HUNT AND ACT PLANNING & LAND AUTHORITY
[2006] ACTAAT 32
•15 November 2006
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:HUNT AND ACT PLANNING & LAND AUTHORITY [2006] ACTAAT 32 (15 NOVEMBER 2006)
AT06/53
Catchwords: Land and planning – decision taken to have been made refusing approval to a home business – motor vehicle repair business – excessive scale of business – parking issues.
Administrative Appeals Tribunal Act 1989, s 43B
Land (Planning and Environment) Act 1991, ss 222, 225, 230
Road Transport (Safety and Traffic Management) Regulation 2000, s 6
Jensen and Minister for Planning [2002] ACTAAT 29 (9 July 2002)
Welbourne and Planning and Land Management & Anor [1997] ACTAAT 183 (7 May 1997)
Tribunal:Mr M H Peedom, President
Dr E McKenzie, Senior Member
Mr J Ashe, Member
Date:15 November 2006
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/53
LAND AND PLANNING DIVISION )
RE: MICHAEL CARLYLE
HUNT
ApplicantAND: ACT PLANNING AND
LAND AUTHORITY
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Dr E McKenzie, Senior Member
Mr J Ashe, Member
Date : 15 November 2006
Decision : The decision under review is affirmed.
…………………………
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/53
LAND AND PLANNING DIVISION )
RE: MICHAEL CARLYLE
HUNT
ApplicantAND: ACT PLANNING AND
LAND AUTHORITY
Respondent
REASONS FOR DECISION
15 November 2006 Mr M H Peedom, President
Dr E McKenzie, Senior Member
Mr J Ashe, Member
The decision under review
This is an application for the review of a decision deemed to have been made by the respondent on 9 February 2006 pursuant to section 230(2) of the Land (Planning and Environment) Act 1991 (“the Land Act”) refusing approval to a development application. The decision was deemed to have been made on that date as the time prescribed under section 230(2) of the Land Act for making the decision had then expired.
Background
2. On 10 December 2003 the applicant lodged a development application which sought approval to the conduct of a motor vehicle repair home business at his residence at Block 21 Section 33 Division of Monash (“the subject land”). The business was at that time apparently being conducted without approval. The development application was refused approval by the respondent on 13 April 2004. The respondent gave as the reasons for the decision the volume of cars generated by the business that were parked on the subject land, the verge adjoining it, within the street and at a local public car park; the effect of the volume of traffic on the streetscape of the area; noise and pollution caused by the business; and its adverse effect on the amenity of neighbouring properties. The decision also noted that the area of the premises on the subject land used in the home business significantly exceeded the acceptable standard of 40m2 specified in the Territory Plan.
3. The applicant applied to the Tribunal for the review of the decision of 13 April 2004. On 2 August 2004 the Tribunal made an order in accordance with the terms of a decision agreed by the parties pursuant to section 43B of the Administrative Appeals Tribunal Act 1989. The decision set aside the decision under review and remitted the matter to the respondent for reconsideration in accordance with directions, inter alia, that the gross floor area of the home business not exceed 49.8m2; that the area utilised by the home business be clearly defined and partitioned, the detail of which was to be approved by the respondent; that approval of the home business not to take effect until the respondent had approved a noise management plan and a waste management plan to be submitted by the applicant to the respondent; that not more than six client vehicles were to be on the subject land at any time unless otherwise agreed by the respondent; that all parking associated with the business was to be located on the subject land; and that details of proposed car parking arrangements were to be submitted to the respondent for approval.
4. On 7 September 2004 the respondent made a decision which substantially reflected the Tribunal’s directions and specified 6 September 2005 as the date of expiry of the approval. The decision required the applicant to lodge architectural drawings showing the area not exceeding 49.8m2 in which the business was conducted and the partitioning of the area and a maximum of six dedicated client vehicle parking spaces on-site. The decision provided that the approval would not become effective until the noise and waste management plans had been submitted by the applicant and approved by the respondent.
5. In accordance with the respondent’s decision the applicant submitted a noise management plan and a waste management plan for approval by the respondent. The respondent, for reasons which were not able to be explained to the Tribunal, did not approve the plans. For reasons which were also unable to be explained to the Tribunal, the respondent was unable to positively identify any plan that specified the detail required by the terms of the Tribunal’s decision as having been submitted to it by the applicant for approval and was unable to identify any such plan approved by it.
The development application
6. The development application under consideration in this appeal was lodged by the applicant with the respondent on 22 December 2005. It sought approval to the conduct of a home business described as “as before - auto mechanical – home business on the subject land”.
7. On a form of home business development application check list made available to him by the respondent, the applicant indicated that he sought approval to the business for a period of 5 years and that he had previously carried on the business on the subject land. He said that he proposed that the business operate between the hours of 8.00am to 5.00pm and that a resident of the subject land would be engaged in the conduct of the business as manager and that two non-residents would be engaged, one as a tradesperson and the other as an apprentice.
8. The check list further stated that the maximum daily number of visitors generated by the business was 8-10 persons but no more than 6 at any one time; that he would use a utility vehicle in connection with the business; that on-site parking would be provided for visitors; that vehicles would be delivered to the subject land on 2-4 occasions each day; that a compressor, rattle guns, oil and solvents would be used in connection with the business; that no area of the house on the subject land would be used; and that 49.8m2 of garage/store space would be used in connection with the business.
9. The applicant attached a plan to the check list in response to one of its requirements that a clearly dimensioned floor and site plan of the premises be provided indicating all areas of the property where the business was to be carried out; the location, number and dimensions of on-site parking whether for staff, visitors, residents and commercial vehicles; and all of the areas to be used for both residential and business purposes.
10. The check list also stated that the respondent held on its files the details of a consultation report giving details of discussions about the development application with all neighbours and adjacent property owners or their representatives.
The evidence
11. Evidence was given on behalf of the respondent at the hearing of the appeal of inspections undertaken by its inspectors of the subject land on 30 separate occasions between 3 May 2004 and 20 October 2006. Reliance was placed upon the inspectors’ reports and photographs taken by them in support of its contentions that the business being conducted by the applicant was of a scale that adversely affected the residential amenity of the neighbourhood.
12. The plan submitted by the applicant to the respondent for approval with the development application, which was refused approval, showed a driveway leading from the street to a double garage which was designated on the plan as a workshop. An area immediately behind a roller door on the western side of the garage is shown as partitioned off from the workshop so as to be retained for use as private parking of the residents. Measurements endorsed on the plan show the area of the workshop (that is, the garage but not including the area partitioned off for use as private car parking) as about 49.5m2. The area identified on the plan as designated for private car parking use appears to be about 19.27m2.
13. An area immediately behind the workshop was shown on the plan as a private carport-parking area. The respondent’s officers calculated that area to be 61.06m2. A courtyard surrounding the front entrance of the residence was calculated to be 22.38m2. An area shown as the location of storage of new oil was calculated to be 17.1m2 and an area designed for use as a waste oil/rubbish storage area was calculated to be 15m2 approximately.
14. At a site inspection undertaken by the Tribunal during the course of the hearing, it appeared that the partitioning shown on the plan as located within the garage so as to reserve an area for private parking was not in existence. Signs within the double garage, tools, car jacks, batteries and other equipment showed that all the garage was being used for the purpose of the business being conducted on the subject land.
15. The area designated on the plan for private carport parking was enclosed by walls on each side and a roof. It contained an engine analyser, brake lathe, tools, compartments with labels identifying parts ordinarily used for motor vehicles, work benches, signs giving instructions regarding the use and storage of tools and the use of safety equipment, a motor vehicle engine and other equipment used in the servicing of motor vehicles.
16. The area designated “new oil” was found to be enclosed on all sides and covered by a roof. It contained three oil storage tanks, oil containers and facilities for washing and cleaning.
17. The waste oil collection area was located between a side wall of the residence and a boundary fence. It was otherwise unenclosed. It contained waste oil containers and an underground oil overflow/storage pit.
18. The area designated as a courtyard showed that the area had been enclosed by a roof and ventilation holes in the external brick walls had been covered by clear perspex. The area contained a desk, chairs and signs with advice regarding acceptable methods of payment. It was fitted with a security camera.
19. The Tribunal also observed a storage room located between the double garage and the western side boundary which had been enclosed and roofed. It contained a compressor and tools. The area of the storage room appears from the plan to be approximately 6.2m2.
20. The driveway from the street has been widened on the western side to extend to the side boundary. It has been extended on the eastern side to a width sufficient to park a standard sized motor vehicle. It has been extended to continue across the subject land immediately in front of the residence and then along the eastern side of the block to the block boundary. It connects to the driveway of the adjoining residence.
21. The width of the driveway on the eastern side is narrower than 3 metres, the width of a standard driveway and appears to be narrower than the width of a standard sized vehicle. It is apparent that most vehicles proceeding across the front of the house to connect to the street on the eastern side would be required to proceed, at least partially, on the driveway of the adjoining neighbour and to enter the street over the adjoining neighbour’s verge crossing.
22. The nature strip in front of the subject land had been laid with gravel. The continuity of trees on the nature strip of the street has been interrupted by the absence of a street tree outside the subject land.
23. Evidence given at the hearing showed that, at times, vehicles owned by the applicant or by clients or employees of his business were parked on the nature strip or in a nearby public car parking area located in Charlesworth Street, Monash, and that an oil waste removal vehicle parked on the nature strip while it drained oil from a sump in the driveway which connected to the waste oil collection area. The applicant explained that this was done to avoid the risk of damage to his driveway.
Planning policies and requirements
24. The use of land for a home business is a development requiring approval under Part 6 of the Land Act (see section 222 definition of “development” and section 225 Land Act).
25. The term “home business” is defined in Part D of the Territory Plan as:
Home business means the use of residential land for carrying on a profession, trade, occupation or calling on the land, but which is not a home occupation.
26. A number of conditions are necessary to be satisfied for a particular kind of activity to be a home occupation. One of them is that a maximum of two persons, and only bona fide residents, are employed on the land at any one time. The applicant in this case gave evidence that, in addition to himself, he employed two other persons, neither of whom resided on the subject land, in his business. The development application sought approval to the continuation of this arrangement. These employment arrangements result in the business falling outside one of the requirements for the activities involved to be categorised as a home occupation.
27. Apart from traditional residential use, land within areas designated for residential use are able to be used, inter alia, for a home business (see Controls, Part B1: Residential Land Use Policies of the Territory Plan) (“the Policies”). Objectives of the Policies include providing opportunities for home-based employment consistent with residential amenity (see Objective 1(i)).
28. Relevant controls within the Policies include:
b)the operation of the Home business does not cause unreasonable annoyance, offence, nuisance or danger to any tenant or occupant of adjoining land;
………
d)provision is made for the parking of all customer/client vehicles on existing driveways within the block or in a suitably screened location on the land;
29. Performance controls relating to the conduct of a home business specify as performance criteria:
To protect the amenity of the area by:
·restricting the agglomeration of non-residential activities; and
·ensuring that the scale of Home businesses is compatible with the residential character of the locality.
30. They specify as an acceptable standard a maximum gross floor area of the business (including storage) of 40m2.
Reasons for decision
31. It is clear from evidence given at the hearing and the Tribunal’s inspection of the subject land that all of the areas referred to in paragraphs 12, 13 and 19 above are used by the applicant for the purpose of his business. He confirmed at the hearing that the intention of his development application was to obtain approval to all of those areas for use in the business and that it not be confined to that area within the double garage designated as a workshop containing an area that equates to the area approved by the decision of the respondent dated 7 September 2004.
32. The total of the areas in use for the business is approximately 190.51m2, thereby exceeding the area of 40m2 specified as an acceptable standard by 150.51m2. By itself, the extent to which the area used for the business exceeds the area ordinarily regarded as the permitted maximum area, is a strong indication that the business is being conducted on a scale far in excess of the limit considered by the Territory Plan to be necessary to meet the objective of protecting residential amenity.
33. The use of the driveway area, as shown by photographs in evidence, for the undertaking of vehicle inspection and/or servicing in addition to the workshop; the provision of significant areas of additional driveway and car parking surfaces on the subject land; the provision of car parking and driveway surfaces so as to facilitate the use of the driveway of the adjoining residence and the verge crossing connected to it; and the use of the nature strip adjoining the subject land and a public car parking area for the parking of vehicles associated with the business are further indicators of an excessive scale of the business in a residential area. We note also that the use of the nature strip and the public car parking area involves a breach of clause (d) of the Policies controls and the use of the nature strip involves a contravention of section 197 of the Australian Road Rules which are incorporated by section 6 of the Road Transport (Safety and Traffic Management) Regulation 2000.
34. In his submissions to the Tribunal, the applicant relied upon the decision of the Tribunal in Jensen and Minister for Planning [2002] ACTAAT 29 (9 July 2002). In that case the Tribunal approved the conduct of a home business involving the hiring and rental of motor vehicles and trailers and video and DVD players. He highlighted conclusions arrived at by the Tribunal in its reasons for decision that the gross floor area of the business did not include the land on which the vehicles and trailers were parked otherwise than in structures upon the land because the maximum gross floor area restriction referred to in the acceptable standards of the policies was confined to the interior of built premises and not to the land on which they were constructed. The Tribunal also considered that the vehicles and trailers were not “materials” for the purpose of clause (g) of the performance controls which prevents approval being given to a home business where the use of the land involved would result in the storage on the land of materials obtained for or generated by the home business otherwise than within the confines of approved structures.
35. The Tribunal’s decision in Jensen does not assist the applicant’s position. No reliance is placed by the Tribunal for its decision in this case upon clause (g) of the performance controls and its calculation of the gross floor area of the business does not include areas other than those within structures on the land in which the business activities are being and are proposed by the applicant to continue to be conducted. In particular, we have not included the driveway area which is used for the parking of client vehicles in the calculation.
36. The applicant also relied upon the decision of the Tribunal in Welbourne and Planning and Land Management & Anor [1997] ACTAAT 183 (7 May 1997). In that case, the Tribunal approved the conduct of a home business in an area that was two and one half times the permissible area of 40m2. He also relied upon a reference in the Tribunal’s reasons for decision rejecting a submission that property values in the neighbourhood would fall as a consequence of approval of the home business.
37. In response to the applicant’s reliance upon the decision in Welbourne it is sufficient to note that the gross floor area of the home business in this case exceeds, by more than four times, the area specified in the relevant performance measure as the maximum permissible gross floor area, even allowing for some reduction in the area of the courtyard to take account of part of its apparent available dual use as an entrance for the residents and their visitors to the residential part of the premises and that the Tribunal’s decision places no reliance upon any impact of the proposed development on property values in the neighbourhood.
38. The applicant produced in evidence a number of references testifying to his professional competence and the efficiency of his business. We also note that our inspection of the subject land suggests that the applicant is concerned to ensure that that part of his premises in which the business activities are conducted is maintained in a clean and tidy condition. We also do not place reliance upon the complaints recorded by the respondent’s officers as having been made in relation to the business. The complaints were made by persons who declined to be identified and who did not give evidence at the hearing of the appeal. We are not, in that event, in a position to make any finding as to whether those complaints were reasonably based.
39. The applicant sought to explain the extent to which the area of his premises on which the business was conducted exceeded that specified in paragraph (a) of the directions contained in the Tribunal’s decision dated 2 August 2004 as being the result of his misunderstanding of the correct method of calculating the gross floor area of business component of his premises. Such misunderstanding as may have existed would have readily been cured by the respondent’s insistence that the decision made by it in response to the Tribunal’s directions be complied with by the applicant. The failure of the respondent to ensure that plans in accordance with clause 2.2 of the decision made on 7 September 2004 were submitted for approval as well as its failure to undertake an inspection to ensure that the requirements of plans which had been approved had been met contributed, in our view, to the conduct of a business operation on a scale far in excess of what was approved and is appropriate in a residential area.
40. We note, however, that the applicant offered no proposal to reduce the scale of his business nor were any conditions of an approval identified that might enable it to be practically enforced.
41. In the circumstances, we consider that the preferable decision for the Tribunal to make is to affirm the decision taken to have been made by the respondent to refuse approval of the development application.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT06/53
APPLICANT: MICHAEL CARLYLE HUNT
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT:
RESPONDENT: MR D MOSSOP
PARTY JOINED:
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED:
OTHER:APPLICANT: SELF
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DR E MCKENZIE, SENIOR MEMBER
MR J ASHE, MEMBER
DATE/S OF HEARING: 9 & 10 NOVEMBER 2006 PLACE: CANBERRA
DATE OF DECISION: 15 NOVEMBER 2006 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENTS:
0
0
0