres high);
b)Installation of bollards to restrict vehicle access to the approved crossing points on the subject site, associated with the access restrictions over the Dampier to Bunbury Natural Gas Pipeline (DBNGP);[27]
c)A 'potting shed' comprising sea containers, with an arched cover over, located near the eastern corner of the subject site;
d)A hardstand area for 'layover vehicles', adjacent to the potting shed, in the south-eastern (rear) portion of the site.
e)Placement of fill in the southern portion of the subject site to a maximum depth of 2.2 metres (towards the southern corner of the subject site). This includes filling within and adjacent to the DBNGP easement. The fill is to be battered down to natural ground level.
[25] Respondent's Substitute s 24 Bundle of Documents, page 283 - 284, Exhibit 3.
[26] Witness Statement of Jeremy Hofland, para 40, Exhibit 8.
[27] See [32] for details of the DBNGP easement restrictions on the subject site.
An area of hardstand (previously approved) in the northern portion of the subject site (within the front half) is identified to be used 'for display area'.
The applicant says the development involves a hybrid set of land uses undertaken by various entities related to the applicant, using overlapping equipment and occurring in various parts of the subject site. The uses are described as:[28]
(a)propagation of plants (potting shed);
(b)the growing and display of plants (on the hardstand at front of the subject site);
(c)the storage of various pieces of equipment and heavy vehicles used by the various businesses that operate from the site, when not on-site at a job;
(d)the storage of landscaping supplies for the various businesses;
(e)the retail sale of landscaping supplies to the public;
(f)the retail sale of plants to the public; and
(g)the use of the plants in large commercial landscaping projects.
[28] Applicant's SIFC, para 3.5A, Exhibit 6.
In respect to the land uses, the application documentation describes the application as relating to:[29]
… the operation of a commercial enterprise at the subject site which involves the retail sale of agricultural/gardening supplies (i.e. trees, mulch and soil) and layover of trucks and equipment associated with [the applicant's] businesses involved in major municipal/subdivision landscaping projects.
The types of operations of each company are similar, and therefore the same equipment can be used by multiple companies within the group, as the need arises.
[29] Respondent's Substitute s 24 Bundle of Documents, page 129, Exhibit 3.
The application documentation identifies the applicant intends to operate a number of businesses from the subject site as follows:[30]
a)Dynamic Civil WA, a business owned by Goldriver Holdings Pty Ltd. The business undertakes the preparatory works for forward works associated with major municipal/subdivision landscaping projects (i.e., the preparatory earthworks, injectable grouting, limestone block work, subsoil drains and other groundworks) within the Perth metropolitan and Regional areas.
b)Shorepile Pty Ltd, this business undertakes piling works for the construction industry.
c)MiniMAX Nursery and Soil Supplies WA, a business owned by Happy Cruising Pty Ltd.[31] It is intended that once this operation is in place, the trees would form part of a separate but related business to the Dynamic Civil WA business, whereby the trees are either sold by MiniMax by retail or will be used by Dynamic Civil WA in commercial landscaping projects.
[30] Respondent's Substitute s 24 Bundle of Documents, pages 128 - 129, Exhibit 3.
[31] A previously approved retail nursery was applied for on behalf of MiniMAX to sell mature trees and grass trees for landscaping purposes from the subject site - see also [41].
The respondent accepts it is not the various companies (or their common relationship with the director of the applicant) that is the focus of this Application for Review, rather it is, 'what uses would occur on the [subject] site if the application is approved. That's the relevant question from a land use planning point of view'.[32] I agree this the appropriate approach in this case.
[32] Respondent’s closing submissions, ts 148, 16 February 2023.
As to the operation of the development, Mr Hofland's evidence is the development will involve:[33]
a)A total of two staff employed full time (consisting of the property owner and the administration officer) at the subject site, and a further nine staff are employed on the subject site to the extent they collect a work utility. One field servicing technician will attend the subject site two to three days per week to perform servicing on vehicles and plant and equipment.
b)The hours of operation are seven days a week from 8.00 am to 5.00 pm.
c)The heavy vehicles and machinery associated with the enterprise are typically to be kept on project sites for the duration of the contract. Once completed, the machinery is transported directly to the next project. It would typically only return to the subject site in circumstances where it required minor repair, over holiday breaks (i.e. between Christmas and New Year), or when between contracts, although it would be more usual to go directly from one contract to the next without the equipment being brought back to the site).
d)If heavy vehicles and associated machinery are required to be brought back to the subject site, they would be positioned on the hardstand area at the rear of the office and workshop.
[33] Witness Statement of Jeremy Hofland, para 38, Exhibit 8.

Subject site

The subject site is located approximately 4 kilometres from the Gosnells Town Centre and 19 kilometres from the Perth CBD. It is located at the eastern corner of the intersection of Tonkin Highway and Kelvin Road. This four-way intersection is controlled by traffic signals.
The subject site has a land area 1.7948 hectares. It has a slope of approximately 6.5 metres downward from the Kelvin Road frontage to the southernmost corner. It currently contains an existing shed building (presently used as an office and workshop) of approximately 508m,² setback 4 metres off the northeast boundary and approximately 130 metres from the Kelvin Road street boundary.[34] It also contains hardstand, manoeuvring and parking areas.
[34] Respondent's Amended SIFC, paras 2.1 - 2.2. Exhibit 2.
The subject site is more particularly known as Lot 507 being the whole of the land on Deposited Plan 32253 within Certificate of Title Volume 1556 and Folio 380.[35] It is approximately rectangular in shape with a front boundary of 65.47 metres to Kelvin Road and side boundaries of approximately 251 metres. The length of the rear boundary is 77.39 metres.
[35] Respondent's Substitute s 24 Bundle of Documents, pages 94 - 97, Exhibit 3. This includes the superseded certificate of title (pages 96 - 97) which includes the sketch of the subject site.
The zoning of the subject site is 'Rural' under the MRS and 'General Rural' under LPS 6.
The subject site is burdened by an easement, approximately 30 metres wide, extending for the south-western length of the property (abutting Tonkin Highway) and occupying approximately 7,576m² of the subject site. This easement contains the Dampier to Bunbury Natural Gas Pipeline (DBNGP).[36] The applicant has sought and obtained conditional approval from the DBNGP Land Access Minister under s 41 of the DBP Act to undertake works within (and to use) the easement to facilitate the development.[37]
[36] Respondent's Amended SIFC, para 2.4, Exhibit 2.
[37] Respondent's s 24 Bundle of Documents, pages 279 - 282, Exhibit 3.

The locality

At the hearing the applicant provided a context plan.[38] This plan shows the extent of the Rural Planning Precinct No 4 – Kelvin Road Precinct (Precinct 4) which is identified in the FRS.[39] The subject site is located in Precinct 4 (at the south-east corner).
[38] Exhibit 10.
[39] As approved by Council on 22 November 2016, Respondent's ASIFC, para 2.52, Exhibit 2 and contained at Applicant's Bundle of Documents, pages 1 - 50, Exhibit 7.
Mr Scambler, in his witness statement adopts the description of the locality in the respondent's ASIFC, however this does not describe an extent of the locality.[40] Under cross-examination Mr Scambler says the extent of the locality is Precinct 4, identified in the FRS.[41]
[40] Witness Statement of Brenton Scambler, para 3.2 and Respondent's Amended SIFC.
[41] ts 51, 15 February 2023.
Mr Hofland, in his witness statement identifies certain elements which he considers to be within the locality. This includes the Maddington Kenwick Strategic Employment Area, located on the opposite side of Tonkin Highway, to the south-west.[42] Mr Hofland also says the locality includes 10 other properties surrounding the subject site which he considers to be within the locality.[43] Each of these 10 properties, except for No 102 Dale Place, which abuts the rear of the subject site, are within Precinct 4.
[42] Witness Statement of Jeremy Hofland, para 91, Exhibit 8.
[43] Witness Statement of Jeremy Hofland, para 93 and Annexure JH8, Exhibit 3.
Mr Scambler, in oral evidence, says he would not include the Maddington Kenwick Strategic Employment Area because Tonkin Highway forms a 'pretty extensive divide'.[44]
[44] ts 45, 15 February 2023.
The locality also includes a large site proposed for the City's new Operations Centre (located on the opposite side of Kelvin Road, further to the north).[45] The proposed Operations Centre is referred to later at [74] - [78].
[45] The site of the City's proposed Operations Centre is identified as bounded in red on the Context Plan, Exhibit 10.
When determining the locality, Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity) at [42] states:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
Considering the principles outlined in Ridgecity and the evidence of the planning experts, the boundaries of the locality in this case are, in my view, Tonkin Highway, properties both sides of Kelvin Road extending from the subject site to the intersection with White Road, and the site at No 102 Dale Place (which abuts the rear (south-eastern) boundary of the subject site). The locality does not extend beyond Tonkin Highway into the Maddington Kenwick Strategic Employment area, in my view, because I accept the evidence of Mr Scambler that Tonkin Highway is a significant dividing barrier and there is not a connection with this area or any amenity impact identified that is associated with the development.[46]
[46] Consideration of the impact of the development on the amenity of the locality only arises once the threshold issue of land use classification is determined; See Issues for determination at [54] - [55].

Summary of procedural history

This matter has a long and somewhat protracted history.[47]
[47] The history of the subject site where the development is located is a relevant consideration under cl 67(2)(w) of the Deemed Provisions.
On 5 November 2018, the applicant received development approval for the proposed development of a 'Retail nursery' use at the subject site. This approval also included works, being a large shed (35 metres x 16 metres), bitumen car parking bays and a nursery display area.
The shed was constructed. However, it is not being used for the purposes of accommodating plants for the retail nursery but is used as a workshop to undertake servicing and maintenance of vehicles associated with the businesses carried on at the subject site and for storage of vehicle and machinery spare parts and for office accommodation.[48] On the evidence before me, it appears the 'Retail nursery' use never commenced at the subject site.[49]
[48] Respondent's Amended SIFC para 2.12 - 2.15, Exhibit 2.
[49] ts 112 - 113 and 116, 16 February 2023.
The subject site has been utilised to store a range of materials and plant and equipment associated with the various businesses being operated from the subject site. The respondent says the materials stored include but are not limited to steel pipe, steel plate, steel sheet piles, steel beams, pallets, and machinery attachments (buckets, boom and hydraulic equipment) and large stockpiles of sand and gravel stored at the rear of the site. Vehicles, including trucks and trailers, machinery and equipment, are parked and stored in a hardstand area constructed in the south-west area, immediately west of the shed, at the front of the site.[50]
[50] Respondent's ASIFC, para 2.14, Exhibit 2.
The applicant says most of the equipment has been moved off-site and is now being stored elsewhere pending a determination of this matter and that the material stored on site is intended for fill and hardstand which are part of the works proposed on the subject site.[51]
[51] Applicant's SIFC, para 2.14, Exhibit 6. Also, at the view (at the commencement of the hearing on 15 February 2023) I observed most of the materials and equipment was not present at the subject site.
In September 2019, because of a complaint, the City undertook an inspection which revealed the shed on the subject site (the subject of the 2018 development approval) together with a bitumen driveway and parking area at the front of the subject site had been constructed. However, the respondent says the subject site (including the shed) was not being used for a retail nursery as approved in 2018, but rather as a depot to lay down of vehicles, machinery and equipment, including prime movers, tip trucks, earth moving machinery and sheet piling equipment.[52]
[52] Respondent's Amended SIFC, para 2.17, Exhibit 2.
The City continued to monitor the activities at the subject site and on 11 March 2020 wrote to the applicant advising the property must be brought into compliance with LPS 6 within 14 days. In June 2020, the City commenced prosecution action, which ultimately lead to the applicant being convicted of two offences on 10 May 2021. The applicant was sentenced for those offences on 16 June 2021.[53]
[53] Prior to determination of the development application by the City, further enforcement action was commenced by the City relating to the same complaints as the 2020 prosecution. At the hearing for the matter in the Magistrate's Court on 18 January 2022, there was no appearance for the applicant and a conviction was entered and 5 February 2022 was set as the hearing date as to penalty, see Respondent's ASIFC para 2.30, Exhibit 2. The conviction in this matter was subject of appeal by the applicant. On 17 July 2023, the Court of Appeal delivered its decision in Happy Cruising Pty Ltd v City of Gosnells [2023] WASCA 112, which resulted in the appeal being dismissed.
On (or about) 28 April 2021 the applicant lodged a development application for a 'Commercial enterprise' (a use not listed). The development application also includes various works.[54] This application was referred to Main Roads Western Australia (MRWA). MRWA advised (by email dated 28 June 2021) that additional information was required and that it was not in a position to support the development until that information has been received and reviewed.[55]
[54] The description of the development (the subject of this review) is at [20] - [27].
[55] Respondent's ASIFC, paras 2.44 ‑ 2.45, Exhibit 2 and Respondent's Substituted s 24 Bundle of Documents, page 203.
The application was also referred to DBNGP (WA) Nominees Pty Ltd (which has management responsibility for the DBNGP), due to the presence of the DBNGP within the subject site. DBNGP (WA) Nominees Pty Ltd advised they did not support the application and referred the application to the Department of Planning, Lands and Heritage (DPLH) who manage the DBNGP corridor under the DBP Act. By letter of 30 July 2021, DPLH (on behalf of the DBNGP Land Access Minister) advised that it does not in-principle support the proposed development outlined in the application.[56]
[56] Respondent's Substitute s 24 Bundle of Documents, pages 211 - 212, Exhibit 3.
On 2 September 2021, the applicant lodged an Application for Review with the Tribunal on the basis of a deemed refusal under LPS 6.[57]
[57] A deemed refusal arises pursuant to cl 75(2) of the Deemed Provisions.
On 23 September 2021, the respondent refused to grant development approval to the development. In doing so, the respondent classified the land uses as 'Transport Depot and Storage' and advised its reasons for refusal being:[58]
1.The proposed operations and associated hardstand and storage of materials, machinery and heavy vehicles are considered 'Storage' and 'Transport Depot' land uses which are not permitted in the General Rural zone.
2.The proposal contravenes the easement registered on the title in relation to the commercial activities occurring within the easement area.
[58] Respondent's Substitute s 24 Bundle of Documents page 224, Exhibit 3.
Notwithstanding the determination on 23 September 2021, the respondent accepts the basis of this Application for Review is the deemed refusal.[59] I accept this is the case, because by the time the City issued its refusal it was functus officio by virtue of s 26 of the SAT Act.
[59] Respondent's ASIFC, para 2.60, Exhibit 2.
Following receipt of the DPLH advice (dated 30 July 2021), the applicant negotiated further with the DBNGP operator and the DBNGP Land Access Minister. After a considerable period of negotiation, on 27 September 2022, a modified proposal was granted conditional approval under s 41 of the DBP Act. This approval allows for specified works and provides conditions for access over the DBNGP (within the easement on the subject site).[60]
[60] Respondent's Substitute s 24 Bundle of Documents, pages 279 - 282, Exhibit 3.
On 4 November 2022, the applicant sought, and was granted, leave by the Tribunal, to substitute the modified plan which had received conditional approval from the DBNGP Land Access Minister. This plan forms part of this Application for Review.

Issues for determination

Although the parties identify five issues,[61] there are, in effect, two issues requiring determination by the Tribunal in this review.[62] The two issues are:
1.Whether the development is correctly classified under LPS 6 as separate land uses, 'Retail nursery', 'Storage' and 'Transport depot', or is correctly classified one combined use being, a 'Use Not Listed – Commercial enterprise'.
2.If the development is a 'Use Not Listed – Commercial enterprise', whether the development should be approved in the circumstances of this case.
[61] Respondent's ASIFC, para 1, Exhibit 2 and Applicant's SIFC, para 1, Exhibit 6.
[62] The two issues were outlined in opening submission by the respondent, ts 23 - 24, 15 February 2023 and affirmed in the applicant's opening submissions, ts 30, 15 February 2023 and the applicant's closing submissions, ts 128, 16 February 2023.
Issue 1 involves land use classification, and the parties accept land use classification is a threshold issue which needs to be considered and determined first. The answer to Issue 1 will determine if I need to proceed to Issue 2.
Before turning to the issues, I will outline the operation of the MRS. I will also briefly outline the operation of LPS 6 in respect to land use classification, and then the proper approach to identifying land uses, drawing on the recent decision of her Honour Archer J in Reid v City of Gosnells [2023] WASC 48[63] (Reid). I will also briefly outline the further relevance of Reid in this case because it relates to the City's proposed Operations Centre (proposed within the locality).
[63] For completeness, another decision, Reid v Western Australian Planning Commission [2023] WASC 110, delivered by her Honour, Archer J also on 5 April 2023, while also relating to the proposed City of Gosnells Operations Centre in Kelvin Road, addresses the validity of development approval under the MRS, and is not directly relevant for the present purposes of considering land use classification under a local planning scheme, such as LPS 6.

The operation of the MRS

The operation of the MRS is set out in the recent Tribunal[64] decision West Australian Shalom Group Inc and City of Joondalup [2023] WASAT 63 (Shalom) at [111] - [116] and is relevant to this case because the applicant has applied for development approval under the MRS and LPS 6. The subject site is zoned 'Rural' under the MRS. As identified in Shalom at [125], cl 26(1) of the MRS has the effect that an approval given by the local government under a local planning scheme on zoned land 'shall be deemed' to be an approval under the [MRS]. Although approval under the MRS is required for the development, these proceedings relate to the deemed refusal under LPS 6.[65] Therefore, what follows focuses on LPS 6 to determine whether approval under that Scheme is the correct and preferrable decision in this case.
[64] SM Willey.
[65] Respondent's ASIFC, paras 1.1 - 1.5, Exhibit 2 and Applicant's SIFC paras 1.1 - 1.5, Exhibit 6.

The operation of LPS 6

LPS 6 is a local planning scheme prepared under the former Town Planning and Development Act 1928 (WA) and continued pursuant of s 68(1)(a) of the PD Act. LPS 6 commenced on 15 February 2002 and has force and effect as if were enacted by the PD Act.[66]
[66] PD Act, s 68(1)(b).
Pursuant to s 256 of the PD Act the Planning Minister has prepared regulations for local planning schemes, including the Deemed Provisions. By reason of s 257B(2) of the PD Act (together with reg 8(1)(c) and reg 10(4) of the LPS Regulations), the Deemed Provisions have effect and may be enforced as part of each local planning scheme. The Deemed Provisions form part of LPS 6.
Clause 1.5 sets out the purpose of LPS 6. The purpose includes controlling and guiding land use and development.[67] The aims are inter alia to ensure the orderly and proper use and development of land within the District.[68]
[67] Clause 1.5(d) of LPS 6.
[68] Clause 1.6(d) of LPS 6.
Clause 3.1 of LPS 6 classifies the Scheme Area into the zones as shown on the Scheme Map. Clause 3.2 provides that the objective of the 'General Rural' zone is:
To provide for a range of rural pursuits which are compatible with the capability of the land and retain the rural character and amenity of the locality.
Clause 3.3.1 of LPS 6 provides that the Zoning Table (Table 1) indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme Area in the various zones.
Clause 3.4 of LPS 6 addresses interpretation of Table 1. Clause 3.4.1 provides that where a specific use is mentioned in Table 1 it is deemed to be excluded from the general terms used to describe any other use.
Clause 3.4.2 deals with uses that are not listed in Table 1 and provides as follows:
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 procedures of clause 64 of the Planning and Development (Local Planning Scheme) Regulations 2015 Schedule 2 in considering an application for planning approval; or
c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
In this case, the applicant submits the FRS is important in the planning of the locality. Ms Moharich, counsel for the applicant, submits objective 2 of Precinct 4 in the FRS is relevant.[69] It states:[70]
Provide a flexible approach to land use having regard to the historical development of the Precinct with rural-industrial type uses by:
1.Applications for development approval will be assessed on their planning merit in accordance with the City's Town Planning Scheme, having due regard for the compatibility of the use or development with its setting.
2.Managing land use through appropriate location and design where the potential for land use conflict may occur.
[69] ts 129, 16 February 2023.
[70] Applicant's Bundle of Documents, page 47, Exhibit 7.
Ms Moharich accepts the development is to be assessed on its planning merit against LPS 6,[71] but submits objective 2 of Precinct 4 in the FRS supports a flexible approach to land uses, considering the difference in nature of Precinct 4.[72]
[71] ts 129, 16 February 2023.
[72] ts 34, 15 February 2023.
While I accept what is stated in the FRS, it is clear is that applications for development approval are to be considered on planning merit in accordance with LPS 6. LPS 6 is, therefore, the starting point in this case.

The proper approach to identifying uses

Her Honour Archer J in Reid at [234] - [237] identifies what she considers the proper approach to identifying land uses, which I accept and gratefully adopt in these reasons. This involves four steps (original emphasis, citations omitted).
234The first step is to determine whether a particular activity is properly characterised as an activity that will occur as part of another use or as a use in its own right. An activity in the former category may influence the proper classification of the use of which it is a part, but will not itself be a separate use.
235The second step is to determine which classification of 'use' in the Zoning Table would apply to each use, if assessed individually.
236If there are multiple uses in the proposed development, the third step is to determine whether the combination of uses (or the combination of a subset of uses) transforms the nature of those uses such that they are together only one use.
237The fourth step depends on the answer to the third step:
1.if the answer to the third step is that the combination did transform the nature of those uses such that they are together only one use, the fourth step is to determine which classification of 'use' in the Zoning Table applies to the resulting single use;
2.if the answer to the third step is that the combination did not have the effect that the uses together are only one use, the fourth step is:
a.to determine whether the combination of uses transform the nature of one or more of the individual uses such that it (or they) should be regarded as a different use; and
b.if the combination does have the effect that one or more of the individual uses should be regarded as a different use, to determine which classification of 'use' in the Zoning Table applies to that different use.

The parties differ in their approaches to the classification of land uses in this matter. The applicant's starting position is that none of the activities which are proposed to occur on site can be considered uses in their own right.[73] The applicant submits that it is impossible to disaggregate the activities proposed to occur on site because none of the activities would occur in isolation and are part of an integrated endeavour – that is, the vehicles, trees and landscaping supplies are all used to allow the operation of the site for the civil works business which is proposed.[74]
[73] Applicant's further submissions addressing the Reid decisions, para 7.
[74] Applicant's further submissions addressing the Reid decisions, para 8.
At the hearing, the respondent's position to land use classification in this matter was put succinctly in this closing submission from Mr McLeod, counsel for the respondent:[75]
… You've got to look at the activities which will occur on the subject land to deal with the classification exercise. It's mind-numbingly obvious that activities in connection with any business that occur off this [site], remote from the subject land, are irrelevant to the identification of and the classification of the land uses for that business which occur on the subject land. You need only look at the classification exercise, the activities of the business that occur on the subject land. They are key and can't be ignored.[.]
[75] ts 165, 16 February 2023.
I accept the respondent's submission that, as a starting point, it is necessary to identify and examine each of the activities that are proposed to occur as part of the development on the subject site. This is consistent with the approach adopted by her Honour, Archer J, in Reid.
It is not correct, in my view, to approach the identification of activities with a pre-formed perspective as to whether the activities constitute a use in their own right or indeed whether together, they are an innominate use, a use not listed, as the applicant asserts.
It is necessary to undertake a methodical examination and analysis. In this case, it requires consideration of the facts and the evidence and an examination of the development using the four-step approach adopted in Reid.

Further relevance of Reid in this case

At this point, it is also necessary to outline the further relevance of Reidin this proceeding. Reid relates to a proposal by the City to establish its new Operations Centre at a site within the locality of this matter, albeit further north along, and on the opposite side of, Kelvin Road. The Operations Centre proposal is identified by Mr Hofland in his evidence,[76] when considering the character of the locality, and was the subject of oral evidence and submissions at the hearing and in subsequent written submissions which were invited by the Tribunal.
[76] Witness Statement of Jeremy Hofland, paras 103 - 109, Exhibit 8.
In Reid, although the City in granting development approval for the Operation Centre under LPS 6 had characterised the operations centre a 'Civic Use', her Honour found (among other things) that the development involved separate uses which included a 'Civic Use', a 'Kennels Use' (the animal facility) and an 'Industry – Noxious Use (the green waste grinding) and that the latter two are prohibited ('X') uses at that site.[77]
[77] Reid at [553].
In summary, the effect of Reidwas to find invalid the development approval for the Operations Centre granted by the City under LPS 6 because several of the activities to be established at the proposed Operations Centre are standalone land uses which are prohibited ('X') uses in the General Rural zone under LPS 6 and as such, the City did not have power to grant approval. It was on this basis the development approval was quashed.[78]
[78] Applicant's Further Submissions Addressing the Reid decisions, para 4.2.
As Reid was delivered after the hearing in this matter, I issued orders on 19 April 2023 inviting the parties to make submissions as to its relevance (and for responsive submissions to also be made).[79] Mr McLeod and Ms Moharich in their submissions agree two aspects of relevance arise from Reid, although it should be said the submissions differ as to their positions.
[79] The last of these submissions was filed on 26 July 2023.
The two relevant aspects are first, the findings of her Honour as to the way different activities are properly classified as land uses[80] and second, the effect of the result (quashing the development approval) on consideration of the amenity of the locality in this case.[81] I agree the two aspects are relevant. Amenity is a consideration which becomes relevant if it is necessary to address Issue 2.
[80] Respondent's Submissions in Relation to Her Honour Archer J in Reid, para 4(b) and Applicant's Further Submissions Addressing the Reid decisions, para 4.1.
[81] Respondent's Submissions in Relation to Her Honour Archer J in Reid, para 4(a) and Applicant's Further Submissions Addressing the Reid decisions, para 4.2.
Land use classification is at the heart of this dispute and relevant to Issue 1. I will now turn to this threshold issue.

Issue 1 - whether the development is correctly classified under LPS 6 as three separate land uses, 'Retail nursery', 'Storage' and 'Transport depot' or is correctly classified one combined use being, a 'Use Not Listed – Commercial enterprise'

Adopting the four-step approach to identifying land uses from Reid,[82] I will summarise and consider the evidence and submissions in this case, after which I will make findings on this Issue.

Step 1 - determine whether a particular activity is properly characterised as an activity that will occur as part of another use or as a use in its own right.

[82] Previously outlined at [68].

The applicant submits that none of the activities which are proposed to occur on the subject site can be considered uses in their own right, which is distinct from the findings in Reid.[83] The applicant says it is impossible to disaggregate the activities proposed to occur on the subject site because none of the activities would occur in isolation and they are part of an integrated endeavour – that is, the vehicles, trees and landscaping supplies are all used to allow the operation on the subject site for the civil works business which is proposed.[84]
[83] Applicant's Further Submissions Addressing the Reid decisions, para 7.
[84] Applicant's Further Submissions Addressing the Reid decisions, para 8.
I do not accept the applicant's submission in respect to this step because, it seems to me, to do so would preclude an analysis of the various activities proposed at the subject site, as is required by this step. It is therefore necessary to firstly summarise each of the activities proposed and then to consider and determine whether each activity is properly characterised as an activity that will occur as part of another activity or as a use in its own right.

Horticultural Activities

It is uncontroversial the development proposes horticultural activities, which includes the propagation of plants, the growing and display of trees and plants and an area for landscaping supplies. The site plan shows a potting shed at the rear of the subject site. At the front of the subject site there is a large area for plant display/storage and 26 bays (each 4 metres x 4 metres) for landscape supplies.[85]
[85] Respondent's Substitute s 24 Bundle of Documents, page 278, Exhibit 3.
The horticultural activity also includes the sale (by retail to the public and also by wholesale) of plants and horticultural supplies and the supply of plants and materials for use in the large commercial landscaping projects undertaken by the civil contracting businesses operated by the companies associated with the applicant.[86]
[86] Applicant's SIFC, para 3.5A, Exhibit 6.
The horticultural activities are, in my view, a use in their own right. The plan clearly identifies where the components of this activity will occur on the subject site and this activity occupies approximately 50% of the available area[87] of the subject site. It will, in effect, operate as a stand-alone component, of the range of businesses which the applicant seeks approval to operate from the subject site.
[87] Excluding the area of the subject site occupied by the DBNGP easement.
On the evidence before me, the horticultural products will be available for sale by retail and wholesale.[88] While it is intended that the horticultural activity will also supply the civil works businesses who undertake their projects at various locations off-site, this does not mean, in my view, the horticultural activities occur necessarily as part of another use on the subject site.

Vehicle Parking Activities

[88] ts 116, 16 February 2023.

Vehicle parking activities proposed at the subject site can be considered in three categories, depending on the use of the vehicle. First, the parking of vehicles used by staff (utes and cars) employed in the related civil works businesses. Second, the parking of commercial vehicles[89] used by the civil works businesses which the applicant says will occur when these vehicles are not at a job site or maintenance is required. Third, the parking of vehicles associated with horticultural activities, which includes for staff and customers and vehicles necessary to operate this use.
[89] See [113] for definition of ‘commercial vehicle’ under LPS 6.
The site plan identifies a bitumen parking area at the front of the site, presumably for customer parking. The site plan also shows vehicle parking which is to be used by staff located on either side of the existing shed. At the rear of the site the site plan shows a hardstand area nominated for layover of vehicles to accommodate commercial vehicle parking.
The applicant submits the layover area for commercial vehicle parking will only be used on occasion and says that the ad hoc parking of commercial vehicles on site does not constitute a land use in its own right, but rather an activity in the principal land use.[90]
[90] Applicant's further submissions addressing the Reid decisions, para 15.
However, the applicant's Transport Impact Statement for the development, prepared by Transcore, indicates that existing and anticipated vehicles entering and exiting the site on a typical day are mainly passenger vehicles with some trucks with a maximum size of 19 metres semi-trailer including:[91]
(a)Three axle semi-trailer.[92]
(b)Two axle truck and a two-axle dog trailer.
(c)Tandem axle rigid truck.
[91] Respondent's Substitute s 24 Bundle of Documents, page 243, Exhibit 3.
[92] Mr Hofland identifies this truck as a 'prime mover with tri-axle semi-trailer (float)', Respondent's Substitute s 24 Bundle of Documents, page 276, Exhibit 3.
By email (dated 20 December 2021) Mr Hofland advises the respondent the three trucks, together with nine passenger vehicles, 'are to be based at the [subject] site' and that there would be two movements per day for each of the trucks.[93]Also, by letter of 2 December 2021, Mr Hofland advises the respondent, '[w]hile some vehicles and equipment are stored on site, they are there for the purpose of the operation of the contracting businesses owned by [the director of the applicant]'.[94]
[93] Respondent's Substitute s 24 Bundle of Documents, page 274, Exhibit 3.
[94] Respondent's Substitute s 24 Bundle of Documents, page 229, Exhibit 3.
At the hearing, under cross-examination about the machinery[95] and equipment used by the applicant (and the other related companies), Mr Hofland's oral evidence is:[96]
… And, I guess, the other point I want to raise as I started at the beginning, is that we went out to site. There's a lot of the machinery and other equipment, other activities have been relocated out of there until this application can be determined. The client is trying to avoid any potential prosecution action or other further matters.[.]
[95] Machinery, including tractors and their attachments and earthmoving machines are included in the definition of 'commercial vehicle' in LPS 6. See Respondent's Substitute s 24 Bundle of Documents, page 59.
[96] ts 93, 16 February 2023.
Most of the vehicle parking activities, in my view, is a separate use in its own right. This is because, considering the evidence of Mr Hofland, these activities will not occur as part of another use on the subject site but are for parking of vehicles associated with a civil works businesses where the projects occur off-site.[97]
[97] Witness Statement of Jeremy Hofland, para 38.1 - 38.3, Exhibit 8.
Further considering the oral evidence of Mr Hofland and his advice to the respondent on 2 December 2021, referred to earlier, I do not accept the applicant's submissions that parking of large commercial vehicles will be ad hoc or a part of another activity occurring on the subject site. On the evidence before me, these vehicles will be parked on the subject site to facilitate off-site civil works contracting.
Vehicle parking activities associated with the horticultural activities, which I accept would include for customers and some staff and also appropriate vehicles to operate this activity, would not, in my view, be a separate use, but form part of the horticultural use.

Vehicle and Equipment Maintenance Activities

The development includes provision for vehicle and equipment maintenance activities to occur on the subject site, either in the existing shed[98] or potentially outdoors, in the car park or vehicle layover area, as was observed at the view.[99] Maintenance includes the servicing of various vehicles and equipment used by the applicant in the related civil works contracting businesses.[100] Mr Hofland says a service technician is to be on the subject site two to three days a week for this purpose.[101] Mr Hofland's also describes 'the existing workshop being used for maintenance of machinery associated with the client's contracting business…'.[102]
[98] ts 133, 16 February 2023.
[99] ts 115, 16 February 2023.
[100] ts 105 - 106, 16 February 2023.
[101] Witness Statement Jeremy Hofland, para 38.1, Exhibit 8.
[102] ts 93, 16 February 2023.
The vehicle and equipment maintenance activities which will occur on-site are, in my view, an activity that will occur as part of another activity, being the vehicle parking activity or the storage activity (where this relates to plant and equipment). This is because various vehicles and plant and equipment will be brought to the site to be parked or stored when undergoing maintenance. This is agreed in oral evidence by the planning experts.[103] Therefore, it is not, in my view, a use in its own right in this case.

Storage Activities

[103] ts 91, 16 February 2023 and ts 93, 16 February 2023.

Storage activities includes the storage of various pieces of equipment used by the civil works businesses. The applicant says the equipment is to be stored at the subject site when not at a job.[104] This includes earthmoving and piling equipment and the storage of spare parts. It also includes the storage of supplies such as soak wells and piping to be used in civil works projects undertaken off-site.[105] The storage activity also involves the storage of landscaping supplies used by the various businesses.[106] In this regard, the respondent identifies that previously there were large stockpiles of sand and gravel stored at the rear of the site.[107] It appears much of these landscaping supplies are to now be stored in the 26 bays proposed towards the front of the subject site.
[104] Applicant's SIFC, para 3.5A(c), Exhibit 6.
[105] ts 132, 16 February 2023 and Applicant's further submissions addressing the Reid decisions, para 17.
[106] Respondent's ASIFC, para 2.32(b) and para 2.32 (c), Exhibit 2. This is accepted in the Applicant's SIFC, para 2.32, and repeated at para 3.5A(d), Exhibit 6.
[107] Inspections undertaken by the City on 15 June 2021, 29 July 2021 and 6 September 2021 - see Respondent's SIFC, para 2.26, Exhibit 2.
The storage activity associated with the storage of various pieces of equipment used by the contracting business, is in my view a separate storage use in its own right. This is because the storage activity associated the storage of supplies such as sand, gravel, pipes and soak wells for civil works projects which occur off-site are not, in my view, directly associated with the horticultural activities (which are to occur on the subject site) but are also part of a separate storage use required to facilitate off-site civil works contracting.
I have reached this conclusion after considering the Tribunal's[108] decision in Humich and City of Gosnells [2008] WASAT 298 (Humich) and the applicant's submission, identifying Humich at [38] which states in part:
Ultimately, the classification of a use for the purposes of land use planning involves questions of fact and degree.[.]
[108] SM Parry (as he then was).
In this case, large quantities of materials and various items of equipment are required to support the civil works projects which occur off-site, that much is evident from the historical use of the site which included large stockpiles of sand and gravel and the proposed storage of supplies (which also includes pipes and soak wells), as well as the associated plant and equipment. It is also clear from the evidence of Mr Hofland, referred to earlier at [92], where he identifies that 'a lot of the machinery and equipment' has been moved off the subject site until this matter has been determined.
The development includes this 'storage' aspect and proposes to add horticultural activities (sale of trees and plants and landscape supplies). However, this does not, in my view, result in the storage of materials which are to be used separately for civil works projects (which occur off-site) forming a part of the on-site horticultural activities.

Administration Activities

The southern portion of the existing shed is used for office and administration activities associated with the development. This includes office and administration activities for the proposed horticultural activities and for the civil works businesses. The respondent does not raise issue with this activity.[109]
[109] ts 158, 16 February 2023
The office/administration activity is not, in my view, a separate use. It will occur (to a varying extent) as a part of the horticultural activities, the vehicle parking activities and the storage activities.

Step 2 - determine which classification in the zoning table would apply to each use if assessed individually.

As mentioned, LPS 6 contains a zoning table at Table 1. I will now consider each use individually against the uses listed in Table 1 together with the various land use definitions in Sch 1 of LPS 6.[110]

Horticultural Activities

[110] Respondent's Substitute s 24 Bundle of Documents, pages 58 - 64, Exhibit 3.

For the horticultural activities, Mr Scambler, in his witness statement, identifies this use to be classified a 'Retail nursery' under LPS 6.[111] 'Retail nursery' is defined in LPS 6 and:[112]
… means premises used for the retailing of horticultural goods such as seeds, seedlings, bulbs, shrubs, trees or other nursery stock and may include as an incidental use, the sale of food and drinks, garden ornaments, herbicides, insecticides, gardening implements, plant containers, bagged fertilisers, bagged manures, bagged sand and bagged mulch[.]
[111] Substitute Witness Statement of Brenton Scambler, para 6.4, Exhibit 4.
[112] Respondent's Substitute s 24 Bundle of Documents, page 63, Exhibit 3.
However, as mentioned earlier, under cross-examination Mr Scambler concedes,[113] correctly in my view, the horticultural activities do not accord with the definition of 'Retail nursery' under LPS 6. This is because the landscaping products will not be sold in bags as required by the definition. Additionally, the sale of horticultural supplies is also proposed on a wholesale basis (including supply to the civil works contracting business related to the applicant) and not only by retail.
[113] At [17] and ts 74 - 76, 15 February 2023.

'Wholesale' is a term defined in LPS 6 to mean 'the sale of goods or materials to be sold by others'.[114] On the evidence before me, this is consistent with what is proposed to occur with the horticultural activities.
[114] Respondent's Substitute s 24 Bundle of Documents, page 57, Exhibit 3
Mr Hofland's evidence is the definition of 'Garden centre' in draft LPS 24 would cover the proposed horticultural activities.[115] Under draft LPS 24 'Garden centre' means:
… premises used for the propagation, rearing and sale of plants, and the storage and sale of products associated with horticulture and gardens.
[115] Witness Statement of Jeremy Hofland, paras 83 - 84, Exhibit 8.
Mr Scambler does not identify any other definition in the current town planning scheme (LPS 6) that suitably covers the proposed horticultural use and accepts it is correctly classified as a use not listed under LPS 6.[116] The applicant also says:[117]
… It's our submission that in relation to the horticultural component of this proposed land use that it doesn't fall within the current definition of retail nursery, and, therefore, that land use alone must be determined as a use not listed.[.]
[116] ts 76, 15 February 2023. LPS 6 provisions relating to unlisted uses are outlined earlier at [64].
[117] ts 131, 16 February 2023.
I agree, and in my view, considering the definition of 'Garden centre' in draft LPS 24, which itself is from the 'Model provisions for local planning schemes' in Sch 1 of the LPS Regulations,[118] this use is appropriately described as a 'Use not listed - Garden centre'.

Vehicle Parking Activities

[118] At cl 38 of the LPS Regulations.

The respondent contends the vehicle parking activities are a 'Transport depot' use under LPS 6.[119] 'Transport depot' as defined in LPS 6:[120]
…means premises used for the parking of a commercial vehicle, where that vehicle is not driven by an occupant of a dwelling on that site as part of their occupation.
[119] Respondent's Amended SIFC, para 3.2, Exhibit 2.
[120] Respondent's Substitute s 24 Bundle of Documents, page 64, Exhibit 3.
It is also necessary to consider the LPS 6 definition of 'commercial vehicle' as it is a term contained within the definition of 'transport depot' and:[121]
… means a vehicle whether licenced or not and which is used, capable of being used, designed to be used or intended to be used in conjunction with a trade or profession and shall include trailers, tractors and their attachments, buses and earthmoving machines whether self-propelled or not but shall not include a passenger car derivative as defined by the Vehicle Sales Regulations 1976 (as amended), a van, utility or light truck which is rated by the manufacture as being suitable to carry loads of up to 1.5 tonnes[.]
[121] Respondent's Substitute s 24 Bundle of Documents, page 59, Exhibit 3
Mr Hofland's evidence on this aspect, which I accept, is that the parking of 'a passenger car derivative' vehicle (such as the utes and light commercial vehicles used by staff of the civil works contracting businesses) does not fall within the definition of commercial vehicle. Therefore, I agree the parking of these vehicles cannot be considered part of a transport depot land use under LPS 6 in this case.[122]
[122] ts 117 - 118, 16 February 2023.
The parking of these vehicles could fall within the land use definition 'car park' which in LPS 6:[123]
…means premises used primarily for parking vehicles whether open to the public or not but does not include any part of a public road used for parking or for a taxi rank, or any premises in which cars are displayed for sale[.]
[123] Respondent's Substitute s 24 Bundle of Documents, page 58, Exhibit 3.
However, considering the definition of car park, the parking of these vehicles is not the primary use of the premises and the parking is associated with the parking of heavy vehicles and the activity of storage of plant and equipment at the subject site because these activities are proposed to exist on the subject site to facilitate civil works projects which occur off-site.
The parking of commercial vehicles, which includes within the definition 'earthmoving machines' and 'trailers' and which are used for a trade or profession applies to the 'transport depot' definition in this case. Mr Hofland, under cross-examination, accepts these commercial vehicles, are of the type to be parked at the subject site and are therefore captured by the 'Transport depot' definition of LPS 6.[124]
[124] ts 80 - 81, 16 February 2023.
Given the development proposes vehicle parking activities for commercial vehicles, a 'Transport depot' land use classification, in my view, applies to the commercial vehicle parking activities proposed by the development.

Storage Activities

LPS 6 defines the land use 'Storage':[125]
… means premises used for the storage of goods, equipment, plant or materials.
[125] Respondent's Substitute s 24 Bundle of Documents, page 63, Exhibit 3.
The applicant submits that, 'in relation to 'storage' the material that is on this land is located there because it is moved on and off site for the purpose of various jobs that are occurring – soakwells, piping and other materials brought on to the site for jobs and taken off for the same purpose. There is no long-term storage land use'.[126] The applicant says 'storage' is not the primary purpose for the existence of these items on the subject site and most of the items will not be there long enough to be considered 'storage'.
[126] Applicant's further submissions addressing the Reid decisions, para 17.
Contrary to the applicant's submissions, the oral evidence of Mr Hofland, (identified earlier at [92]), in my view, points to a storage use (and also to a transport depot use) proposed at the subject site.
The definition of 'storage' under LPS 6, was considered by her Honour, Pritchard J (as she then was) in Bright Image Dental Pty Ltd v City of Gosnells [2017] WASC 229 (Bright Image Dental) in which her Honour observed 'the definition does not itself define what 'storage' means'.[127] Further, her Honour finds the ordinary meaning of the word 'storage' is:[128]
… a 'place where something is stored' and the word 'store' means to … stock (a person, place etc) with something; to keep in store for future use; to collect and keep in reserve' and 'to…stock with something as for future use; to deposit in a … place for keeping'[.]
[127] Bright Image Dental at [42].
[128] Bright Image Dental at [42], citations omitted.
Relevant to the applicant's argument that most goods and materials are stored on site for a short period and taken off site for the same purpose, her Honour in Bright Image Dental at [44] observes:
The fact that to 'store' a good involves keeping it for future use, contemplates the retention of that thing for some duration, although no particular period of retention of the good is required. The question in each case will be whether the evidence supports the conclusion that the good is being kept for some future use, rather than that the presence of the good on the land is associated with some other use.
In this case it is plain on the applicant's own submissions, that certain materials (and in significant quantity) are to be stored for a future use – being incorporation into civil works projects off-site. This is not a case, in my view, where the goods and materials are being stored on the subject site are associated directly with some other use occurring on the subject site.
Also, on the evidence before me, the items of plant and equipment that are to be stored on the subject site are not associated with a use occurring on the subject site but used to facilitate the civil works projects off‑site.
Therefore, given the development proposes the storage of equipment, plant and materials, in my view, a 'Storage' land use classification under LPS 6 correctly applies to the storage activity in this case.

Step 3 – if multiple uses are proposed (as is the case here) determine whether the combination of uses (or the combination of a subset of uses) transforms the nature of those uses such that they are together only one use.

The respondent submits, this step is of particular relevance and that '[i]t is a significant step that needs to be taken by the Tribunal in the present case'.[129] In this regard, the respondent identifies the background of facts which includes a past history of use, which the respondent says is of transport depot and storage uses, as relevant.
[129] Respondent's reply to applicant's further submissions on Reid decisions, paras 1.8 - 1.9.
Under cl 67(2)(w) of the Deemed Provisions, the history of the subject site where the development is being located is a matter which is to be given due regard.
The respondent submits that the applicant has attempted over a number of years to conduct a transport depot use and storage use from the subject site and has been prosecuted and convicted of a planning offence in that regard.[130]
[130] See footnote 53.
Under cross-examination on the 2018 development approval[131] the oral evidence of Mr Hofland, in my view, supports the respondent's assertion:[132]
… So I will say I haven't concerned myself in detail with the previous approval granted to the site, only to the extent that, in speaking with [the director of the applicant], as the proponent, he had indicated that that approval wasn't effective for how he intended to operate at the site. Certainly it would appear to be the case that – I mean, I also am unaware of the – the details relating to prosecution action undertaken by the city where it has been deemed that he's not operating in accordance with that approval.
And, as I said, in discussions at the time, it wasn't considered that he wanted to bring the property into compliance with that approval; he wanted a new approval. So that's where we've focused our efforts[.]
[131] For a 'Retail nursery' at the subject site.
[132] ts 110, 16 February 2023.
I do not accept Mr Hofland's evidence that he is unaware of the prosecution action, or the basis for it, because under earlier cross‑examination as to what Mr Hofland understands the development on the subject site to be, he states:[133]
… And, I guess, the other point I want to raise as I started at the beginning, is that we went out to site. There's a lot of the machinery and other equipment, other activities have been relocated out of there until this application can be determined. The client is trying to avoid any potential prosecution action or other further matters[.]
[133] ts 93, 16 February 2023.
The applicant's position is that the mix of uses does not easily fall within an existing use classification under LPS 6, but that the activities cannot be easily disaggregated and, on that basis, says the operations are best considered together as an innominate use (a use not listed) under LPS 6.[134]
[134] Applicant's SIFC, para 3.5B, Exhibit 6.
Although the applicant initially asserted that the development proposes a 'hybrid set of land uses',[135] in later submissions, the applicant says that what is proposed is not a 'hybrid use', and that a 'hybrid use' is a combination of defined land uses, which when grouped together, transforms those defined land uses into one separate land use.[136]
[135] Applicant's SIFC, para 3.5A, Exhibit 6.
[136] Applicant's Further Submissions Addressing the Reid decisions, para 6.
This later submission is also contrary to the evidence of Mr Hofland, who says, '[w]hilst the activities to be undertaken are broadly consistent with the use classes of 'Industry – Light' and 'Garden Centre' as proposed in draft LPS 24, it would not fit entirely within either. The proposal effectively represents a hybrid use incorporating both use classes'.[137]
[137] Witness Statement of Jeremy Hofland, para 85, Exhibit 8. As to the 'Industry – Light' use classification, under cross-examination, Mr Hofland concedes there are no elements of the development that incorporate an industry use, other than possibly the maintenance of vehicles machines, which Mr Hofland accepts is incidental to the parking or storage of those items, ts 105 - 106, 16 February 2023.
While the applicant may have difficulty explaining the characterisation of the use (or combination of uses) in the development, I understand the applicant's position essentially to be that the activities proposed on the site do not fall within defined land uses, are intrinsically linked to one another, and therefore must be combined for the purposes of ascertaining an appropriate land use definition.[138]
[138] Applicant's further submissions addressing the Reid decisions, para 8.
As explained, I do not accept this is the correct starting point in the classification uses, because, it necessary to consider and determine this, through the four-step approach adopted in Reid.
In respect to the history of the site, the earlier approvals and the history of enforcement action, the applicant submits this is not relevant in the consideration of this case because the development before the Tribunal is a new land use.
While I do not place significant weight on the earlier enforcement action, I do not accept the applicant's submission that the history of the subject site (and its use by the applicant) is not a relevant consideration in coming to a decision in this matter. This is plainly relevant because it is identified in cl 67(2)(w) of the Deemed Provisions as a matter to which I am to have due regard.
In the context of the historical use of the subject site, the respondent says it is not reasonable to assert that the addition of a further use, of (what the respondent goes on to characterise as) a 'wholesale nursery', at the subject site, would have the effect of transforming all of the uses into a new and different innominate use.[139]
[139] Respondent's Reply to Applicant's Further Submissions on Reid decisions, para 2.8.
The respondent says if that approach is successful in this case, it would have the potential to transform land use planning, essentially because it would open up a very convenient opportunity for enterprising business operators to transform prohibited non‑discretionary uses into permissible discretionary uses simply by adding another use to the same site.[140]
[140] Respondent's Reply to Applicant's Further Submissions on Reid decisions, paras 2.9 and 2.10.
When considering the uses that make up the development, the respondent points to the evidence of Mr Hofland, where he states:[141]
The activities and works proposed for the Review Site primarily relate to the propagation, growing and display of plants, together with the storage of landscaping supplies, for sale to the general public and also for use within major municipal or subdivisional landscaping projects, together with the occasional storage of machinery in association with the landscaping / preparatory forward works to be undertaken off-site.
[141] Witness Statement of Jeremy Hofland, para 113, Exhibit 8.
The respondent submits that what Mr Hofland is clearly dealing with are three components of the proposed hybrid use being:[142]
1.Storage of vehicles and machinery used in association with earthworks which have previously been treated by the Applicant and the Respondent as involving the Transport Depot use class;
2.Storage use class; and
3.The proposed wholesale nursery.[143]
[142] Respondent's Reply to Applicant's Further Submissions on Reid decisions, para 1.6.
[143] Which I have classified 'Use Not Listed – Garden centre'.
In this case, the combination of uses which involves a 'Use Not Listed – Garden centre', 'Transport depot' and 'Storage' uses does not, in my view, transform the nature of those uses so they are only one use together.
This is because, the 'Use not listed – Garden centre' will operate, in my view, as a separate use on the subject site. To an extent, on the applicant's own submissions, this is accepted.[144] The 'Transport depot' use and 'Storage' use will also operate separately because, on the evidence before me, they are required on the subject site to support the civil works that occur off-site.
[144] ts 131, 16 February 2023 and Applicant's Further Submissions Addressing the Reid decisions, para 22.
Therefore, the three uses ('Use Not Listed - Garden centre', 'Transport depot' and 'Storage') when combined do not, in my view, transform into only one use.

Step 4 – depends on the answer to the third step:

if the answer to the third step is that the combination did transform the nature of those uses such that they are together only one use, the fourth step is to determine which classification of 'use' in the Zoning Table applies to the resulting single use.

if the answer to the third step is that the combination did not have the effect that the uses together are only one use, the fourth step is:

a. to determine whether the combination of uses transform the nature of one or more of the individual uses such that it (or they) should be regarded as a different use; and

b. if the combination does have the effect that one or more of the individual uses should be regarded as a different use, to determine which classification of 'use' in the Zoning Table applies to that different use.

In this case, the answer to the third step is that the combination of all the uses does not have the effect that the uses together are only one use. It is therefore necessary, as the fourth step, to proceed to consider and determine 2a and 2b outlined above.
The applicant submits that in this case the answer to the third step is that the combination of land uses is such that they are together only one use.[145] However, as already mentioned at [143]-[145], I do not agree this is the case.
[145] Applicant's Further Submissions Addressing the Reid decisions, para 24.
Considering the combination of uses, being 'Use not listed - Garden centre', 'Transport depot' and 'Storage', when one or more are combined it does not, in my view, transform the individual uses such that they should be regarded as a different use.
This is because, as I have found when considering the third step, each use is a separate and distinct use. In this case, in my view, the 'Use not listed – Garden centre' is unaffected by the other uses to be carried out on the subject site. Likewise, the 'Storage' use on the subject site of plant, equipment and materials associated with civil works undertaken off site is unaffected by the horticultural activities and the 'Transport depot' use. The 'Transport depot' use (which relates to the parking on the subject site of commercial vehicles associated with civil works which occur off-site) is unaffected by the 'Use not listed - Garden centre' use and the 'Storage' use.

Findings – Issue 1

The development is, I find, correctly classified under LPS 6 as three separate land uses, this being 'Use not Listed – Garden centre', 'Transport depot' and 'Storage' for five reasons.
First, on the evidence before me, the activities proposed at the subject site, horticultural activities, vehicle parking activities, storage activities are each properly characterised as uses in their own right, considering the analysis in the first step.[146]
[146] At [81] - [104].
Second, on the evidence before me and considering the analysis in the second step,[147] the uses are correctly classified under LPS 6 as 'Use not Listed – Garden centre' for the horticultural activities, 'Transport depot' for the commercial vehicle parking activities and 'Storage' for the storage of the materials and the plant and equipment required to support off-site civil works projects.
[147] At [105] - [126].
Third, considering the analysis in the third step,[148] the combination of the uses does not, in my view, transform the nature of the uses in the development such that they are together one use.
[148] At [127] - [145].
Fourth, considering the analysis in the fourth step,[149] the combination of one or more of the uses with another use in the development does not, in my view, have the effect that one or more of the uses should be regarded a different use.
[149] At [146] - [149].

Fifth, considering the history of the subject site,[150] the proposed addition of horticultural activities (Use not listed – Garden centre) does not have the effect of transforming the 'Transport depot' and 'Storage' uses and rendering those uses, which are prohibited in the 'General Rural' zone, permissible at the subject site.
[150] Which as identified earlier is a relevant consideration under cl 67(2)(w) of the Deemed Provisions.

Conclusions on uses

In Foodbarn v Solicitor General (1975) 32 LGRA 157 (Foodbarn), a decision of the New South Wales Court of Appeal, which considered the question of land use classification where multiple activities are proposed, the Court observed:[151]
Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If anyone purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.
[151] Foodbarn, page 161.
Further, in Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431 (Gull Petroleum) the Supreme Court held:
However it seems to me that each proposal must be looked at on its own merits. The classification of the proposed uses should not be carried out either in a mechanical or in an arbitrary way. If, in a particular case, the manner in which two uses are to be combined on a particular site makes it inappropriate to categorise the resulting use as a dual use with each use falling within a definition in the Scheme, perhaps because the proposed manner of combining the two uses so changes the character of one or both of them that it or they can no longer sensibly be taken to fall within the definition or definitions in the Scheme, then there should be no such categorisation. Where, on the other hand, the character of each use remains unaffected by the fact that one site is shared between them there is no reason why the categorisation of each use should be any different than if each had been effected from its own site. If either use is unacceptable within the particular location it would not be approved. That consequence would not be altered by the fact that another, permitted, use would be effected from the same site.
In the present case I have identified that the three uses will operate as separate uses at the subject site. Drawing on the observations in Foodbarn it is irrelevant to inquire which of the multiple use may be dominant in this case. Further, drawing on Gull Petroleum, there is no reason why the categorisation of each use should be any different, given my findings, than if each had been effected from its own site.
Table 1 of LPS 6 designates the land uses 'Transport depot' and 'Storage' as prohibited ('X') uses in the 'General Rural' zone. These uses are not capable of approval in this zone.
The 'Use not Listed – Garden centre' needs to be considered against cl 3.4 of LPS 6, and in particular cl 3.4.2. In this case, considering the evidence of the planning experts and the submissions of the parties, this use is one which, in my view, may be consistent with the objective of the particular zone, in this case the General Rural zone.[152]
[152] Consistent with cl 3.4.2b) of LPS 6, page 25, Exhibit 3.
As mentioned,[153] the objective of the 'General Rural' zone is 'to provide for a range of rural pursuits which are compatible with the capability of the land and which retain the rural character and amenity of the locality'.
[153] At [61].
The 'Use not Listed – Garden centre' is a use capable of approval as a separate land use under LPS 6, however the land uses 'Transport depot' and 'Storage' are prohibited ('X') and are not capable of approval at the subject site. Therefore, the development in the form proposed, being incapable of approval, must be refused.

Issue 2 - if the development is a 'Use Not Listed – Commercial enterprise', whether the development should be approved in the circumstances of this case

As I have determined, the development cannot be correctly classified as one use, a 'Use not Listed – Commercial enterprise', the development is unable to satisfy the threshold land use classification question. It is therefore unnecessary for me to proceed to consider and determine Issue 2.

Conclusion

For the reasons outlined, I have found the development involves three separate land uses. I have also found, for the reasons outlined, the correct land use classifications under LPS 6 of the three separate uses are 'Use not listed – Garden centre', 'Transport depot' and 'Storage'.
Because the land uses 'Transport depot' and 'Storage' are prohibited ('X') uses under LPS 6 in the General Rural zone, which the subject site is zoned, the development, as proposed, is incapable of approval.[154]
[154] Pursuant to cl 67(1) of the Deemed Provisions.
Therefore, the application for review is dismissed and the deemed refusal of the respondent under LPS 6[155] is set aside and substituted with a decision[156] to refuse the development.
[155] Identified earlier at [1], [49] and [51].
[156] Pursuant to s 29(3)(c)(i) of the SAT Act.

Orders

For these reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The deemed refusal of the development is set aside, and a decision substituted to refuse the development at No 219 (Lot 507) Kelvin Road, Orange Grove which comprises a 'Use Not Listed – Garden centre', 'Transport depot' and 'Storage' land uses and associated works, under the City of Gosnells Local Planning Scheme No 6 for the following reasons:
a.The development proposes a 'Transport depot' use which is a use prohibited under LPS 6 in the General Rural zone (which the subject site zoned) and therefore this use is incapable of approval.
b.The development proposes a 'Storage' use which is a use prohibited under LPS 6 in the General Rural zone (which the subject site is zoned), and therefore this use is incapable of approval.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
20 SEPTEMBER 2023