HUBBARD and CITY OF GOSNELLS
[2011] WASAT 97
•27 JUNE 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HUBBARD and CITY OF GOSNELLS [2011] WASAT 97
MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)
HEARD: 16 JUNE 2011
DELIVERED : 27 JUNE 2011
FILE NO/S: DR 416 of 2010
BETWEEN: STEVEN GEORGE HUBBARD
Applicant
AND
CITY OF GOSNELLS
Respondent
Catchwords:
Town planning Development application Refusal of commercial vehicle parking in General Rural zone Whether proposal should be considered to be a transport depot or commercial vehicle parking Scale of proposal Absence of property occupant/driver link Deemed to be a transport depot which is not permitted in zone Application dismissed
Legislation:
City of Gosnells Town Planning Scheme No 6, cl 5.11.3, cl 5.11.3(a), Table 1
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 31(1)
Result:
Application for review dismissed
Decision of respondent affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr J Algeri (Acting as Agent)
Solicitors:
Applicant: N/A
Respondent: Algeri Planning & Appeals (Town Planners)
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This is a review of the City of Gosnells' decision to refuse an application for commercial vehicle parking on a rural property in Kenwick.
The application was to park three prime mover vehicles and three trailers on land zoned General Rural under the City of Gosnells' Town Planning Scheme No 6.
The respondent argued that, by its characteristics, the proposal constituted a transport depot. A transport depot is a use not permitted in the General Rural zone.
The applicant argued that the proposal constitutes 'commercial vehicle parking', a use that can be permitted, at the respondent's discretion, in the General Rural zone. The applicant further argued that the proposal was consistent with other approvals and parking activities in the locality.
The Tribunal examined the prevailing planning framework and concluded that the nature of the proposal was unable to be reasonably accepted as commercial vehicle parking. This was because the proposal was substantial in nature, comprising three prime mover trucks and three trailers. Additionally, none of the vehicles would be driven by a resident of the property as required by the respondent's commercial vehicle parking policy.
The respondent's planning scheme emphasises that commercial vehicle parking is personal to the applicant. The respondent's policy further requires the involvement and responsibility of the occupant of the property to be the driver of the relevant commercial vehicle(s). These provisions infer that commercial vehicle parking is essentially personal and small in operational scale, and therefore distinct in character from a transport depot.
Whilst acknowledging the existence of other lawful, as well as some apparently unlawful, commercial vehicle parking in the locality, it was not otherwise apparent that the respondent has approved any other parking activities in the area directly comparable with this proposal.
Ultimately, the Tribunal agreed with the respondent's arguments and concluded that the proposal could not be accepted as constituting commercial vehicle parking as intended under the respondent's planning scheme and associated policy.
The proposal was accepted as constituting a transport depot, a use that is not permitted in the prevailing zone.
Accordingly the application for review was dismissed.
Introduction
This is an application for review of the City of Gosnells' (respondent) decision to refuse a planning application seeking approval for the parking of commercial vehicles at No 128 (Lot 14) Victoria Road, Kenwick (land, lot or Victoria road property).
The application was submitted to the respondent by Mr Steven Hubbard (applicant) on 23 August 2010.
The respondent sought additional information from the applicant which was seen to be necessary to properly assess the proposal. In the absence of that information, the respondent did not proceed to advertise the proposal and determine the application within the statutory time limit. Accordingly, the application was deemed to be refused.
The applicant lodged an application for review of the refusal decision with the State Administrative Tribunal (Tribunal) on 17 December 2010.
On 23 February 2011, the Tribunal ordered that the applicant provide relevant information to the respondent to assist determination and that, pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), the respondent consider the application at its scheduled meeting on 19 April 2011.
The respondent considered the proposal on 19 April 2011 in the context of the additional information provided by the applicant and subsequently determined that the application should be refused. This decision and the reasons therefor were conveyed to the Tribunal for further direction on 21 April 2011.
The proposal and its context
The land the subject of the proposal is a 2.310 hectare lot located in a rural area. It is surrounded by other rural lots and is within a poultry farm buffer zone.
The land supports two dwellings, an outbuilding, two horse stalls, a tennis court and a swimming pool.
The application under review is detailed as follows:
•The parking of three 6 metre long prime mover trucks and three 14 metre long trailers.
•A hardstanding area will be constructed for parking. It will be located at the rear of the property and will be accessed from Victoria Road by a driveway extending along the northwest boundary of the lot.
The applicant advised that the vehicles are used to transport homes. There will be no storage of fuel, oils or chemicals on the site. There will be only minor maintenance such as cleaning, servicing and wheel changing.
The occupants of the dwellings on the property are not associated with driving any of the prime mover trucks.
Statutory and policy instruments
The City of Gosnells Town Planning Scheme No 6 (TPS 6 or Scheme) identifies that the land is zoned General Rural.
TPS 6 provides a definition of a 'commercial vehicle' as follows:
commercial vehicle means a vehicle whether licensed or not and which is used, capable of being used, designed to be used or intended to be used in conjunction with a trade or profession and shall include trailers, tractors and their attachments, buses and earthmoving machines whether self propelled or not but shall not include a passenger car derivative as defined by the Vehicle Sales Regulations 1976 (as amended), a van, utility or light truck which is rated by the manufacturer as being suitable to carry loads of up to 1.5 tonnes.
Clause 5.11.3 of TPS 6 'Parking of Commercial Vehicles' - describes particular provisions relative to the parking of a commercial vehicle in any Rural zone.
Clause 5.11.3(a) of TPS 6 provides that in the case of granting an approval to park a commercial vehicle, 'the approval shall be personal to the applicant and shall not be transferred or assigned to any other person'.
Table 1 of TPS 6 identifies two use classes relevant with regard to assessing the appropriateness of the parking of commercial vehicles in particular zones. These are 'commercial vehicle parking' and 'transport depot'.
The use class 'commercial vehicle parking' is identified as a 'D' use in a General Rural zone. This means that the use is not permitted unless the local government exercises its discretion by granting planning approval.
The use class 'commercial vehicle parking' is not defined by TPS 6.
The use class 'transport depot' is identified as an 'X' use in the General Rural zone. This means that the use is not permitted.
The use class 'transport depot' is defined by TPS 6 to mean:
… any land or building used for the garaging or parking of motor vehicles used or intended to be used for carrying goods or persons for hire or reward or for any consideration or for the transfer of goods or persons from one motor vehicle to another such motor vehicle and includes the maintenance, management and repair of the vehicles used but not of other vehicles.
The respondent advises that the land is located within Precinct 2 of the Maddington Kenwick Strategic Employment Area (MKSEA). MKSEA is an area of rural land identified as having possible potential for industrial expansion.
The respondent has adopted Local Planning Policy 2.1 Commercial Vehicle Parking (LPP 2.1 or policy). The policy provides guidance in considering applications to park commercial vehicles on land where permitted by TPS 6.
Table 1 of the policy sets out criteria identifying acceptable and unacceptable standards for commercial vehicle parking.
It is relevant to note that at cl 4.6 of the policy, the expression 'commercial vehicle' where it appears in Table 1, may be taken to mean more than one commercial vehicle. It may also be taken to mean the vehicle itself and a trailer or attachments.
Table 1 of the policy specifies at criterion 1.1A that 'the commercial vehicle must form an essential part of the occupation of the occupant of a dwelling on the subject lot'.
At criterion 1.2A, it is further specified that 'the commercial vehicle shall only be driven by a person who is a bona fide registered occupant of a dwelling on the subject lot in any area'. This criterion may be varied (subject to advertising) by criterion 1.2B, which allows that 'within the MKSEA Precinct area, one vehicle may be approved for use by a nonfamily member of the occupier of the property'.
The respondent's decision
The application for the parking of three commercial vehicles and three trailers at the Victoria Road property was refused by the respondent for the following reasons:
1)The proposal does not comply with LPP 2.1 as the commercial vehicles will not be driven by an occupant of the dwelling on the property.
2)Without the occupant/driver link required by LPP 2.1, the proposal is classified as a transport depot which is a prohibited use in the General Rural zone. No discretion exists to approve the application.
3)Approval of the application would constitute an adverse and far reaching precedent.
The respondent's argument
The respondent argues that the proposal, by its nature, constitutes a transport depot as defined in TPS 6 and, because a transport depot is a prohibited land use in the General Rural zone, the proposal should not be allowed.
Mr T Price, a qualified and experienced town planner employed by the respondent, provided evidence in support of the respondent's argument.
Mr Price was of the opinion that the proposal under review fully accords with the definition of 'transport depot' as described in TPS 6. Mr Price affirmed that a transport depot was not a permitted use in the General Rural zone.
There is no definition for commercial vehicle parking in TPS 6. Mr Price was therefore of the view that LPP 2.1 needed to be examined to assess whether the proposal, the subject of review, should otherwise be entertained as a use suitable for allowance in the General Rural zone.
Under the policy, there is a provision that requires that drivers of commercial vehicles should live on the property the subject of application. The driver/occupancy requirement of the policy is designed to ensure that commercial vehicle drivers are not detached from and have an investment in the rural community in which they live. This is a central premise of the policy.
Mr Price noted that none of the intended drivers of the commercial vehicles the subject of the application were occupants of the property.
Approval of the application, in this case, where the drivers of the commercial vehicles are not occupants of the land, would constitute a far reaching and undesirable precedent. It could lead to the use of the locality as a de facto industrial area, which would be completely contrary to the objectives of the General Rural zone.
Whilst the policy extends some flexibility in the MKSEA to allow for the possibility of one nonoccupant driver, Mr Price reminded the Tribunal that the driver/occupancy link is still required to be maintained.
Mr Price was of the opinion that there was no certainty in any case that industrialisation of the MKSEA precinct would occur because of environmental constraints.
Mr Price concluded that, because none of the vehicles identified in the application will be driven by an occupant of the property, the proposal must constitute a transport depot, which cannot be approved in the General Rural zone.
The applicant's argument
The applicant argues that the proposal does not constitute a transport depot and otherwise complies with the commercial vehicle parking provisions prescribed by LPP 2.1.
In his statement of issues submitted to the Tribunal, the applicant set out a history of the proposal describing preliminary approaches to officers representing the respondent. These initial approaches led to expectations by the applicant that approval of commercial vehicle parking on the land would be forthcoming.
Following later communication with the respondent's representatives to the effect that the application did not appear to conform with policy requirements, the expectations of the applicant became frustrated.
The applicant ultimately felt that the proposal was not fairly put before the Council of the respondent, because the proposal was described as constituting a transport depot which could not be permitted in the zone.
The applicant pointed out that the definition of 'transport depot' refers to 'buildings used for garaging', the 'transfer of goods' and 'management'. These are all characteristics clearly absent from the proposal under review and therefore the application could not, and should not, be considered as a transport depot.
The proposal is a lesser scale activity than a transport depot and more realistically compares with commercial vehicle parking.
In respect to the definition of a commercial vehicle, the applicant drew attention to the circumstance that one of the vehicles to be parked on the property was a one tonne load capacity 'escort vehicle'. The escort vehicle was integral to the applicant's transport business and should therefore be classed as a commercial vehicle. It would be driven by the resident of the dwelling on the land, thus demonstrating compliance with the acceptable criteria of LPP 2.1 prescribing that the driver of the commercial vehicle must be an occupant of the property.
The applicant drew the Tribunal's attention to cl 4.5 of LPP 2.1 which states that parking applications that fall within Column C of Table 1 (Unacceptable Criteria) will generally be refused. The term 'generally' means that there is still a discretion available to the respondent to allow an application, notwithstanding noncompliance with the relevant policy criteria.
The applicant submitted aerial photo documentation illustrating properties in the locality on which a number of trucks are parked. Reports of recent Council decisions submitted to the Tribunal illustrated the preparedness of the respondent to approve applications for multiple truck parking.
In the circumstances, the applicant contended that there is unlikely to be any undesirable precedent created by allowance of the proposal.
The applicant recorded that he, his family and the transport business have a longstanding commitment in the local government area and the local community. Whilst not residing on the property in question, the applicant is committed to maintaining the amenity of the area.
Analysis
The issue to be examined in this review is whether the proposal conforms with the planning framework (town planning scheme and relevant planning policy), and should therefore be allowed, consistent with the expectation for orderly and proper planning of the area.
The applicant's submission, in respect of certain frustrations dealing with the respondent's representatives and the concern expressed as to the fairness of reporting to the respondent's Council, are acknowledged, but do not materially affect the proper deliberations of the Tribunal in the course of this review.
The respondent's witness, Mr Price, argued that the proposal to park three prime movers and three trailers associated with a building transport business on the Victoria Road property constituted a transport depot as defined by TPS 6. He further argued that the proposal did not comply with the respondent's policy requirements for commercial vehicle parking, because none of the vehicles the subject of the application will be driven by a person occupying a dwelling on the land.
The applicant disputed Mr Price's assessment, arguing that the proposal was not a transport depot because certain characteristics included in the definition were absent in the application before the Tribunal. The proposal should be accepted as commercial vehicle parking because it complied with the respondent's policy and was similar to other truck parking activities approved by the respondent in the immediate locality.
The Tribunal has some difficulty with the planning framework.
The definition of 'transport depot' is all embracing and would seem, on the face of it, to capture this proposal. In this regard, the Tribunal rejects the applicant's argument in respect to the proposal being disqualified because it does not feature some of the characteristics mentioned in the definition. The Tribunal has no doubt that the words or characteristics mentioned in the definition, such as 'building', 'garaging', transfer of goods' or 'managing' are features that may be present, but may also be absent in any proposal for parking of motor vehicles used for carrying goods or persons for hire or reward that otherwise constitutes a transport depot.
The distinction, however, between 'transport depot' and 'commercial vehicle parking' is not at all immediately obvious. TPS 6 unfortunately omits any definition of 'commercial vehicle parking' to assist as to whether an application should be treated as one land use or the other.
In such circumstances, it can be reasonably argued that any proposal for parking motor vehicles used for carrying goods for hire or reward could just as well be construed as commercial vehicle parking as a transport depot.
Clause 5.11.3 of TPS 6 gives a little assistance other than by an implication from the provisions that an approval for commercial vehicle parking is a personal approval that can be revoked in certain circumstances. This contrasts with an approval for a transport depot that would presumably run with the land. The inference that the Tribunal draws is that a transport depot is likely to be a use that is of greater substance, scale and permanence than is intended for commercial vehicle parking.
The respondent relies otherwise on LPP 2.1 to define the nature of commercial vehicle parking and distinguish it from the land use 'transport depot'. The policy continues the theme that an approval for commercial vehicle parking is a personal approval consistent with the provisions of cl 5.11.3 of the Scheme.
The policy, at Table 1, is expressly certain in intention, that 'the commercial vehicle must form an essential part of the occupation of the occupant of a dwelling on the subject lot' and 'the commercial vehicle shall only be driven by a person who is [a] bona fide registered occupant of a dwelling on the subject lot in any area'. Whilst this intention is tempered by a flexibility to allow one vehicle to be parked and used by a nonresident in the MKSEA area, it does not detract from the general presumption that the right to conduct commercial vehicle parking is a permission that is still essentially personal in nature.
Because commercial vehicle parking is of a personal nature, it can reasonably be assumed that it should be an activity small in scale in comparison with a transport depot.
The proposal before this review is for the parking of three prime movers and three trailers. This is the maximum number allowed as listed in Table 1, column B, 3.2B of LPP 2.1. None of these vehicles will be driven by an occupant of the property.
During examination, the applicant indicated that, in fact, he owned and operated five prime movers in his transport business and sometimes contracted others as and when required.
In these circumstances, the Tribunal has to recognise that the proposal is to facilitate part of a substantial transport business. It is at the very upper limit in terms of the scale of commercial vehicle parking, and very difficult to describe as personal in nature when neither the applicant, nor the occupant of the property, will be responsible for driving any of the commercial vehicles the subject of the application.
The applicant has suggested that, because the occupant of the premises will be driving the firm's heavy load escort vehicle, a one tonne utility, the driver/occupant criteria required under the policy will be met.
The Tribunal is unable to accept this argument on two grounds. First, the escort vehicle is not included as part of the present application. Indeed, if it was, it would increase the number of commercial vehicles in the proposal to four, well beyond the numbers of vehicles normally associated with commercial vehicle parking.
Second, it appeared, from examination in the course of the review, that the escort vehicle would probably not qualify as a commercial vehicle because of its limited carrying capacity.
In terms of the broader context of this review, the Tribunal is mindful of the character of the area and the frequent incidence of truck parking occurring on rural properties.
It appears that there are a number of approved incidences of commercial vehicle parking, and also a presence of some commercial vehicle parking that may not be approved by the local government.
It could be argued, on the basis of the presence of unlawful transport activities, that the area is at risk of de facto industrialisation.
The Tribunal is also mindful, however, that the area is zoned General Rural and that the objectives of the zone are to provide for rural pursuits and to retain the rural character and amenity of the locality. This character and amenity may well be at a crossroad, given what has been described of the area to the Tribunal.
In the circumstances, a decision to allow commercial vehicle parking straying beyond the limits of the acceptable policy provisions for the area, without proper reason, could be seen as contributing to and compounding the erosion of the rural character and amenity of the locality. The Tribunal would view this as contrary to the interests of orderly and proper planning.
In summation, the Tribunal is not satisfied that the proposal can be reasonably considered to fall within the limitations of activity scale and personal involvement and responsibility expected of an approval for commercial vehicle parking. This is because:
•the proposal is for the maximum number of vehicles (three) able to be contemplated under LPP 2.1, but regardless
•none of the vehicles applied for will be driven by an occupant of the premises as required by LPP 2.1.
In addition, the Tribunal's conclusion is influenced by the fact that:
•the proposal is a component of a larger transport enterprise operated by the applicant;
•the applicant is not a resident on the property in question and therefore cannot be reasonably responsible in a personal sense for the daytoday conduct of commercial vehicle parking activities.
In the event that the proposal cannot be reasonably interpreted and accepted as commercial vehicle parking for the reasons above, it follows, by elimination, that it should logically be determined to be a transport depot.
Ultimately, therefore, the Tribunal accepts the respondent's argument that the proposal does, in fact, constitute a transport depot, which is a use that is not permitted in the General Rural zone.
Conclusion
Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse theٔapplication for parking three commercial vehicles and three trailers at No 128 (Lot 14) Victoria Road, Kenwick should be dismissed.
Order
1.The application for review is dismissed.
2.The decision of the respondent made on 19 April 2011 to refuse approval for the parking of three commercial vehicles and three trailers at No 128 (Lot 14) Victoria Road, Kenwick is affirmed.
I certify that this and the preceding [88] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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