Happy Cruising Pty Ltd v City of Gosnells
[2024] WASC 464
•5 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HAPPY CRUISING PTY LTD -v- CITY OF GOSNELLS [2024] WASC 464
CORAM: SOLOMON J
HEARD: 16 APRIL 2024
DELIVERED : 5 DECEMBER 2024
FILE NO/S: GDA 8 of 2023
BETWEEN: HAPPY CRUISING PTY LTD
Appellant
AND
CITY OF GOSNELLS
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: MEMBER POVEY
Citation: [2023] WASAT 87
File Number : DR 181 OF 2021
Catchwords:
Town planning - Development application - Multiple uses - Proper approach to determining 'uses' - Classification of use - Whether multiple uses constitute a new single use or separate uses - 'garden centre', 'transport depot', 'storage' - Retail nursery - Hybrid use - Appeal on a question of law, fact or mixed law and fact
Legislation:
Planning and Development Act 2005 (WA)
Planning and Development (Local Planning Scheme) Regulations 2015 (WA)
State Administrative Tribunal Act 2004 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | T Houweling |
| Respondent | : | D W McLeod |
Solicitors:
| Appellant | : | Cornerstone Legal |
| Respondent | : | McLeods |
Cases referred to in decision:
BP Australia Ltd v City of Perth (1994) 10 SR (WA) 110
City of Mandurah v Australian Flying Corps and Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185
Foodbarn Pty Limited v Solicitor General (1975) 32 LGRA 157
Gull Petroleum (WA) Pty Ltd & Ors v Nashville Investments Pty Ltd & Anor [1999] WASCA 12
Happy Cruising Pty Ltd and City of Gosnells [2023] WASAT 87
Humich and City of Gosnells [2008] WASAT 298
Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; 33 WAR 361
Reid v City of Gosnells [2023] WASC 48
SOLOMON J:
Background and regulatory framework
This is an appeal against a decision of the State Administrative Tribunal (SAT). In its decision, the SAT dismissed an application brought by the appellant (Happy Cruising) under s 252(1) of the Planning and Development Act 2005 (WA) for the review of the City of Gosnells' (City) refusal to grant approval for a development application in respect of the property located at No 219 (Lot 507) Kelvin Road, Orange Grove (subject site).
The appeal is brought under s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Under that section, leave is required to appeal and the appeal can only be brought on a question of law. I shall return to that important requirement later in these reasons.
The subject site is located within the City, approximately four kilometres from the Gosnells Town Centre at the eastern corner of the intersection of Tonkin Highway and Kelvin Road. It has a land area of 1.7948 hectares.
The subject site is governed relevantly by the Metropolitan Region Scheme (MRS) and the City of Gosnells Town Planning Scheme No 6 (TPS 6). The zoning of the subject site is 'Rural' under the MRS and 'General Rural' under TPS 6.
Development application
Happy Cruising's development application dated 28 April 2021 related to a variety of proposed uses on the subject site. As described by Happy Cruising in its application to the City,[1] those uses involved the retail sale of agricultural/gardening supplies (i.e. trees, mulch and soil) and layover of trucks and equipment associated with major municipal/subdivision landscaping projects. In essence, Happy Cruising maintained that the combination of these various uses constituted an integrated 'commercial enterprise'. In its application forms to the City, Happy Cruising described the proposed development as a 'Commercial enterprise'.[2]
[1] Respondent's Substitute s 24 Bundle of Documents, page 129, Exhibit 3.
[2] Respondent's Substitute s 24 Bundle of Documents, pages 181 - 182, Exhibit 3. The two application forms are Application for Development Approval under TPS 6 and Application for Planning Approval under MRS.
The City maintained that the uses did not constitute an integrated commercial enterprise. Rather, the City characterised Happy Cruising's proposal as being comprised of distinct and independent uses, namely a 'Retail nursery', 'Transport depot' and 'Storage'.[3]
[3] Respondent's Amended Statement of Issues, Facts and Contentions (ASIFC), [1.1], [1.2] and [1.4], Exhibit 2.
In the SAT decision,[4] the learned member proceeded on the basis that Happy Cruising's application turned on clause 3 of TPS 6. There is no challenge to that premise. The learned member explained the relevant provisions of cl 3 at [62] - [64] as follows:
[4] Happy Cruising Pty Ltd and City of Gosnells [2023] WASAT 87 (Happy Cruising).
Clause 3.3.1 of [TPS 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 [TPS 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.
Under the Zoning Table, 'Retail nursery' is a permitted use but 'Transport Depot' and 'Storage' uses are prohibited ('X') uses at the subject site. For that reason, the City maintains that the application was correctly refused. In contrast, Happy Cruising submits that the combination of uses constituted a new integrated and independent use that does not fall within the existing land use classifications under the Zoning Table and is therefore governed by cl 3.4.2.
The SAT hearing and decision
The threshold issue for determination as identified by the learned member was whether the development was correctly classified under TPS 6 as separate land uses, 'Retail nursery', 'Storage' and 'Transport depot', or whether it was correctly classified as one combined use being a 'Use Not Listed - Commercial enterprise'.
Each party filed a statement of issues, facts and contentions setting out its position. In its statement, Happy Cruising described the proposed use of the subject site in the following terms:
(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.
The learned member heard evidence regarding the proposed use of the subject site, including town planning expert evidence from each party, and he conducted a viewing of the subject site. The evidence provided a detailed factual account of the proposed uses of the subject site by Happy Cruising and its related entities.
Happy Cruising's position before the SAT was that none of the proposed activities could be uses in their own right and it was not possible to disaggregate the activities proposed to occur on site because none of the activities would occur in isolation. The various proposed uses therefore were all parts of an integrated endeavour or 'commercial enterprise'.
Multiple uses under planning law
Having set out the regulatory framework, the factual background and the issues for determination, the learned member turned to the proper approach to identifying land uses. The learned member placed particular emphasis and reliance on the decision of this court in Reid v City of Gosnells [2023] WASC 48 (Reid). In that decision, at [234] ‑ [237], Archer J set out four steps in the proper approach to identifying uses as follows:
The 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.
The second step is to determine which classification of 'use' in the Zoning Table would apply to each use, if assessed individually.
If 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.
The 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.
(emphases in original)
There was no challenge to the correctness of the steps set out by Archer J. Rather, Happy Cruising contends that the steps were not correctly applied by the learned member.
Archer J's four-step test was itself derived from established authority dealing with the correct identification of the 'use' of a property where multiple and concurrent uses are undertaken on a property.
In Foodbarn Pty Limited v Solicitor General (1975) 32 LGRA 157 (Foodbarn), the Court of Appeal of New South Wales considered premises that were used both for warehousing and wholesale sales, and concurrently for retail sales. Having described the use of the premises in some detail, Glass JA (with whom Samuels and Hutley JJA agreed) said at 161:
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 any one 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.
That decision was cited with approval in this jurisdiction by the former Town Planning Appeal Tribunal in BP Australia Ltd v City of Perth(1994) 10 SR (WA) 110. That decision was itself cited with approval by the Court of Appeal in Gull Petroleum (WA) Pty Ltd & Ors v Nashville Investments Pty Ltd & Anor [1999] WASCA 12 (Gull Petroleum). The Court of Appeal considered a development application for the then newly emerging enterprise of a petrol station combined with a convenience store. Each of a 'service station' and a 'shop' was identified as a 'use' under the zoning classification table in the relevant scheme, and classified as 'AA' which meant that the land could not be used for the purpose indicated unless the Council approved of that use. The applicable scheme also provided, in effect, that if a proposed use was not listed in the zoning table, then it could not be approved unless certain preconditions for public advertising had been met. The Council (the Town of Victoria Park) assessed the application on the basis that it proposed two uses; a service station and a shop. The Council approved both of these uses and thus approved the development application. As it approved the uses on the basis that they were both listed in the zoning table, the issue of public advertising did not arise.
Steytler J (with whom Kennedy and Ipp JJ agreed) described the plans and the proposed use in some detail. His Honour then explained the competing contentions of the parties. Gull Petroleum contended that it was open to the Council to characterise the proposal as encompassing two uses, a service station and a shop. As both were listed 'AA' in the zoning table, it was open to the Council to grant approval for the development. The opposing position was put by a respondent to the appeal, effectively a commercial competitor. That respondent contended that the Council was in error in its characterisation of the development as encompassing the two separate uses. Rather, the development was in effect an independent genus of use, that is a hybrid not covered by any of the categories in the relevant zoning table. It was therefore not open to the Council to approve the development.
Steytler J said at [52]:
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.
Steytler J then assessed the particular factual circumstances and plans of the development and concluded that Gull Petroleum's proposal comprised two distinct uses both listed in the zoning table, and that the Council did not err in its assessment.
It emerges plainly from the decisions considered above, that whether multiple uses constitute the mere concurrency of different uses, or whether the combination of uses gives rise to a new independent use, turns on an examination of the particular facts of each case. In that regard, I respectfully agree with the observation of Senior Member Parry in Humich and City of Gosnells [2008] WASAT 298 (Humich) that the classification of a use for the purposes of land use planning involves questions of fact and degree.
The SAT's assessment
Having set out the correct approach to the issue of multiple uses, the learned member made the following remarks at [71] - [73]:
[I]t is necessary to identify and examine each of the activities that are proposed to occur as part of the development on the subject site. …
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 …
I observe at this point that in my respectful view the learned member's remarks correctly reflect the approach embodied in the cases discussed above.
The learned member then addressed each of the four steps in Reid. Addressing Step 1, the learned member reiterated Happy Cruising's position that it was not possible to disaggregate the various activities because they were part of an integrated endeavour and would not occur in isolation. The learned member declined to begin the analysis on that basis because it would preclude the required factual analysis of the proposed uses. The learned member reasoned at [82]:
… [T]o 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.
The learned member then proceeded with a factual analysis of the proposed uses. Following that assessment, the learned member concluded that the horticultural activities constituted a use in their own right so as to operate as a stand-alone component of the range of businesses proposed to be undertaken.[5]
[5] Happy Cruising, [85].
In relation to vehicular parking, other than parking for customers and staff for the horticultural use, the learned member concluded on the facts that the vehicular parking activity constituted a use in its own right. The learned member then concluded (at [97]) that the vehicle and equipment maintenance activities did not constitute a proposed use in its own right, but rather were part of, or ancillary to, other uses namely the vehicular parking and storage uses.
Having assessed the detail of the proposed storage use, the learned member then concluded at [93] that the proposed storage of various pieces of equipment constituted a separate storage use in its own right.
The learned member then assessed that the administrative activities were not a separate use, but were ancillary to the other uses at [104].
The learned member then addressed Step 2, identifying the appropriate classification applicable to each identified use.
Turning then to Step 3, given that multiple uses were proposed, the learned member specifically addressed the question, '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 learned member concluded in the following terms at [143] - [145]:
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. 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.
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.
Having concluded that the proposal encompassed uses that were not permitted under TPS 6 rather than an independent newly combined use of a 'commercial enterprise', the learned member held that the correct decision was to refuse the application.
Grounds of appeal
Happy Cruising advanced six grounds of appeal. It did not press the sixth ground. The five grounds of appeal it advanced were as follows:
1.The Tribunal erred in law, by approaching the use of the land as if it were three separate uses, as opposed to considering the aggregate of those uses as the predominant use of the land and then informing itself whether or not that use was the capable of approval.
2.The Tribunal erred in law, by considering each separate use as independent of each other. Whereas the exercise in the proper classification of the use over the site, is to consider whether there is a predominant use, to which other uses are incidental or ancillary.
3.The Tribunal erred in law, by considering the occasional use of the land for the purpose of the parking of vehicles amounted to the definition of a Transport Depot under the Town Planning Scheme.
4.The Tribunal erred in law, in considering the occasional use of the land, for the purpose of placement of equipment, such as soak wells, piping, and some other materials, gives rise to a separate and independent use that requires development approval and needs to be considered as a separate use that required independent approval.
5.The Tribunal erred in law, by taking into account irrelevant considerations, by considering that clause 67(2)(w) of the Deemed Provisions contained within Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) required consideration of the previous prosecution of the Appellant, in respect of the use of the site.
As noted above, the appeal is brought under s 105 of the SAT Act, which provides:
(1) A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
(2) The appeal can only be brought on a question of law.
Leave to appeal under s 105 requires the identification of a question of law. A question of law is not to be distilled from the grounds of appeal. The existence of a question of law is both a qualifying condition to the invoking of the court's jurisdiction under s 105 and the subject matter of the appeal itself: City of Mandurah v Australian Flying Corps and Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185at [39].
The question or questions of law in this matter were not readily identifiable. Moreover, in the oft-quoted passage in Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; 33 WAR 361, Buss JA said at [53]:
An appeal "on a question of law" is narrower than an appeal that merely "involves a question of law". Where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2).
As a general and preliminary observation, to the extent that it was possible to distil a question of law in Happy Cruising's grounds of appeal, any such question, as will be explained, is in substance and at best, a question of mixed law and fact. With that general remark I shall address the individual grounds.
Ground 1
Ground 1 as formulated appears to complain that the learned member erred by approaching the use of the land as three separate uses rather than considering the aggregate use. In its written submissions,[6] Happy Cruising added that in so doing, the learned member failed to carry out the task required by cl 3.4.2 of TPS 6. As expressed, the ground overlooks the analysis of the learned member which quite clearly addressed the question posed by Step 3 from Reid, and in so doing undertook a factual assessment of the various uses to conclude that the three identified uses were stand-alone uses and could not be aggregated. Clause 3.4.2 therefore had no application. At best, Happy Cruising's complaint raises a question of mixed law and fact.
[6] Appellant's Submissions, [8].
The written submissions in support of Ground 1 contend that the proposed activities are 'inseparably linked, and form a trinity making up the use of the land as a 'Commercial enterprise'. The submissions raise in substance a challenge to the learned member's analysis and conclusion of the facts associated with the proposed use of the subject site.
The written submissions contend that [82] of the learned member's decision was 'precisely where the Member fell into error'.[7] That paragraph and its context are set out at [24] above. In my view, that paragraph does not reflect any error on the part of the learned member. On the contrary, that paragraph illustrates that the learned member correctly identified that he was required to analyse the detail of the application and assess whether the various uses gave rise to a new and independent use. That approach was consistent with the authorities discussed above. Happy Cruising's real complaint lies in that factual analysis. For the reasons explained, such a complaint is not amenable to an appeal under s 105 of the SAT Act.
Ground 2
[7] Appellant's Submissions, [16].
Ground 2 as framed commences with the same complaint as Ground 1, then asserts error by the failure to consider whether there was a proposed predominant use to which other uses are ancillary. In its written submissions, Happy Cruising referred in particular to the horticultural use. The submission asserted that since the learned member found that use to be carried out over the majority of the site so as to be the predominant use, the learned member ought to have considered whether the storage and parking were ancillary to that use,[8] and ought to have found that they were.[9] Again, as the authorities discussed above make clear, the relevant enquiry is a factual one, to ascertain whether the various uses are carried on concurrently or whether their combination gives rise to an independent form of use. That is what the learned member did. The learned member expressly considered whether the various uses were ancillary to a more predominant use and in some instances (such as the administrative activities and aspects of the vehicular parking) the learned member concluded that those activities were indeed ancillary to a more predominant use.
[8] Appellant's Submissions, [33].
[9] Appellant's Submissions, [9].
In addition, the learned member did not find that the horticultural use was carried out over a majority of the site and therefore constituted the predominant use. At [85], the learned member observed that the horticultural use would occupy approximately 50% of the available area of the subject site. That was one factor weighing in favour of the conclusion that the horticultural activity was a use in in its own right. In any event, the fact that an activity occupies 50% or more of a property does not necessarily mean that the activity is predominant. It will also be recalled that Glass JA in Foodbarn, in a passage approved by the Court of Appeal in Gull Petroleum, held that where on an assessment of the facts there is more than one use being carried on which is (or are) not subservient to other uses, then the dominance of one particular use is irrelevant.
It is difficult to perceive any suggestion of error in the learned member's approach, less still an error of law. In substance, Happy Cruising's substantive complaint lies with the learned member's assessment of and conclusions on the facts. Those complains are not amenable to an appeal under s 105 of the SAT Act.
Ground 3
Ground 3 complains of the learned member's conclusion that the parking activities came within the definition of a 'Transport depot' for the purposes of TPS 6.
Under TPS 6, a 'Transport depot' 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'. The ground relates to the learned member's finding (at [118]) that the development proposes vehicular parking activities for commercial vehicles and therefore came within the definition of 'Transport depot'. Happy Cruising contended that the learned member erred because the definition of 'Transport depot' ''required a finding that the premises (as a whole) is used for parking of commercial vehicles''.
Reading the learned member's decision as a whole, it is apparent that the learned member found as a matter of fact that both parking of commercial vehicles and storage of various items and equipment were proposed uses at the site to facilitate significant civil works projects which occur off-site, such as large-scale landscaping for residential subdivision. On that basis, it is apparent that the learned member found as a matter of fact that the storage of such vehicles was an identifiable and stand-alone use of the subject site.
There is nothing in the definition of 'Transport depot' that requires that the premises 'as a whole' be used for parking of commercial vehicles. If the learned member found as a matter of fact that the proposal included use of the subject site for the parking of commercial vehicles as an identifiable and stand-alone use, then it was open to the learned member to conclude that such use came within the definition of 'Transport depot', whether or not the premises as a whole were so used, or only a distinct part of the premises. Insofar as Happy Cruising complains that the learned member erred in his assessment of the facts regarding the proposed use, once again, that is not a matter that is amenable to appeal under s 105 of the SAT Act.
Ground 4
As noted, Happy Cruising's statement of facts, issues and contentions described the proposed use of the subject site as including the storage of various pieces of equipment and heavy vehicles used by various businesses when that equipment is not on-site at a job, as well as the storage of landscaping supplies for various businesses. The storage included significant equipment for work undertaken off-site in major municipal subdivision landscaping projects undertaken by Happy Cruising or businesses associated with it.[10] The storage included heavy equipment as well as things such as piping and soak wells.[11]
[10] Appellant's Submissions, [34].
[11] Happy Cruising, [120].
The learned member noted that under TPS 6 storage means premises used for the storage of goods, equipment, plant or materials. The learned member found at [124] that it was plain on Happy Cruising's own materials that the proposal included the proposed storage of materials in significant quantities for a future use. The learned member expressly found that it was not a case of the goods being stored on the subject site for a purpose associated with another use on the subject site. Rather, the items were being stored on the subject site to facilitate commercial activity on other sites, such as subdivisional landscaping. The learned member thus found, as a matter of fact, that the application included the proposed use of the subject site for storage in its own right. It was not a use that was ancillary to some other use of the site.
Happy Cruising complains that this proposed use was not a use in its own right, but rather was proposed as part of the 'overall activity of a landscaping business'. Once again, at best this raises a question of mixed fact and law and is not amenable to appeal under s 105 of the SAT Act.
General observation on Grounds 1 to 4
Grounds 1 to 4 challenge the learned member's assessment that the relevant proposed uses constituted independent uses rather than as components of a broader use and enterprise. The challenge largely, if not entirely relates to the learned member's assessment of the facts associated with Happy Cruising's application. At best that raises questions of mixed fact and law.
Happy Cruising complains that the learned member's assessment pedantically and artificially breaks down the uses into individual components and fails to appreciate the reality of the broader commercial enterprise. Quite apart from the obstacle created by the requirements of s 105, it may also be observed that the artifice might potentially be deployed the other way. Any unlawful use could be combined with other unlawful uses to form what is contended to be a broader commercial enterprise that is not listed in the zoning table, and thus not precluded. It is not difficult to perceive the irony of one unlawful use being rendered potentially permissible by combining with other unlawful uses. That is not to say that the combination of multiple uses, including unlawful uses, may never give rise to a new and independent specie of use, or that the proper planning characterisation of such arrangements may not evolve over time. However, that only serves to illustrate that the assessment of such matters and the evolution of their proper characterisation are sensitive to a careful and detailed consideration of the individual facts of each case. Generally speaking, such assessments of themselves are unlikely to give rise to pure questions of law.
Ground 5
Ground 5 concerns an aspect of the learned member's consideration of Step 3, that is, the assessment of whether the combination of uses gives rise to a new singular use.
Under regulation 8 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), the provisions of Schedule 2 to those regulations are deemed to be part of any local planning scheme if not already contained in that scheme. Accordingly, the provisions of Sch 2 form part of TPS 6. Under cl 67(2) of Sch 2, in considering an application for development approval the local government is to have due regard to certain matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application. Under subparagraph (w), those matters include the history of the site where the development is to be located.
In his consideration of Step 3, the learned member dealt with submissions from the City that he should have regard to Happy Cruising's historical use of the subject site which included attempts to conduct a transport depot and storage use. The City referred also to Happy Cruising's prosecution and conviction for planning offences in that regard. After referring to the relevant material and facts, the learned member said at [138]:
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.
Read fairly and as a whole, in my view, the prosecution itself was not a matter that played any material part in the learned member's ultimate decision. Clause 67 of Sch 2 plainly permits, and indeed requires, regard to be had to the history of the site to the extent that, in the opinion of the local government, those matters are relevant to the proposed development. It is not clear that Happy Cruising's historical use of the subject site was a factor in the learned member's conclusions. But to the extent that it was, it did not include the prosecution. Rather, in assessing whether the combined uses gave rise to a new independent use, the learned member may have had regard to the fact that Happy Cruising appeared to have previously undertaken those activities as stand-alone uses rather than as part of a broader commercial enterprise. That fact was at least arguably relevant to the question of whether the addition of further uses changed the character of the use to a new, independent and broader use.
It is noteworthy that in his consideration of Happy Cruising's historic use of the site, the learned member's remarks were directed to a submission advanced by the City that if Happy Cruising's position was accepted 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'.[12]
[12] Happy Cruising, [140].
It is also significant that in his conclusionary reasoning at [143] - [144], where the learned member summarises his reasons for concluding that the various uses do not combine to create a separate single use, the learned member makes no reference to Happy Cruising's history of the site, less still any prosecution.
For those reasons, I do not consider that the learned member erred as submitted by Happy Cruising[13] by improperly considering the prosecution history of Happy Cruising as part of the history of the site.
[13] Appellant's Submissions, [53].
Conclusion
For the reasons set out above, I am unable to accept any of the grounds of appeal and the application must therefore be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LZ
Associate to the Honourable Justice Solomon
5 DECEMBER 2024
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