HENVILLE and CITY OF ARMADALE - [2018] WASAT 108

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: CARAVAN PARKS AND CAMPING GROUNDS ACT 1995 (WA)
CITATION:   HENVILLE and CITY OF ARMADALE [2018] WASAT 108
MEMBER:   MS N OWEN-CONWAY (MEMBER)
HEARD:   14 & 15 JUNE 2018
DELIVERED          :   19 OCTOBER 2018
FILE NO/S:   CC 2003 of 2017
BETWEEN:   KEITH BRETT HENVILLE
First Applicant
PENELOPE HENVILLE
Second Applicant
AND
CITY OF ARMADALE
Respondent

Catchwords:

Park home Park home park Park home park licence Planning laws as relevant factor Vehicle Dwelling Turns on own facts

Legislation:

Building Act 2011 (WA), s 3, s 20(1), s 20(1)(n), s 20(1)(o), s 20(2)
Building Regulations 2012 (WA), reg 18(2)(b)
Caravan Parks and Camping Grounds Act 1995 (WA), s 5, s 5(1), s 6, s 6(1), s 7, s 7(1), s 7(2), s 7(3), s 7(4), s 7(5), s 7(6)(a), s 8(a), s 8(b), s 10, s 12, s 27, s 28, Form 2
Caravan Parks and Camping Regulations 1997 (WA), reg 3, reg 9, reg 15, reg 32(2)(c), reg 41, reg 52, Pt 3, Pt 4, Pt 5, Sch 2, Sch 5, Sch 6, Sch 7
City of Armadale Town Planning Scheme No 4
Liquor Control Act 1988 (WA), s 40, s 40(2)
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 18
Planning and Development Act 2005 (WA), s 4, s 87(4), s 99, s 103
Residential Parks (Long-stay Tenants) Act 2006 (WA)
Road Traffic (Vehicles) Act 2012 (WA), s 3(2), s 4, s 4(1), s 4(2), s 4(3), s 4(4), s 4(5),
Road Traffic (Vehicles) Regulations 2014 (WA), reg 3, reg 15(1), reg 15(2), reg 32, reg 171, Pt 8, Pt 10, Pt 11
Road Traffic Act 1974 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 27(3), s 29, s 29(1)
State Planning Policy 3.1 Residential Design Codes

Result:

Reviewable decision is affirmed

Category: B

Representation:

Counsel:

First Applicant	:	Mr J Skinner
Second Applicant	:	Mr J Skinner
Respondent	:	Ms AM Wood

Solicitors:

First Applicant	:	LSV Borrello Lawyers
Second Applicant	:	LSV Borrello Lawyers
Respondent	:	Kott Gunning

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

REASONS FOR DECISION OF THE TRIBUNAL:

The application and a brief outline of the dispute

Mr and Mrs Henville, the applicants, are the proprietors of land at Lot 4 (Number 15) Bay Court, Champion Lakes ('property'). The property is situated in a location under the local government control and management of the City of Armadale (respondent).
By application dated 4 October 2017, the applicants applied to the Tribunal for a review of the respondent's decision to refuse the applicants' application for the grant of a park home park licence (PHP licence) pursuant to s 7 of the Caravan Parks and Camping Grounds Act 1995 (WA) (CC Act). Section 7 of the CC Act confers a power on the respondent, to exercise the statutory discretion to grant, refuse to grant, or conditionally grant a PHP licence. The respondent is also the authority in which management and control of the use and development of land in that locality is conferred by reason of the Planning and Development Act 2005 (WA) (PD Act) and the City of Armadale Town Planning Scheme No 4 (TPS 4).
On 9 February 2017 the applicants were granted planning and development approval referred to as DA 10.2016.421.1 and on 27 September 2017 the applicants' application for an amendment thereto was granted and referred to as DA 10.2017.296.1, pursuant to TPS 4 (together referred to as 'applicants' planning approval'). The applicants' planning approval authorises the applicants, to use and develop the property as '39 Aged Persons Dwellings' with subsidiary recreation domestic, sales office (a use that is not listed) and manager's residence (a use that is not listed), pursuant to the PD Act and TPS 4.
It is agreed that:
(a)The property is zoned 'Urban Development' pursuant to TPS 4 (respondent's statement of issues, facts and contentions (RSIFC) para 14; admitted by the applicants' statement of issues facts and contentions (ASIFIC) para 6).
(b)The Lake Road Precinct B Structure Plan (approved by the respondent on 19 October 2014 and the Western Australian Planning Commission on 15 October 2015) zones the property as 'Residential' and 'R25' or 'R40' depending on whether Aged Residential Dwellings or General Residential Dwellings are to be developed thereon (RSIFC para 22; admitted ASIFC para 6).
The applicants do not concede that the property is zoned 'Residential' for the purposes of TPS 4. The applicants assert that the property is zoned Urban Development. The applicants say that zoning categorisation arises by reference to the Lake Road Precinct B Structure Plan, the regulatory status of which is that it need be given 'due regard' rather than apply strictly in its terms, for the purposes of a decision-maker exercising a discretion concerning the planning laws. The applicant contends that as the property is not zoned Residential in absolute terms by TPS 4, it is not the case that use and development of the property as a park home park is prohibited by TPS 4. First, the Tribunal notes that the Zoning Table of TPS 4 makes no reference to Urban Development. Secondly, the use and development of land as park home park is prohibited in all zoning categories identified in the Zoning Table except General Rural and even then it is limited by the need to 'complement the primary productive use of land' (cl 3.2.4 of TPS 4). Thirdly, the provisions of cl 3.2.10 of TPS 4 contemplate expressly further sub-categorisation of Urban Development zoned land for residential and associated purposes by way of an external and separate Structure Plan. The Tribunal concludes that in these circumstances the Lake Road Precinct B Structure Plan is incorporated into the terms of TPS 4 and by reason the property is zoned Residential. Alternatively, the Tribunal concludes that it is more probable than not that the terms of the Lake Road Precinct B Structure Plan would be given full effect on that issue if it needed to be considered in a planning law context. Further, the applicants in their application for planning approval referred to the property as being 'established and zoned as infill residential site' thereafter the applicants referred at all times to the relevant residential design codes for the property rather than the design requirements applicable to the CC Act and regulations. The Tribunal concludes that for the purposes of this proceeding the property is zoned 'Residential'.
The applicants' planning approval was granted by the Metropolitan East Joint Development Assessment Panel (JDAP). It is an uncontroversial proposition that the terms of TPS 4 has the full force and effect as if it were enacted by the PD Act, once it has achieved Ministerial approval and published in the Government Gazette (s 87(4) of the PD Act). It is also an uncontroversial proposition that, where a discretion is being exercised by the JDAP pursuant to the PD Act and TPS 4, a determination thereby is to be treated 'as if' the determination were a by the responsible authority, in this case the respondent (reg 18 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) and s 4 of the PD Act). The respondent is and was at all material times aware of the terms of the applicant's planning approval and its limitations.
The applicants applied to the respondent on 12 June 2017 for the grant of, what both parties agree was intended to be, a PHP licence pursuant to s 7 of the CC Act. Such a licence, if granted, would authorise the applicants to operate a park home park type of caravan park as defined by the CC Act from the property. The application to the respondent pursuant to s 7 of the CC Act was refused by the respondent on 11 September 2017.

The orders sought

Upon review by this Tribunal of the respondent's refusal to grant to the applicants a PHP licence, the applicants seek an order setting aside the respondent's refusal and in substitution thereof, an order granting the applicants a PHP licence in respect of the property as applied for.

The Tribunal's jurisdiction and power

By reason of s 27 of the CC Act, a person aggrieved by a local government's decision made under s 7 of the CC Act may apply to the Tribunal 'for a review of that decision'. As such, an application made pursuant to s 27 of the CC Act is one that falls within the Tribunal's review jurisdiction as provided for by s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and which review is to be conducted in accordance with the CC Act and the SAT Act. This proceeding falls within the Tribunal's review jurisdiction.
The purpose of the Tribunal's jurisdiction is to undertake a merits review of the reviewable decision and to arrive at the correct and preferable decision as at the time of the Tribunal's decision (s 27(2) of the SAT Act). The Tribunal's review is a hearing de novo and the Tribunal may take into account material that was not before the original decision-maker, whether or not that material existed at the time of the reviewable decision (s 27(1) of the SAT Act). The Tribunal may take into account the original decision-maker's reasons for decision but is not limited by those reasons in undertaking the review (s 27(3) of the SAT Act).
The Tribunal, on review, has all the functions and discretions corresponding to those that may have been exercised by the original decision-maker (s 29(1) of the SAT Act).
The Tribunal may make any order the Tribunal considers appropriate and may affirm vary or set aside the reviewable decision and in the latter case it may substitute its own decision or refer the matter to the original decision-maker for consideration in accordance with directions or recommendations that the Tribunal considers appropriate (s 29 of the SAT Act). The orders sought by the applicants are within the Tribunal's power to grant.

The original application and the refusal

As stated, on 12 June 2017 the applicants, as the owners of the property and as the proposed park home park operators and licensees, applied to the respondent for a licence pursuant to the CC Act which was referred to in the correspondence attached to the application as a 'camping licence' (Exhibit 8 No 86 pages 23132321). However, it is agreed that what was sought at all material times was a PHP licence. There was no issue in this proceeding that the applicants had met the formal requirements and had paid the correct fee for the application. It is apparent from the application made on 12 June 2017 that the applicants' agent had been in discussion with representatives of the respondent prior to 12 June 2017 concerning the inter-relationship of the foreshadowed application for a PHP licence and the terms of the applicants' planning approval or the inconsistency between the two.
By the letter dated 11 September 2017 the respondent notified the applicants of its decision to refuse the applicants' application for the PHP licence. The respondent's refusal letter (Exhibit 8 No 107 page 2668) provides:
… the City is of the view that it is unable to consider a … [PHP licence] … for an approved development where the granting of this licence would change the land use classification of the development
The basis of the respondent's refusal is that the operation of a park home park on the property would result in the applicants using the property in a manner for which the applicants had not obtained planning approval and which is a use and development for which the applicants must obtain planning and approval. The respondent's position was and is that the applicants had obtained planning approval for, relevantly, Aged Persons Dwellings use classification, a specific type of Group Dwelling use classification (specifically, 39 Aged Persons Dwellings) and not for the 'Caravan Park/Home Park' use classification referred to in TPS 4. Further, the respondent contends that the applicants could not have obtained and could not now obtain planning approval for the Caravan Park/Home Park use classification in respect of the property, because approval of such use of the property is prohibited by TPS 4.

The application and the proceedings before the Tribunal

After the commencement of this proceeding on 4 October 2017, the application was listed for directions on 4 December 2017 which was adjourned to 12 February 2018 and then adjourned to 12 March 2018. On 12 March 2018 by an order, the Tribunal extended an invitation to the respondent to reconsider its decision by 13 April 2018. The proceeding was listed for further directions on 16 April 2018 as the respondent notified the applicants of its reconsidered decision, following its reconsideration, to again refuse the applicants' original application and affirmed its original refusal.
The reconsideration took place following the provision of additional material by the applicant to the respondent comprised in the applicants' supplementary bundle of documents filed 12 June 2018 (Exhibit 9).
On 16 April 2018 the Tribunal made orders directing the parties to file and serve on each other the statement of issues, facts and contentions and all documents and material relevant to the Tribunal's review, their witness statements and final submissions. The proceeding was listed for final hearing on 14 June 2018.

The hearing and evidence before the Tribunal

At the final hearing the following documents were before the Tribunal:
1)The respondent's bundle of documents comprising over 3,000 pages (Exhibit 8); and
2)The applicants' supplementary bundle of documents comprising 26 pages (Exhibit 9).
Exhibit 8 is largely comprised of the documents and correspondence concerning the applicants' planning approval, their application therefor and correspondence between the parties from as early as 2013 in anticipation of the applicants' planning approval application (pages 12311). These documents are not relevant to the issues in dispute in this proceeding. The documents of significance in Exhibit 8 are the following:
(a)The applicants' planning approval.
(b)The applicants' application for the applicants' planning approval.
(c)The applicants' application for the PHP licence.
(d)The applications for the issue of building permits in respect of future lots 13, 6 and 12 at the property and the issued Permits.
There is no document of significance in Exhibit 9 as it comprises largely letters between the parties' solicitors locked in debate about the issues to be determined by the Tribunal in this proceeding.
The following witness statements were before the Tribunal:
•The statement of Mr M Ryan, the Health Services Coordinator employed by the respondent (Exhibit 1). This was an agreed exhibit and no oral evidence was led. Mr Ryan was not crossexamined. The evidence is of no relevance to the issues in dispute in this proceeding.
•The statement of Mr J Campbell, a Building Surveying Officer employed by the respondent (Exhibit 2). This is an agreed exhibit and no oral evidence was led. Mr Campbell was not crossexamined. The only evidence in Mr Campbell's witness statement that is relevant to the disputed issues is that in respect of the Building Permit applications made to the respondent for future lots 13, 6 and 12 at the property, the plans attached did not mark any 'wheels, chassis, axles, tie downs or tow points'. For the reasons that follow, the Tribunal finds that this statement is correct, except in the case of the word 'chassis'.
•The statement of Mr R Ferrin, a Senior Building/Health Compliance Officer employed by the respondent (Exhibit 3). This is an agreed exhibit and no oral evidence was led. Mr Ferrin was not crossexamined. Mr Ferrin's evidence is the same as Mr Campbell's evidence but is limited to the Building Permit applications made to the respondent in respect of future lots 6 and 12. For the reasons expressed the Tribunal makes the same finding as above in relation to Mr Campbell's evidence.
•The statement of Mr N Grundy, Coordinator of Building Services Residential employed by the respondent who is a registered Building Surveying Practitioner (Exhibit 4). Mr Grundy gave affirmed evidence and tendered his witness statement which was largely agreed. The relevant evidence given by Mr Grundy concerns the Building Permit application made to the respondent in respect of future lots 6 (a design referred to as a 'B' unit in the applicants' planning approval) and 12 (a design referred to as a 'C' unit in the applicants' planning approval). Mr Grundy gave evidence that he caused the respondent to grant the Building Permits for future lots 6 and 12. In his witness statement he says that in relation to the Building Permit issued and granted in respect of future lot 6, the application therefor contained a drawing S-102 dated 11/5/2018 (and marked Revision No 1 dated 19/03/2018) and further stated that the drawing shows 'wheel rollers for the transportable concrete slab to enable pulling of the slab on site into its final position'. The drawing annexed to Mr Grundy's statement 'S-102' states 'GROUND UNDER WHEEL ROLLERS SHALL BE COMPACTED ROAD BASE OR SIMILAR TO ENABLE PULLING THE UNIT FORWARDS'. These documents appear to have post-dated the original application for the Building Permit. The evidence of the circumstances how that occurred is not before the Tribunal. This is the only evidence from Mr Grundy's witness statement and crossexamination that is relevant to the issues in dispute along with the annexure of the Building Permit issued and granted in respect of future lot 6 at the property. Mr Grundy was cross examined about matters that in the Tribunal's opinion are beyond his expertise and qualifications such as matters concerning the constitution of a 'park home' as defined by the CC Act.
•The witness statement of Mr A Van Der Plas, a Senior Strategic Planner employed by the respondent who is a qualified and experienced expert in the field of urban and regional planning (Exhibit 5). Mr Van Der Plas gave affirmed evidence and tendered his witness statement and was crossexamined.
•The witness statement of Mr C Verwey, who is a qualified and experienced expert in the field of urban and regional planning (Exhibit 6). Mr Verwey gave affirmed evidence and tendered his witness statement and was crossexamined.
The planning experts, Mr Van Der Plas and M Verwey, gave evidence concurrently. The evidence given by the expert planners relevant to the disputed issues is that the applicants' planning approval concerned 39 Aged Persons Dwellings, which contemplates the group dwellings to take the form of transportable, moveable or modular homes as is noted in the drawings comprising the applicants' planning approval. The balance of their evidence concerns the planning laws, the terms of TPS 4 and matters that are not relevant to the disputed issues or concern matters of law on which they are not qualified to give opinion evidence. As this proceeding was not a planning dispute, their relevant evidence had limited relevance.
•The redacted statement of Ms L Butler (Exhibit 7). Ms Butler gave affirmed evidence and tendered her redacted witness statement and was crossexamined. Ms Butler gave evidence that she is a director of Scenic Lake Estate Pty Ltd (SLE), the residential developer engaged or to be engaged by the applicants for the development of the property. She gave evidence that the first named applicant is also a director of SLE and that she is the applicants' daughter.
Ms Butler purported to give evidence of the intention of SLE in respect of the applicants' planning approval application. She does not give evidence that she is the managing director or chief operating officer of Scenic Lake Estate Pty Ltd or that she is authorised by the board of directors of SLE to give evidence of the intention of that company in this proceeding. The role of SLE in this proceeding or in the applicants' development approval application is not established. The Tribunal is not persuaded that Ms Butler was authorised by SLE to give any evidence concerning that company and further is not persuaded that SLE's intention in any matter is relevant to this proceedings. SLE is not the party that made the application for the applicants' planning approval, albeit that one director of SLE is also an applicant in this proceeding. There is no relevant connection established between SLE and this proceeding.

Further, the evidence of the 'applicants' intention' in applying for the applicants' planning approval is not a matter that can be established by the subjective evidence of either of the applicants, and less still a third party. The applicants' intention objectively arises from the documents concerning the application for planning approval (Exhibit 8 No 46 pages 1128-1275; No 47 page 1276; No 97 pages 2625-2651; No 98 page 2652).
Most significantly, however, the evidence of the intention of the applicants or any agent of the applicants in making the applicants' planning approval application is not relevant to this. The grant of the applicants' planning approval is identified in documents comprising the same issued by the JDAP (Exhibit 8 No 74 pages 1908-1932; No 108 pages 2669-2685). The applicants' subjective intention does not and cannot change the grant which is clearly and unambiguously specified in writing. In any event, the Tribunal finds on the objective evidence of the applicants' application for planning approval and their application for an amendment to the JDAP's grant of approval that the applicants did not express any intention therein to the respondent or the JDAP that they applied for any use and development other than 39 Aged Persons Dwellings and the stated ancillary uses as granted; see in particular Exhibit 8 No 46 page 1166). The Tribunal places no weight on Ms Butler's evidence of any intention allegedly held by any entity with respect to the making of the applicants' planning approval application, the grant of the applicants' planning approval or the making of any application pursuant to the CC Act.
Ms Butler gave evidence of the video shown to the Tribunal (MFI 10) which the Tribunal has not received as an Exhibit. Although the video was shown to the Tribunal, Ms Butler gave evidence that it was not the applicants' intention to engage the business depicted in the video to construct the form of habitation that would be placed on the future lots at the property and that it was not the applicants' intention to acquire or require the product depicted in the video to be paced on the future lots at the property. The video seemed to serve no other purpose than to depict what was similarly depicted in Exhibit 8 No 116 pages 2981-2984 as a rough guide to what the proposed form of habitation on each future lot at the property would constitute. As nothing in the video was relevant to the disputed issues in this proceeding, the video is not accepted as an Exhibit.
Ms Butler also gave evidence that the applicants would do what was necessary to ensure that the form of habitation placed on the future lots at the property met the definition of 'park home' for the purposes of the CC Act. Ms Butler was not able to give evidence of exactly what it was that the applicants' asserted is a 'park home' for the purposes of the CC Act and what it was that the applicants' intend as a form of habitation at the property. Ms Butler's evidence on this point amounted to no more than a statement that the applicants would comply with the Tribunal's determination of what a 'park home' is for the purposes of the CC Act. There was no evidence given by Ms Butler that is relevant to the disputed issues in this proceeding.

The Act and Regulations The statutory scheme

What is a facility?

The term 'facility' is defined by s 5 of the CC Act to mean a caravan park or camping ground. Those terms are defined. The definition of 'camping ground' is not a relevant consideration in this proceeding. A 'caravan park' is defined to mean 'an area of land on which caravans, or caravans and camps, are situated for habitation'.
The facility types are prescribed for the purposes of s 6(1) of the CC Act and by reg 41 of the Caravan Parks and Camping Grounds Regulations 1997 (WA) (CC Regulations). Regulation 41 of the CC Regulations refers to Sch 2 and identifies the prescribed facilities in Column 2. There are only six types of facilities. Schedule 2 identifies a park home park as a prescribed type of facility.

What is a facility licence?

Section 6 of the CC Act prohibits a person from operating a facility or a facility of a prescribed type unless the person holds the appropriate licence granted in relation to that facility. Regulation 41 of the CC Regulations prescribes the appropriate licence for each of the six prescribed facilities. The appropriate licence in respect of each facility is the licence referred to in Column 1 of Sch 2 of the CC Regulations, directly opposite and corresponding to the prescribed facility. Schedule 2 identifies a PHP licence as an appropriate licence for a park home park facility.

What is a park home park?

A park home park is defined by reg 3 of the CC Regulations to mean a caravan park at which park homes 'but not any other caravans or camps' are situated for habitation. Therefore, a park home park is defined by the CC Act and Regulations as a subset or type of a caravan park. As a park home park is a prescribed facility for the purposes of the CC Act and Regulations and an appropriate corresponding licence is required by s 6 of the CC Act before any person may lawfully operate a park home park, there is no additional requirement for the applicants to have applied also for and been granted a caravan park licence in order to be granted a PHP licence. Regulation 9 of the CC Regulations limits the lawful occupation of a park home to a 'caravan park licensed under the Act'. Regulation 9 of the CC Regulations simply prohibits a person occupying a park home on land that is not the subject of a licence that has been granted under the CC Act and Regulations of a type in respect of which at least caravans of all types maybe positioned.
As a park home may be positioned in a licensed caravan park the fact that a licenced caravan park accommodates a caravan that meets the definition of a park home, does not mean that the caravan park is also operating as a park home park or that the operator must obtain a PHP licence. In that case, the operator of the caravan park requires a caravan park licence.
Put simply then, a park home park is a caravan park that accommodates park homes exclusively. That area of land must be identified and specified and may form part of a lot and may be associated with but separate from a caravan park that accommodates caravan of all descriptions and camps.
The Tribunal concludes that reg 9 of the CC Regulations does not require a proposed park home park operator to apply for both a caravan park licence and a PHP licence in respect of the same area of land. Accordingly, the Tribunal concludes that the applicants' original application could not have been refused merely because the applicants are not also the holders of a caravan park licence. This is an issue raised by the respondent in this proceeding.
It follows from the definition of park home park, that the form of habitation must be 'park homes' rather than any other caravans or camps. The definition does not exclude other fixed structures or fixtures that are not within the jurisdiction of the CC Act and Regulations from being placed on the land as part of the park home park. The CC Regulations contemplate certain buildings such as a managers' house, an office, a shop and a recreational facility being built on the facility land (see Sch 7 cl 11 of the CC Regulations). Therefore, the fact that the applicants' proposed 'park home park' includes buildings for the manager's residence, a sales office and a recreation centre, does not exclude the applicants' proposed operation from falling within the definition of park home park. Accordingly, the Tribunal concludes that the applicants' original application could not have been refused because the property provided habitation by way of buildings as well as park homes. This is an issue raised by the respondent.

When is a PHP licence required?

In this proceeding the applicants contend that they intend to operate a park home park from the property by which they mean that all forms of habitation on the future lots at the property will be park homes and no other type of accommodation will be available, save for the manager's home. Therefore the applicants say they seek to operate 'a caravan park at which park homes and not any other caravans or camps, are situated for habitation'. Such an operation meets the definition of a park home park as defined by reg 3 of the CC Regulations if the forms of habitation are as a matter of law and fact park homes as defined by the CC Act and Regulations.
A PHP licence is specific to the applicants who must be the proposed operators of the proposed park home park and it is specific to the area of land that is identified as comprising the proposed park home park. This much is clear from the combination of s 7(5), s 7(6)(a) and s 10 of the CC Act and Schs 5, 6 and 7 and Sch 1 Form 2 of the CC Regulations. Any facility licence, when granted, has a duration of 12 months (s 8(a) of the CC Act and reg 52 of the CC Regulations) and may be cancelled by the relevant local government (s 8(b) and s 12 of the CC Act). The grant of the licence does not run with the land and is not transferrable from the licensee to another person.
It is therefore obvious from the statutory scheme that a PHP licence will be required if it be the case that the applicants' intend the form of habitation to be exclusively 'park homes' as defined by the CC Act and Regulations. If the applicants do not intend to operate a park home park or if the applicants' proposed form of habitation on the property is not as a matter of fact and law exclusively 'park homes' as defined by the CC Act and Regulations, then their application to the respondent would have been correctly and properly refused albeit because of lack of utility and relevance to the proposed operations of the applicants.
The question then arises in this proceeding: is the applicants' proposed operation at the property correctly and properly defined as a park home park? The answer to that question depends on whether the proposed form of habitation on the property is exclusively park homes. That issue is to be determined by reference to:
(a)what exactly is the form of the habitation to be provided by or permitted by the applicants on the property; and
(b)is that form of habitation a park home within the meaning of the CC Act and Regulations?

What is a park home?

The phrase 'park home' is defined by s 5(1) of the CC Act as:
[A] vehicle of a prescribed class or description that is fitted or designed for habitation[.]
The word 'caravan' is, relevantly, defined by s 5(1) of the CC Act as:
[A] vehicle that is fitted or designed for habitation[.]
Because of the demonstrated coincidence of definitions of 'caravan' and 'park home' in the CC Act, the Tribunal has concluded that a park home is a type of caravan as they both:
(a)must be vehicles; and
(b)must be fitted or designed for habitation.
The word 'vehicle' is defined by the CC Act as:
[A] conveyance (other than a train, vessel or aircraft) capable of being propelled or drawn on wheels[.]
The word 'conveyance' is not defined in the CC Act nor the Regulations. The Macquarie and Oxford English Dictionaries respectively define the noun 'conveyance' as a means of conveyance and a means of transport from place to place. The object must be more than merely moveable and capable of movement. Rather, for the object to be a 'vehicle' for the purposes of the CC Act, it must be a means of transport and not merely moveable or capable of movement.
Further that 'conveyance' or means of transport must be the function of the wheels of that object for the purposes of the CC Act and Regulations. Both a caravan and a park home must meet this definition. If the applicants' proposed form of habitation at the property does not meet that definitional requirement then it cannot be a 'park home' as provided for by the CC Act and Regulations and an application for a PHP licence pursuant to s 7 of the CC Act would have been futile.
The difference between a caravan and a park home is that a 'park home' is a vehicle or a means of transport of a particular class or description.
In short, a 'park home' must meet three tests:
(a)it must be a means of transport to be a conveyance and therefore a vehicle as defined;
(b)it must be a vehicle of a class or description as provided for by the Regulations; and
(c)it must be fitted or designed for habitation.
Only tests (a) and (b) are significant in this proceeding.
The prescribed class or description of 'vehicle' that is a park home is to be found in reg 4 of the CC Regulations:
(1)A caravan in respect of which a vehicle licence is not required under the Road Traffic (Vehicles) Act 2012 section 4, because it could not be drawn by another vehicle on a road due to its size, is a vehicle of a prescribed class or description for the purposes of the definition of 'park home' in section 5(1) of the Act.
(2)In subregulation (1)
road has the meaning given in the Road Traffic (Administration) Act 2008 section 4.
(Tribunal emphasis)
Therefore the prescribed class or description of vehicle that meets the definition of a 'park home' for the purposes of the CC Act is a means of transport, designed or fitted for human habitation (excluding boats, trains and aircrafts) that is capable of propulsion or being drawn on and by reason of the function of its wheels (that is and hereafter compendiously referred to as a caravan as defined by the CC Act) and for which a vehicle licence is not required under s 4 of the Road Traffic (Vehicles) Act 2012 (WA) (RTV Act) because the caravan cannot not be drawn by another vehicle on a road as defined by s 4 of the Road Traffic (Administration) Act 2008 (WA) (RTA Act) 'due to its size'.
There must be a causal link between the size of the caravan and its inability to be drawn along a road so that the vehicle is not required to be licenced pursuant to s 4(1) of the RTV Act. The cause or reason why the vehicle is not required to be licenced pursuant to s 4 (1) of the RTV Act cannot be because some other reason.
Relevantly, s 4(1) of the RTV Act provides:
A vehicle licence is required for a vehicle of a prescribed class.
Section 4(2) of the RTV Act provides for an offence if a vehicle without a current license is used on a road which is subject to s 4(3), (4) and (5) of the RTV Act. The words 'vehicle' or 'vehicle of a prescribed class' are not defined in the RTV Act. However, s 3(2) of the RTV Act provides that the RTV Act incorporates the definitions provided for in the RTA Act when words are not defined by the RTV Act. Section 3 of the RTA Act provides:
vehicle includes
every conveyance, not being a train, vessel or aircraft, and every object capable of being propelled or drawn, on wheels or tracks, by any means[.]
It is a similar (but wider) definition to that provided for in s 5(1) of the CC Act.
Regulation 15(1) of the Road Traffic (Vehicles) Regulations 2014 (WA) (RTV Regulations) prescribes the vehicles for the purposes of s 4 of the RTV Act and provides that a vehicle licence is required for a vehicle that is a 'motor vehicle' or a 'trailer'. A 'trailer' is defined by reg 3 of the RTV Regulations to mean a 'vehicle without its own motive power that is built to be towed, or is to be towed, by a motor vehicle…'. Prima facie, a 'caravan' and therefore a 'park home' fall within the definition of a trailer.
Some vehicles are excluded from needing to be licenced but they are specified (reg 15(2) of the RTV Regulations). A park home does not fall within those exclusions. The term 'caravan' is not otherwise used in the RTV Regulations save in respect of the requirement of a heavy vehicle licence (reg 38 of the RTV Regulations) where caravan is referred to as a 'trailer derivative'. A caravan, that is a trailer derivative, will require a TSV if it does not exceed the maximum permissible axle mass loading or an OSV1-9 assuming it has between 1 and 9 axles (reg 38 of the RTV Regulations). It should be noted that whilst 'axle' is not defined in the RTV Act or the RTV Regulations, it is defined by s 4 of the RTA Act (and relevant to the RTV Act and the RTV Regulations as explained above), to mean 'one or more shafts positioned in a line across a vehicle, on which one or more wheels intended to support the vehicle turn'. The maximum width for any vehicle including a trailer and caravan is 2.5 metres (reg 171 of the RTV Regulations). There is also a limit on the length of the trailer/ caravan as well but that is a measurement that requires identification of the 'point of articulation' of the trailer, the measurement of the 'rear overhang' of the trailer, and the radius of the trailer aft of the point of articulation of the trailer. None of these fact, calculations or measurements were the subject of evidence or information before the Tribunal. Nor was there any evidence of the axle mass loading of the applicants' proposed form of habitation.
As a matter of statutory interpretation, a 'park home' for the purposes of the CC Act and Regulations is a means of transport (vehicle) that is a trailer (caravan) which but for its size would need licencing under s 4 of the RTV Act, so as to be capable of being drawn by another vehicle on a road by utilising the function of its wheels. If it is a trailer that is not capable of being drawn along a road because it cannot be licensed pursuant to s 4 of the RTV Act because it does not meet the regulatory requirements of the RTV Regulations, it cannot be a park home regardless of its size. Further, if it is an object that is moveable rather than a means of transport it fails to meet the essential element of what is a 'vehicle' under both the RTV Act and Regulations and the CC Act and Regulations.

What is the applicants' proposed form of habitation and is it a park home?

The best that the applicants have been able to establish is that their proposed form of habitation is similar to but not identical as depicted in MFI 10, the object depicted in Exhibit 8 No 116 pages 29812984 and as drawn in the Building Permits granted by the respondent in respect of future lots 13, 6 and 12.
The three Building Permits and plans and applications for building permits contained in Exhibit 8 concerning the forms of habitation proposed for future lots 13,6 and 12 each identify:
1)section A-A of the proposed building noting floor joists and 'chassis'; and
2)that each component of the building is over 2.5 meters in width.
The applicants' proposed form of habitation and each component thereof exceed the maximum width of a vehicle that may be licensed pursuant to s 4 of the RTV Act.
Exhibit 8 No 112 page 2757 shows a drawing of a wheel assembly. There is no reference to 'chassis' in that drawing. The statement of Mr Grundy, the Building Surveyor for the respondent, annexes a Building Permit issued 21 May 2018 in respect of the structure to be constructed on future lot 6. The future lot 6 Building Permit authorises building work thereon (which includes placing a building on land (see s 3 of the Building Act 2011 (WA) (Building Act)) in accordance with the plans and specifications specified in the applicable certificate of design compliance. The future lot 6 certificate of design compliance refers to an engineer's signed drawings (by Joel Ancheta) numbered S-100, S101, S-102 and S-103. The word 'chassis' does not appear in these drawings but there is a drawing of a wheel assembly. Mr Ancheta's drawing of a wheel assembly is less detailed than the one in Exhibit 8 No 112 page 2757. That wheel assembly drawing is signed by Michael Young, an engineer from Prompt Engineering and although it bears the same plan number as for the future lot 13 Building Permit it does not bear a stamp of receipt by the respondent for any of the future lots at the property. It also remains unexplained how the Building Permit for future lot 6 attached to Mr Grundy's statement includes as part of the design compliance a drawing of the wheel assembly (S-100 to S103) by Mr Ancheta as that drawing is not attached to the copy of the Building Permit issued by the respondent that appears in Exhibit 8 No 113 at pages 2759-2869. No evidence has been called by Mr Young who drew the wheel assembly (Exhibit 8 No 112 page 2757) that seems unrelated to the Building Permits granted for future lots 13, 6 and 12 and further does not bear a receipt by the respondent in relation to the Building Permit for future Lot 13. That engineering detail is irrelevant as it is not connected to any of the Building Permit applications or any of the Building Permits that have been granted by the respondent. The applicants have failed to establish the relevance of Mr Young's drawing. The wheel detail shown in the future lot 6 Building Permit annexed to Mr Grundy's statement however shows that for 12 meters in length of the form of habitation '4 sets of wheels are required' and over that length '6 sets of wheels' are required (S-100). There is no identification of how many 'wheels' comprises a set.

What the applicants appear to be advancing as a proposed form of habitation on the future lots at the property is a building, the supporting structural beams of which are fitted with a bracket housing a circular hollow mild grade steel sections of piping, 140 millimetres in length, 5 millimetres thick and 139.7 millimetres in diameter to rotate around a shaft slightly longer than 140 millimetres. The bracket is to be connected to another bracket by the combination of locking rings. The other bracket encases the bottom of the supporting beam of the building and is bolted to and through the beam to hold both brackets and pipe in position. Photographs of that assembly or similar appears in Exhibit 8 No 116 pages 2981-2984. It is obvious that the shafts around which the piping is to rotate do not extend the width of the building so as to meet the definition of axel in the RTV Act referred to above and the Tribunal so finds.
The Tribunal rejects the applicants' contention that the form of habitation depicted is a vehicle because it is not a means of transport. It is a habitable structure that can withstand movement from one location to another and only relatively minor movement utilising the metal pipe rollers affixed to the supporting beams of the structure. The ability to roll the object a short distance into the right point on the future lot is for the sole purpose of locating it onto the mushroom or donut footings that will be required to stabilise it on the future lot. The rollers are not fixed to the object to make it and it is not, a means of transport.
Second, even if it were a 'vehicle' contrary to the Tribunal's conclusion above, the Tribunal is not satisfied that the applicants proposed form of habitation as depicted is capable of being drawn along a road regardless of its size. There is no evidence that it meets any of the regulatory requirements of the RTV Regulations so as to be otherwise capable of being licenced pursuant to s 4 of the RTV Act but for its size. It is however obvious that short sections of metal cylindrical piping that allow the object to be rolled a short distance into place onto a its footings on a future lot on the property following its freighting and craning to the property do not meet the regulatory requirements to be licenced to be drawn along a road as provided for by the RTV Regulations. The mere attachment of metal cylindrical sections of piping to the supporting beams of a structure does not make them 'wheels' and does not make the form of the pivot point of those small sections of metal piping 'axles'. The attachment of those objects and devices to the beams of the structure and the renaming of the structural frame as a 'chassis', the metal pipes used as rollers 'wheels' and the pivot point for the rollers as 'axles' in drawings does not turn the structure as a matter of law and fact into a 'vehicle', a 'trailer' and a 'park home' for the purposes of the CC Act and Regulations and the RTV Act and Regulations. The proposed form of habitation and its components are in fact too wide to be drawn along a road by another vehicle but that is not the only reason why they do not require licencing. The applicants' proposed form of habitation is a building and that explains why the structure makes no attempt at all to otherwise meet any of the RTV Regulatory requirements for licencing.
The Tribunal indicated during the hearing that there was an absence of technical expert evidence concerning the question whether the applicants' proposed form of habitation complied with the regulatory requirements of the RTV Act and Regulations apart from its size. The applicants did not call any such evidence and asserted such was not relevant as the habitation would have the wheels and 'axles' depicted in the photographs (Exhibit 8 No 116 pages 2981-2984). The Tribunal rejects the applicants' contention for the reasons explained.
Further, whilst the applicants asserted that all that was required of a 'park home' as defined by the CC Act and Regulations was that it could be moved within 24 hours of detachment from the services and detachment of the components comprising the park home (reg 15 of the CC Regulations) in order to establish the necessary limited degree of 'mobility' as asserted by them, the applicants did not provide to the Tribunal any evidence as required by reg 32(2)(c) of the CC Regulations. That regulation requires that the park home must meet the requirements of a 'professional' engineer's signed certificate certifying:
that the design of the chassis, axles and wheels of the park home, or each component of the park home, are adequate structurally to bear the weight of the park home, or the component of the park home to which they are attached, and to enable the park home, or component of it to which they are attached, to be drawn by another vehicle without structural alteration or damage to the park home.
(Tribunal's emphasis added)
The applicants have not produced to the Tribunal such a certificate nor have the applicants produced to the Tribunal any expert evidence of the structural integrity and adequacy of the design of anything that is a chassis, axle or wheel to bear the weight of the structure to enable it to be moved any distance at all without structural alteration or damage thereto. To the contrary, the photographs at Exhibit 8 No 116 pages 2981-2984 depict a form of habitation similar to what is proposed by that applicants that requires significant repairs because of damage to the structure from an attempted transport of the object onto the property (see ts 189, 15 June 2018). The Building Permits do not concern themselves with the structural integrity of moving objects. The certificates of design compliance called for under the Building Act are concerned with buildings and no means of transport from one place to another. The Tribunal concludes that the Building Permits do not suffice for the purposes of reg 32(2)(c) of the CC Regulations
The Tribunal concludes that on the evidence it is not satisfied that what the applicants have advanced as the form of the proposed habitation to be placed on the future lots of the property is a vehicle and is a park home for the reasons expressed. The modification of the transportable or modular structures with metal rollers on the bottom and a removable tow hitch as depicted in Exhibit 8 No 116 pages 2981-2984 is suggestive of mere affectation to give the appearance of compliance with the definition of a 'park home' for the purposes of the CC Act and Regulations.
Accordingly, the Tribunal concludes that the decision to refuse the applicants' application for the grant of a PHP licence was correctly and properly refused by the respondent. The applicants' application to the respondent pursuant to s 7 of the CC Act was futile and irrelevant to the operation that the applicants in fact intend to undertake on the property a group dwelling operation involving 39 Aged Person Dwellings. For this reason the Tribunal shall affirm the respondent's decision to refuse the applicants' application for a PHP licence made on 12 June 2017 pursuant to s 7 of the CC Act.

The applicants' remaining contentions

The development approval of DA 10.2016.421.1 and approved amendment by DA 10.2017.296.1 - relevance

The applicants contend that the applicants' planning approval is not a relevant consideration in the respondent's exercise of discretion to grant, refuse or grant conditionally the applicants' application for a PHP licence.
The premise of this contention is that s 7 of the CC Act does not expressly refer to the planning laws or planning and development approval for the use of the land. It is contended that the CC Act generally does not expressly require production of proof of planning and development approval for the use classification of property to test whether that approval is consistent with the proposed operation of a park home park on the property. The applicants contend that the lack of express reference in the CC Act to the same renders that such information as irrelevant to the issue of the grant of a licence to operate a park home park.
The applicants purported to demonstrate this proposition by example and references to Western Australian statutory provisions unrelated to the CC Act, where proof of the authorised use of the land and details of the approved development or consideration of the same is an express consideration or requirement for the grant of an approval, licence or permit. The underlying contention is that as the planning laws must be expressly referred to in the CC Act and/or CC Regulations, in order for the planning laws must be expressly to be relevant to the exercise of the discretion to grant, refuse or conditionally grant a facility licence pursuant to s 7 of the CC Act. As this proposition was not supported by any authority concerning statutory interpretation it is rejected. In any event, the Tribunal finds the examples relied upon by the applicants are not supportive of their contention.
The first example relied on by the applicants is s 20(1)(n), s 20(1)(o) and s 20(2) of the Building Act and reg 18(2)(b) of the Building Regulations 2012 (WA) (Building Regulations) (in combination, referred to as the 'Building Provisions').
The Tribunal concludes that a comparison between the CC Act and s 7 of the CC Act and the Building Provisions is not apposite or useful. The Building Provisions are both different in nature and purpose to the CC Act. The effect of the Building Provisions is to direct the 'permit authority' to grant a Building Permit if certain factual matters are met (largely the provision of documents of a prescribed type as proof of prescribed facts).
The second example raised at the hearing by the applicants' counsel is a reference to the Liquor Control Act1988 (WA) (LC Act) and the grant of a licence pursuant to the LC Act.
The LC Act provides for a means by which information concerning the planning laws and their application to the proposed licenced premises may be provided to the licensing authority and also provides that the means of communication may be dispended with (s 40 of the LC Act).
Section 7 of the CC Act provides a statutory method by which the local government may be informed of what an applicant may reasonably consider relevant to the exercise of discretion. What the local government may consider to be relevant is not expressly fettered by the CC Act and s 7 of the CC Act specifies a mechanism by which the local government may call on the applicant to provide the further information that the local government considers relevant. If the local government, as the licencing authority under the CC Act, already has the information it requires because it is the entity charged with the duty of managing the use and development of the land pursuant to the PD Act, there is no need for a facilitative provision concerning the production of that information the local government already has that information.

Is a park home also a dwelling for the purposes of the applicants' planning and development approval?

The respondent contends that the applicants' planning approval does not permit the applicants to operate a park home park from the property. For this reason the respondent refused the applicants' application for a PHP licence and contends that the applicants' application for the grant of a PHP licence should be refused by the Tribunal upon a review.
One of the applicants' contentions in response is that the applicant's planning approval includes and is consistent with the operation of a park home.
The premise of this contention is that a 'dwelling' as provided for by the planning and development approval, TPS 4 and the State Planning Policy 3.1 Residential Design Codes (R-Codes), to be read together, includes a park home because both are designed, used and intended for the purpose of human habitation and a dwelling may be 'moveable' or transportable. The propositions advanced in support of this contention are as follows:
1)The planning and development approval granted by JDAP to the applicants referred to above is primarily for use and development of the property as 39 Aged Person Dwellings with subsidiary recreation domestic; sales office (a use that is not listed) and manager's residence (a used that is not listed);
2)A 'dwelling' by reason of the R-Codes refers to 'a building or portion of a building … adapted, or designed or intended to be used for the purpose of human habitation ...';
3)A 'building' is defined in the R-Codes as any 'structure whether fixed or moveable, temporary or permanent, placed or erected on land …'; and
4)Therefore a dwelling includes a park home.
The applicants' contention is rejected by the Tribunal. A 'dwelling' for the purposes of the R-Codes must be a building as defined by the RCodes. A 'building' is defined by the R-Codes as a 'structure'. A structure is not defined by the R-Codes. A structure is not defined in the PD Act. The word 'structure' when used as a noun is defined in the Macquarie Dictionary relevantly as:
1.mode of building, construction, or organisation; arrangement of parts, elements or constituents.
2.something built or constructed; a building, bridge, dam, framework, etc.
In the context of the PD Act, the R-Codes and TPS 4, the word 'structure' means an edifice consistently with the etymology of that word as explained in the Oxford English Dictionary. By contrast, a park home is, by definition, a vehicle and a means of transport as explained above.
A 'park home' as defined by the CC Act and Regulations is not an edifice and not a building it is a vehicle and a means of transport.
The fact that 'a dwelling' is by definition of the RCodes 'a structure' that is used, adapted, designed or intended for use for the purpose of human habitation does not render a means of transport that is also adapted for human habitation, a 'dwelling' for the purposes of the R-Codes. The confusion in the applicants' arguments is that they seek to advance the twin inconsistent contentions that the form of habitation proposed to be placed on the future lots at the property is both a vehicle for the purposes of the CC Act and Regulations and a structure/building/edifice for the purposes of the R-Codes and the applicants' planning approval.
Having concluded that a park home is not a 'dwelling', the Tribunal concludes that the applicants' planning approval limited, relevantly to dwellings, does not extend, expressly or implicitly, to the operation of a park home park on the property. The Tribunal, having also concluded that the planning laws concerning the property are a relevant consideration to the respondent's exercise of the discretion to grant, refuse or conditionally grant a PHP licence to the applications in respect of the property, the Tribunal further concludes that the application for the grant of a PHP licence was correctly and properly refused by the respondent because the applicants have no authority to use or develop the property as a park home park under the PD Act and TPS 4.

The applicants' have received implicit approval to use and develop the property as a 'lifestyle village' and therefore a park home park.

The applicants contend that the applicants' planning approval was made by the JDAP in the context and knowledge that the applicants intended to operate a 'lifestyle village' and that in the JDAP in granting their application, a park home park operation is implicitly included and contemplated by the applicants' planning approval. The earlier argument was based on a park home being a dwelling and therefor as a matter of law the applicants' planning approval included approval to use and develop the property as a park home park. This contention is an alternative to that argument. The applicants contend that there is something in the facts leading to the grant of the applicants' planning approval that extends the applicants' planning approval to a park home park use and development of the property. As stated earlier subjective intention of the applicants or a third party is not relevant.
The premise of this contention is that the applicants' intended application for planning approval was made in respect of a development named: Scenic Lakes Lifestyle Village. Further, those words and in particular the words 'Lifestyle Village' equate with and conveyed their alleged intention to apply for approval to operate a 'lifestyle village'. As a 'lifestyle village' is something that is only found as a matter of law in this State in the Residential Parks (Long-stay Tenants) Act 2006 (WA) (RP Act), so the applicants' reasoning goes, their application should have been construed and understood as an application for the use and development of the property as a caravan park or park home park because the words 'lifestyle village' imply the same. Therefore, the applicants contend, the applicants' planning approval application implicitly approves their use and development of the property as a park home park. This contention was advanced in spite of the express statement in the applicants' application for planning approval for 39 Aged Persons Dwellings with no mention of a vehicle, wheel, park home or park home park therein.
A 'lifestyle village' as defined by the RP Act is simply an area of a caravan park or a park home park where the site (not necessarily the form of habitation) may be rented for more than three months or 90 days and the occupiers of those sites share a particular interest or quality (see the glossary to the RP Act). In this proceeding, it was put to the Tribunal that the interest was being over 55 years of age. A lifestyle village as provided for by the RP Act is not limited to a park home park. It may exist in a caravan park and need not comprise all of the area of either the caravan park or the park home park. The lifestyle village may be a defined area within a caravan park or park home park.
Lifestyle village is not defined in TPS 4, the R-Codes or in the PD Act. It is a statutory creation of the RP Act that operates in the context of a caravan park or park home park.
The fact that the applicants proposed to name the proposed development on their application for use and development of the property, by reference to the phrase 'lifestyle village' is inconsequential. They did not apply for that specific use and development as there is no such specific use and development and they did not apply for the appropriate and more general use and development of 'Caravan Park/Home Park' as provided for by TPS 4. Had the applicants intended to apply for planning and development approval to use and develop the property as a lifestyle village as defined by the RP Act , the correct use classification for them to have applied for is 'Caravan Park/Home Park' not Group Dwelling and more specifically 39 Aged Persons Dwelling.
The applicants did not apply for a use classification that would have authorised them to operate a caravan park or park home park lifestyle village. That is the reason why the applicants did not obtain the necessary planning and development approval to use and develop the property as a caravan park or park home park lifestyle village. The Tribunal rejects the applicants' contention that the grant of the applicants' planning approval includes a grant to use and develop the property as a park home park lifestyle village simply because they used the words ‘lifestyle village' in the style of proposed name of the development.
Further, as TPS 4 expressly provides that the use and development of the property, being land zoned residential as 'Caravan Park/Home Park' is prohibited. A grant of approval for the use and development of the property as a park home park could not have been made by the JDAP or the respondent even if the applicants had expressly made application for that use and development. Further, even if planning and development approval had been granted, for argument's sake, for the use and development of the property as a park home park by the JDAP, such grant would be ultra varies the decision maker's power conferred by the PD Act and TPS 4. Any purported grant of that kind would be void and of no effect. This argument is of no assistance to the applicants in any event.

The Tribunal also notes that whilst the applicants' application for planning approval is made by reference to 'transportable' and 'modular' homes, the applicants' planning approval expressly provides that after a period of 2 years from the date of the grant:
… or upon completion of stage 1, the applicant shall provide a plan illustrating final dwelling types assigned to each lease area. Any construction/replacement of dwelling types thereafter shall be subject to further development approval to the satisfaction of the Executive Director Development Services.
Any change to what is placed on the future lots at the property after the specified time will require approval for the removal or demolition of the habitation type. So, while the applicants' planning approval does contemplate transportable or modular forms of habitation capable of being moved on and off the future lots, albeit not park homes, the legal ability to move those transportable and modular homes on and off the future lots after a certain date is restricted. Thereafter each movement of the transportable or modular homes will require a fresh authority. That is inconsistent with the essential element of a park home and a park home park facility which is designed for use by objects that are a means of transport from place to place. The applicants' planning approval could not be construed as a purported grant of approval for use and development of the property as a park home park for that reason alone.

Conclusion

The Tribunal concludes upon review, the respondent's decision made on 11 September 2017 to refuse the applicants' application for the grant of a PHP licence was the correct and preferable decision. The Tribunal shall affirm the respondent's decision to refuse the applicants' application for a PHP licence.
As an order for costs of the proceeding was not the subject of any submissions or debate, the costs of the proceeding is reserved to a further direction hearing to be listed on a date to be fixed.

Orders

1.Upon review the decision made on 11 September 2017 by the City of Armadale to refuse the applicants' application for the grant of a PHP licence pursuant to s 7 of the Caravan Parks and Camping Grounds Act 1995 (WA) is affirmed.
2.The costs of the proceeding is reserved to a directions hearing to be listed on a date to be fixed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N OWEN-CONWAY, MEMBER
19 OCTOBER 2018