Humich and City Of Gosnells
[2008] WASAT 298
•27 NOVEMBER 2008
HUMICH and CITY OF GOSNELLS [2008] WASAT 298
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 298 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:311/2008 | 27 NOVEMBER 2008 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 26/11/08 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Development approval granted subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | RANDAL HUMICH CITY OF GOSNELLS |
Catchwords: | Town planning Development application Pet shop and ancillary products Land use classification Whether proposed use is 'showroom' or 'shop' Whether premises used to display and sell 'goods of a bulky nature' Whether pet food of up to 25 kilograms is a good of a bulky nature |
Legislation: | City of Joondalup Town Planning Scheme No 2 City of Gosnells Town Planning Scheme No 6, Sch 1 Planning and Development Act 2005 (WA), s 252(1) |
Case References: | Joondalup Gate Pty Ltd and City of Joondalup [2008] WASAT 47 |
Orders | 1. The application for review is allowed.,2. The deemed refusal and, subsequently, actual refusal by the respondent of a development application for a change of use to a pet shop selling pets, pet supplies and pet accessories and ancillary goods at Unit 7 and Unit 8, Lot 152 Batman Road, Canning Vale, is set aside and a decision is substituted that development approval is granted, subject to the following conditions:,(1) The use shall be carried out in accordance with the plan attached to these orders.,(2) All signage including painted signs requires separate approval from the City of Gosnells.,(3) A minimum of 56 car parking bays are to be provided for the approved use and maintained to the satisfaction of the City of Gosnells.,(4) Equestrian supplies are not to be displayed or retailed from the premises. |
Summary | Mr Randal Humich sought development approval for a change of use of premises to 'pet shop and ancillary products'. The City of Gosnells refused to grant development approval on the basis that the proposed use involves the sale of goods of a bulky nature and is therefore classified as 'showroom', rather than 'shop', under the local planning scheme.,Following the hearing, the Tribunal delivered an oral decision. The Tribunal determined that the proposed use is not classified as 'showroom', because the goods of a bulky nature that are proposed to be displayed and sold from the premises cannot be characterised as an independent dominant use of the site. Rather, the sale of goods of a bulky nature is incidental or ancillary to the dominant proposed use, namely a pet shop selling pets, pet food and accessories.,The proposed use is properly classified as a 'shop' and is an appropriate land use for the site. The application for review was allowed and conditional development approval was granted.,The Tribunal's reasons, taken from the transcript and edited in minor respects, are as follows. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HUMICH and CITY OF GOSNELLS [2008] WASAT 298 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 27 NOVEMBER 2008 DELIVERED : 27 NOVEMBER 2008 FILE NO/S : DR 311 of 2008 BETWEEN : RANDAL HUMICH
- Applicant
AND
CITY OF GOSNELLS
Respondent
Catchwords:
Town planning - Development application - Pet shop and ancillary products - Land use classification - Whether proposed use is 'showroom' or 'shop' - Whether premises used to display and sell 'goods of a bulky nature' - Whether pet food of up to 25 kilograms is a good of a bulky nature
Legislation:
City of Joondalup Town Planning Scheme No 2
City of Gosnells Town Planning Scheme No 6, Sch 1
Planning and Development Act 2005 (WA), s 252(1)
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Result:
Development approval granted subject to conditions
Category: B
Representation:
Counsel:
Applicant : Mr MC Hotchkin
Respondent : Mr CA Slarke
Solicitors:
Applicant : Hotchkin Hanly
Respondent : McLeods
Case(s) referred to in decision(s):
Joondalup Gate Pty Ltd and City of Joondalup [2008] WASAT 47
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Summary of Tribunal's decision
1 Mr Randal Humich sought development approval for a change of use of premises to 'pet shop and ancillary products'. The City of Gosnells refused to grant development approval on the basis that the proposed use involves the sale of goods of a bulky nature and is therefore classified as 'showroom', rather than 'shop', under the local planning scheme.
2 Following the hearing, the Tribunal delivered an oral decision. The Tribunal determined that the proposed use is not classified as 'showroom', because the goods of a bulky nature that are proposed to be displayed and sold from the premises cannot be characterised as an independent dominant use of the site. Rather, the sale of goods of a bulky nature is incidental or ancillary to the dominant proposed use, namely a pet shop selling pets, pet food and accessories.
3 The proposed use is properly classified as a 'shop' and is an appropriate land use for the site. The application for review was allowed and conditional development approval was granted.
4 The Tribunal's reasons, taken from the transcript and edited in minor respects, are as follows.
Introduction
5 These proceedings involve an application brought by Mr Randal Humich for review of the decision of the City of Gosnells (City) to refuse a development application for a change of use of Unit 7 and Unit 8, Lot 152 Batman Road, Canning Vale (site) to 'pet shop and ancillary products'.
6 The proceedings were originally commenced as an application for review of the deemed refusal of the application. The application was subsequently refused for two reasons. The first is that the City considers that the proposed land use is 'showroom' for the purposes of the City of Gosnells Town Planning Scheme No 6 (TPS 6 or Scheme). Second, the City considers that a showroom is a land use that is not suitable on the site, having regard to the planning framework.
Site and locality
7 The site is located at the ground floor of a recently completed two-storey commercial building at the corner of Batman Road and Warton Road, Canning Vale. The site occupies approximately one-third of the ground floor. The
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- first floor comprises offices. It appears that the site was originally approved for use as an indoor play centre.
8 The site is zoned 'Residential Development' under TPS 6, and is also subject to the Canning Vale Outline Development Plan (ODP). The site is shown on the ODP as part of a mixed use centre. The mixed use centre is part of the Amherst Town Centre (Town Centre), which is developed with a range of uses, including a Woolworths shopping centre, liquor store, restaurant, gymnasium, fast food outlets, medical consulting rooms, real estate offices, bicycle sales and repairs, and specialty shops.
9 It is the evidence of Mr David Maiorana, a town planner, who gave evidence on behalf of Mr Humich, which I accept, that, overall, the Town Centre can be characterised:
as offering a diverse variety of commercial and community facilities within a relatively compact and walkable precinct in keeping with the intended function of the Centre for 'Mixed Uses'.
10 The Town Centre has a total approved floor space of 6,750 square metres, which is about 50% greater than the maximum shopping floor space guide for a neighbourhood centre or local centre in Appendix 1 of State Planning Policy No 4.2 - Metropolitan Centres Policy (SPP 4.2). The shopping centre floor space guide for the next category of centres - namely, district centre - is up to 15,000 square metres. In effect, the Town Centre appears to lie between a neighbourhood centre or local centre and a district centre as contemplated in the hierarchy in SPP 4.2.
Application
11 In response to a request from the City's officers for further information about the proposed change of use, Mr Humich submitted a plan showing the proposed layout of the premises and specifying the types of goods to be displayed and sold from various parts of the site. The plan shows distinct areas for pet supplies and accessories for cats, dogs, birds and fish. It indicates areas for food, leads, accessories, clothing and other items.
12 The plan also includes an area for bedding and kennels in the dog area and an area for fish tanks and a small area for large aquariums in the fish area. In the bird area there is a section for bird cages. In addition, the floor plan shows a relatively small part of the site as containing garden products and another small part of the site as containing pool
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- treatments and pool accessories. This plan was rejected by the Council in its refusal.
Land use classification
13 A threshold issue arises for determination in this review as to the proper classification or characterisation of the proposed use for the purposes of TPS 6; in particular, the question is whether the proposed use is properly classified in whole or in part as 'showroom' for the purposes of TPS 6, as the City contends, or as a 'shop' for the purposes of TPS 6, as Mr Humich contends. These terms are defined in Sch 1 of TPS 6 as follows:
'Shop' means premises used to sell goods by retail, hire goods or provide services of a personal nature (including a hairdresser or beauty therapist), but does not include a showroom or fast food outlet.
'Showroom' means premises used to display, sell by wholesale or retail, or hire, automotive parts and accessories, camping equipment, electrical light fittings, equestrian supplies, floor coverings, furnishings, furniture, household appliances, party supplies, swimming pools, or goods of a bulky nature.
15 However, if the proposed use is not classified as 'showroom', but rather as 'shop', then the City's opposition to the proposed development essentially falls away.
What is the proper land use classification?
16 In support of its case that the proposed use is properly classified as 'showroom', the City relies on the evidence of Mr Timothy Price, who is a town planner and the City's Coordinator Planning Implementation.
17 Mr Price considers that the proposed use is a showroom within the meaning of TPS 6 for four reasons.
18 First, Mr Price considers that '[m]any of the goods offered for sale are of a bulky nature'.
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19 Mr Maiorana reviewed a plan prepared by Mr Humich, which does not entirely accord with the plan submitted in support of the development application but nevertheless substantially accords with that plan, and gave evidence that only approximately 8% of the floor area would accommodate pallets which would contain goods of a bulky nature. I note, however, that the photographs in evidence of a comparable enterprise show that many pallets contain large packets of pet food. As I find later in these reasons, these packets of pet food are not goods of a bulky nature. Mr Maiorana's estimate that 8% of floor space would accommodate goods of a bulky nature is therefore conservative.
20 Mr Maiorana also reviewed an inventory of the range of goods typically stocked by a business known as 'City Farmers' in one of its stores. Mr Humich gave evidence, which was not challenged, that he considers the inventory to be indicative of the types of products that are likely to be displayed and sold from the site.
21 Mr Maiorana considered that only approximately 8% of the range of products for sale would be of a bulky nature. Under cross-examination, Mr Maiorana agreed that the 8% of floor space and the 8% of products in his evidence does not include items such as kennels, birdcages and large aquariums, which would also reasonably be considered to be bulky goods. However, he expressed the opinion that these items would only comprise a minor part of the business operation.
22 Mr Maiorana's opinion is borne out both by a review of the proposed floor plan and by the evidence of Mr Humich that, based on the experience of City Farmers in another location, larger pet supplies that may be considered to be bulky - such as rabbit and guinea pig hutches, birdcages, dog houses and kennels, fish tanks and aquariums - would only constitute a small proportion of sales and of floor space.
23 Mr Maiorana was also cross-examined as to whether some larger items of dog food that would be stocked at the site are goods of a bulky nature. Mr Maiorana gave evidence that such items may be goods of a bulky nature above 20 kilograms. A review of the City Farmers' inventory indicates that the largest packets of stocked pet food are no greater than 20 kilograms. Mr Humich was also asked the same question and expressed the view that items above 25 kilograms would be, or could be, regarded as goods of a bulky nature. Mr Price expressed the view that the cut-off for bulky goods in relation to dog food is five kilograms, but conceded that - not being a dog owner - he was not familiar with the range of pet food commonly available in supermarkets. Mr Humich gave further evidence that the
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- Woolworths store in the Town Centre stocks dog food up to 25 kilograms.
24 I do not consider that pet food up to 20 kilograms or 25 kilograms, available in commercial packaging, involves goods of a bulky nature. Pet food is commonly available, on the evidence, in ordinary supermarkets and is, by its nature - and based on ordinary experience - able to be shifted by a person from a shelf onto a trolley and into a private motor vehicle.
25 The evidence therefore indicates that somewhere between 10% and 15% of the floor space of the proposed development, and somewhere between 10% and 15% of the range of goods, would be goods of a bulky nature. I do not think that 10% to 15% of the goods offered for sale at the site could be regarded as 'many of the goods'.
26 Second, Mr Price considers that the proposed use is properly classified as a showroom for the purposes of TPS 6 because the size of the tenancy proposed to be occupied, being 850 square metres, indicates that the proposal 'is a large-scale operation with the need for extensive display areas characteristic of showroom development'.
27 However, the definition of 'showroom' in TPS 6 does not identify the size of premises as a factor. This can be contrasted with a definition considered by the Tribunal in a decision referred to by Mr Price, which I will consider shortly. Rather, the definition of 'showroom' in TPS 6 focuses on the designation or character of goods displayed and sold from premises.
28 Furthermore, the plan of the proposed use indicates that only a relatively small part of the premises would be used to display items characteristic of showroom development under the definition in TPS 6; in particular, only a small part of the premises would be used to display and sell goods of a bulky nature. The vast majority of the proposed floor space allocation is for goods that are clearly not goods of a bulky nature.
29 The third reason for Mr Price's opinion that the proposed use is a showroom for the purposes of TPS 6 is, or relates to, previous Council decisions. Some of the background documents in relation to those decisions are contained in the evidence. However, the Tribunal does not have a clear understanding of the circumstances of those decisions. Ultimately, each case needs to be assessed on its own merits, the question of classification being, in essence, a question of fact and degree in all the circumstances of a particular case.
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30 The fourth reason for Mr Price's opinion is reliance on a previous decision of the Tribunal in Joondalup Gate Pty Ltd and City of Joondalup [2008] WASAT 47 (Joondalup Gate). In Joondalup Gate, the local government authority refused planning approval for a store on a number of grounds, the most significant of which was that the selling of pet food breached the prohibition on the sale of 'foodstuff' contained within the definition of 'showroom' in the City of Joondalup District Planning Scheme No 2 (DPS 2).
31 The Tribunal decided, having regard to the context in which the prohibition appeared, that the definition was not intended to operate in that scheme so as to prevent a pet supplies distributor, that also sells pet foodstuffs, from engaging in a land use which is otherwise properly characterised as 'showroom' under DPS 2.
32 However, Joondalup Gate is distinguishable from the present case for three important reasons.
33 First, while the preliminary issue in Joondalup Gate was framed in terms of whether the proposed use was a discretionary use within the meaning of the town planning scheme, 'that is to say, use as a "showroom"' (see [7]), in effect, the issue identified at [8] of the reasons was whether 'the proposed use is excluded from the definition of "showroom" in DPS 2 by reason of it including the sale of items which are alleged by the respondent City to be "prohibited" categories of sale'. This is not a question that arises in this case.
34 Second, the definition of 'showroom' under DPS 2 was different to the definition of 'showroom' in TPS 6. The definition in that case was as follows:
Premises providing large floor space used for the displaying of goods and which may involve the sale by wholesale or retail or hire of such goods being goods generally of a bulky nature and without limiting the generality of the foregoing including automotive parts and accessories, camping equipment, electrical light fittings, equestrian supplies, floor coverings, furnishings, furniture, household appliances, party supplies and second-hand goods. The term does not include the sale of foodstuff, liquor or beverages, items of personal adornment, magazines, books, newspapers, paper products or mechanical and pharmaceutical products. (Emphasis in bold added.)
35 Third, and perhaps most significantly, the preliminary question in Joondalup Gate was decided on the basis of agreed facts which included 'that the use proposed to be made of the land is for "bulky goods" for the
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- purposes of DPS 2' (see [11(14)]). It is not surprising that the applicant in Joondalup Gate argued its case on the basis of this agreed fact because, had the use been classified as a 'shop' in the particular planning framework, the proposal would have been prohibited.
36 In contrast, Mr Maiorana considered that the proposed land use does not fall within the meaning of the term 'showroom', and does fall within the meaning of the term 'shop', under TPS 6. He expressed this opinion on the basis that the predominant type of goods proposed for sale does not fall within the types of goods referred to in the definition of 'showroom' and, in particular, does not involve goods of a bulky nature.
37 Mr Craig Slarke, counsel for the City, submitted that the Tribunal should find that the proposed use is properly classified as 'showroom', or, at the very least, that a part of the proposed use is properly classified as 'showroom'. He submitted that, insofar as goods of a bulky nature are proposed to be displayed and sold from the site, that aspect of the proposal cannot be considered to be merely incidental.
38 Ultimately, the classification of a use for the purposes of land use planning involves questions of fact and degree. A development incorporating, it appears, 10% to 15% of floor space and 10% to 15% of goods of a bulky nature does not involve, in the circumstances of this case, a showroom. The goods of a bulky nature proposed to be displayed and sold from the site cannot, in my opinion, be characterised as an independent dominant use of the site, much less as the dominant use of the site.
39 The goods of a bulky nature would occupy only a small fraction of the floor area and constitute only a small fraction of the goods stocked at the site. There is nothing in their proposed location within the premises which suggests that the goods of a bulky nature are an independent and dominant use of the site. Furthermore, many of the goods of a bulky nature, such as dog kennels and fish tanks, are pet accessories. In my opinion, based on the evidence, the goods of a bulky nature proposed to be sold from the site are properly considered incidental or ancillary to the dominant proposed use, namely a pet shop selling pets, pet food and pet accessories.
40 Clearly, the proposed use, not being 'showroom', falls within the definition of 'shop', because it involves the sale of goods by retail and is not a showroom. As I noted at the outset of these reasons, the City's remaining concerns
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- about the proposal largely fall away as a result of this finding.
Merits
41 On the merits of the application, I consider that the proposal is consistent with the planning framework. The objective of the subject Residential zone is:
- To provide for the progressive and planned development of future urban areas for residential purposes and for commercial and other uses normally associated with residential development generally in accordance with an Outline Development Plan adopted pursuant to clause 7.4.
42 I accept Mr Maiorana's evidence that the proposal is consistent with this objective because pets, pet food and accessories are a commercial use normally associated with residential land development, in that residents in the surrounding area are likely to have pets.
43 The ODP envisages the area as a mixed use centre that involves:
[a] sense of place through the provision of opportunities for a mix of uses to be developed in a form that is integrated, human-scaled and pedestrian-based and produces active, attractive and safe environments.
44 The ODP considers that the mixed use centre:
[m]ay contain facilities for local businesses, leisure and community uses, the sale of convenience goods and services and housing and are located in most cases at the junction of distributor roads to provide a community focus and facilitate the development of 'walkable' neighbourhoods.
45 I accept Mr Maiorana's evidence that the construction of the existing building satisfies the main principle referred to in the ODP, in that it is a human-scaled and pedestrian-based centre. The proposed use also satisfies the second part of the intention for the establishment of vibrant centres which, among other facilities and services, provide for the sale of convenience goods for the benefit of the local community.
46 The goods proposed to be sold at the site are predominantly goods of a convenience nature which would benefit residents in the surrounding areas who own pets.
47 It is true that customers are unlikely to walk to the centre if their intention is to purchase a 20 kilogram bag of dog food or a kennel. However, as Mr Price accepted, people doing a weekly shopping trip to the local Woolworths are
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- also unlikely to walk. The proposed use, in my opinion, is appropriately within the mix of uses envisaged by the ODP for what is, as I observed earlier, a commercial precinct falling somewhere between a local centre and neighbourhood centre and a district centre within the hierarchy of SPP 4.2.
48 Finally, SPP 4.2 forms an element of the planning framework. Clause 4.1.9 of SPP 4.2 states that:
Bulky goods retailing (including activities requiring large display areas associated with household goods, home improvement stores, automotive products, specialised goods and the like) should be located within regional and district centres or in designated mixed business areas.
49 For reasons set out earlier, I do not consider that the proposed use could be properly characterised as 'bulky goods retailing'. As I found earlier, the aspect of the proposed use that includes the sale of bulky goods is minor and incidental, and certainly not an independent use of the site.
Conditions
50 It follows that the application for review should be allowed and that development approval should be granted under TPS 6 for the proposed use of the site as a pet shop and ancillary retailing of the types of goods shown on the plan put forward by Mr Humich.
51 The City contends that if approval is granted to the proposed use, then conditions should be imposed to restrict the range of goods available from the site. In particular, Mr Slarke suggested that either bulky goods should be excluded by condition, or a specific set of goods, including, in the case of dog food, a maximum weight, should be specified in the conditions.
52 I do not consider that such a condition is appropriate other than in one respect. The reason that such a condition is not appropriate in the circumstances is that, as I have found, the proposed use is properly classified as a shop and is not properly classified, even in part, as a showroom. That being the case, if the development is approved subject to a condition requiring that it be carried out in accordance with the plan, it will operate as a shop and not as a showroom.
53 The one aspect where I consider that a condition ought to be imposed is in relation to equestrian items. As noted earlier, equestrian supplies are expressly excluded from the definition of 'showroom'. The plan of the proposal does
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- not appear to show any location for equestrian supplies, although the list of the types of goods that are, or have been, stocked at the premises referred to by Mr Humich included some items of an equestrian nature. Mr Price gave evidence that there are areas not distant from the site in which people have horses. It is, I think, appropriate to impose a specific condition in those circumstances, for perhaps more abundant caution, excluding equestrian supplies from the site.
Conclusion
54 For these reasons, the application for review should be allowed and development approval should be granted, subject to conditions.
Orders
55 The Tribunal's orders are as follow:
1. The application for review is allowed.
2. The deemed refusal and, subsequently, actual refusal by the respondent of a development application for a change of use to a pet shop selling pets, pet supplies and pet accessories and ancillary goods at Unit 7 and Unit 8, Lot 152 Batman Road, Canning Vale, is set aside and a decision is substituted that development approval is granted, subject to the following conditions:
(1) The use shall be carried out in accordance with the plan attached to these orders.
(2) All signage including painted signs requires separate approval from the City of Gosnells.
(3) A minimum of 56 car parking bays are to be provided for the approved use and maintained to the satisfaction of the City of Gosnells.
(4) Equestrian supplies are not to be displayed or retailed from the premises.
- I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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