IPILATESPERTH PTY LTD and CITY OF JOONDALUP - [2020] WASAT 52

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   IPILATESPERTH PTY LTD and CITY OF JOONDALUP [2020] WASAT 52
MEMBER:   DR S WILLEY, SENIOR MEMBER
HEARD:   26 AND 27 NOVEMBER 2019
DELIVERED          :   14 MAY 2020
FILE NO/S:   DR 240 of 2018
BETWEEN:   IPILATESPERTH PTY LTD
Applicant
AND
CITY OF JOONDALUP
Respondent

Catchwords:

Town planning - Enforcement proceedings - Written direction - Principles of interpretation of planning schemes - Land use classification - Classification of multiple land uses - Medical centre - Physiotherapy practice - Whether group pilates classes constitute medical centre use - Land use classification is a question of fact and degree - Group pilates classes not identified in application for approval - Principles that inform the discretion as to written direction - Application for review dismissed

Legislation:

City of Joondalup District Planning Scheme No. 2
City of Joondalup Local Planning Scheme No. 3, cl 3
Environmental Protection Act 1986 (WA)
Interpretation Act 1984 (WA), s 5, s 18
Planning and Development Act 2005 (WA), s 27, s 27(a), s 68(1)(a), s 214(2), s 255, s 255(2)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)
Town Planning and Development Act 1928 (WA), s 5AA

Result:

Application for review dismissed

Summary of Tribunal's decision:

The applicant (IpilatesPerth Pty Ltd) sought review of a written direction issued by the City of Joondalup pursuant to s 214(2) of the Planning and Development Act 2005 (WA) (PD Act). The written direction required the applicant to cease using part of its premises for a pilates studio.

The applicant sought review of the written direction on the basis that the use of the premises was authorised by an approval issued by the Metro North-West Joint Development Assessment Panel (JDAP) on 6 July 2015 (which was subsequently amended by a further approval on 24 October 2016). The JDAP approvals allowed the applicant's premises to be used as a 'medical centre'.

One part of the premises was being used for physiotherapy practice with consultation rooms. It was not in contest that this aspect of the applicant's business was a 'medical centre'. The contest in this proceeding was whether the applicant's group pilates classes were part of that 'medical centre' use.

The Tribunal found that group pilates classes were not a 'medical centre' use as the Tribunal did not consider that group pilates classes involved the 'investigation' or 'treatment' of 'injuries' or 'ailments'. While some clients did engage with the physiotherapy services offered by the applicant, it was not necessary to be a physiotherapy patient in order to attend the group pilates classes. The Tribunal also considered that, as a matter of fact and degree, 70 pilates classes per week could not be said to be a 'medical centre' use (as part of a physiotherapy practice) but was instead a separate and independent use.

The Tribunal considered the range of factors that inform the exercise of discretion under the PD Act and considered that the correct and preferable decision was to affirm the written direction.

Category: B

Representation:

Counsel:

Applicant	:	JA Robertson
Respondent	:	P Gillet

Solicitors:

Applicant	:	Williams & Hughes
Respondent	:	McLeods

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

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; (2012) 186 LGERA 390
Australian Unity Property Limited v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
Bright Image Dental Pty Ltd v City of Gosnells [2017] WASC 229; (2017) 225 LGERA 345
Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134
Caravan Parks Association of Queensland Ltd v Rockingham Regional Council [2018] QPELR 221; [2018] QPEC 52
Castle and City of Rockingham [2018] WASAT 98
Dao Ji Association and City of Gosnells [2020] WASAT 10
Drake and City of South Perth [2005] WASAT 271
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
G&G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel [2018] WASAT 9; (2018) 94 SR (WA) 36
Galati and City of Rockingham [2007] WASAT 198
Garnham and City of Mandurah [2010] WASAT 106; (2010) 74 SR (WA) 1
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431
Ho v Greater Dandenong City Council [2012] VSC 165; (2012) 188 LGERA 424
Hoe v Manningham City Council [2011] VSC 543; (2011) 183 LGERA 441
Humich and City of Gosnells [2008] WASAT 298
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211; (1983) 51 LGRA 114
Moore and City of Wanneroo [2017] WASAT 145
Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301
Northcote Food Wholesalers Pty Ltd v Northcote City Council (1994) 84 LGERA 54
Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368
Pacific Seven Pty Ltd v Knox City Council (1993) 11 AATR 325
Pearce and City of Wanneroo [2010] WASAT 77; (2010) 73 SR (WA) 1
Qin Chen v City of Stirling [2014] WASC 183; (2014) 203 LGERA 244
Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132
Sanders v City of South Perth [2019] WASC 226
Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81; (2010) 174 LGERA
van der Feltz v City of Stirling [2009] WASC 142; (2009) 137 LGERA 236
Yujnovich and Town of Port Hedland [2016] WASAT 19

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application for review of a written direction that was issued by the City of Joondalup (City or respondent) on IpilatesPerth Pty Ltd (the applicant) in relation to the use of Tenancy 2 and Tenancy 3 at Lot 1 (HN 46) Angove Drive, Hillarys (Premises).
The City's written direction (Direction) was given to the applicant on 13 September 2018 pursuant to s 214(2) of the Planning and Development Act 2005 (WA) (PD Act).
On the same day, the City also issued written directions on Scott Joseph Wescombe and Joel Ronald Wescombe in relation to the use of the Premises. However, these proceedings do not relate to those written directions.
The Direction set out that the applicant was using the Premises as a pilates studio which is an unauthorised use pursuant to the (then) City of Joondalup District Planning Scheme No. 2 (DPS 2) in that no development approval for that use had been issued by the City. The Direction requires the use of the Premises as a pilates studio to immediately cease and not recommence.
Pursuant to a development approval issued by the Metro North-West Joint Development Assessment Panel (JDAP) on 6 July 2015, and subsequently amended by a further approval on 24 October 2016, the Premises may be used for the purpose of a 'medical centre' (the JDAP Approval).
In the original approval granted by the JDAP on 6 July 2015 the Premises were authorised to be used for 'retail' and 'office' purposes. The amendments to that approval granted on 24 October 2016 changed the use of the Premises to 'medical centre'.
In support of the application to amend the development approval, it was outlined that the Premises would be used as a physiotherapist with a maximum of two practitioners. Under DPS 2, a two practitioner medical centre required the provision of 10 car parking bays (five bays per practitioner). The application materials provided no indication that the physiotherapist practice would incorporate or include a 16 reformer bed pilates studio for group classes.
The applicant does not accept that it is using the Premises as a pilates studio. Rather it says that the entire Premises is being used as a 'medical centre' consistent with the JDAP Approval.
The review arises under s 255 of the PD Act. Having regard to s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), I am to determine whether the 'correct and preferable' decision is to confirm the Direction. The review is de novo: s 27(1) of the SAT Act.
This review is not a land use classification exercise of a proposed land use. Rather, the question for me is whether the applicant's use of the Premises fall within terms of the JDAP Approval which authorises the Premises to be used for the purposes of a 'medical centre'.
If the applicant's activities fall within the terms of the JDAP Approval, it follows that the review must be allowed. If I am not satisfied that the Premises is operating in a manner consistent with the JDAP Approval and that the activities are therefore 'unauthorised development', I must then decide whether the correct and preferable decision is to confirm the Direction.
Having considered the parties' respective submissions and the evidence and having observed the Premises and the immediate locality on a site view with the parties, I find that the correct and preferable decision is to affirm the Direction. My reasons follow.

Background

The following background is drawn largely from the parties' submissions and is not contested.
The Premises, approved as part of the JDAP Approval, forms part of a three storey mixed use development on Angove Drive, Hillarys (Approved Development). At the ground floor there is a café at the corner of Whitfords Avenue and Angove Street. The Premises adjoins the café and front Angove Street together with some residential units. The second and third storeys of the Approved Development comprise residential apartments.
The Approved Development sits at the periphery of a relatively low density residential area that is zoned 'Urban Development' under the City of Joondalup Local Planning Scheme No. 3 (LPS 3). West of the Approved Development is Whitfords Avenue. Further west is the Whitford's beach environs. Residential dwellings face the Approved Development on Angove Street and Mallorca Avenue. The Approved Development also abuts two residential lots on Curacao Lane and Mallorca Avenue.
DPS 2, which had effect at the time of the JDAP Approval and at the time the City issued the Direction, was revoked with the commencement of LPS 3 on 2 October 2018: cl 3 of LPS 3.
Under DPS 2 a 'medical centre' was defined to mean:
… premises other than a hospital, used by one or more health consultant(s) for the investigation or treatment of human injuries or ailments and for general outpatient care (including preventative care, diagnosis, medical and surgical treatment, and counselling).
The definition of 'medical centre' was amended in LPS 3. However, it is the definition of 'medical centre' at the time of the JDAP Approval which governs the activities that may be lawfully undertaken on the Premises.
As has been stated, the Premises comprises two separate tenancies (Tenancy 2 and Tenancy 3) but which are used conjointly. Entry to the Premises is via the door to Tenancy 2. The entry door opens to a reception area and there are three consulting rooms behind the reception.
It is not in contest that the Premises provides a number of services including physiotherapy, therapeutic massage, exercise physiology and reformer pilates classes. The physiotherapy and therapeutic massage services are provided in the consulting rooms located within Tenancy 2.
The respondent does not contest that the activities that occur within Tenancy 2 are the activities of a 'medical centre'. That concession is properly made. The consulting rooms are used by health professionals for one on one consultations for physiotherapy and massage. Tenancy 2 is operating as a medical centre.
The contest in these proceedings is around the activities in Tenancy 3. Within Tenancy 3 there are 16 reformer pilates benches for group classes. Reformer pilates classes run for between 30 and 45 minutes. The classes are available from 6.00 am to 8.45 pm Monday to Thursday, 6.00 am to 6.45 pm on Fridays, 6.00 am to 12.45 pm on Saturdays and 7.00 am to 11.45 am on Sundays. A total of 70 reformer pilates classes are offered at the Premises each week. The average number of participants in a class is 10 to 11. The applicant has approximately 400 clients who attend the Premises.
It is the reformer pilates classes that the City says fall outside the activities of a 'medical centre' and therefore constitute unauthorised development.
The activities that are being undertaken at the Premises came to the City's attention via concerned neighbours and residents. On 13 February 2018 a petition was presented to the City which outlined concerns relating to 'increased noise, traffic congestion, damage to local verges and reticulation, and dangerous road practices due to compromised visibility from often illegally parked vehicles' arising from (it was asserted) the activities at the Premises.
Ultimately, my task is to ascertain whether the activities within the Premises are consistent with those approved by the JDAP Approval. If the applicant is acting within the terms of the JDAP Approval, the traffic congestion, parking and amenity impacts that may be said to arise from the use of the Premises are irrelevant (at least for the purposes of these proceedings) as the applicant's activities are authorised.
However, if I find that the activities are unauthorised, then it is appropriate that I consider whether to affirm the Direction noting that, even then, it is a discretionary decision.

Evidence

I heard from four witnesses. For the applicant, I heard from Mr Scott Wescombe who is a director and secretary of the applicant and is a qualified and experienced physiotherapist. The applicant also called Mr Neil Teo who is a town planner at the firm Dynamic Planning and Developments.
The City called two witnesses. The respondent called Ms Linda Tribe who is a development compliance officer at the City. The respondent also called Mr Chris Leigh who is the Manager of Planning Services at the City.

My impressions of the evidence

Mr Wescombe

Mr Wescombe gave evidence about the applicant's business. The thrust of his evidence is that there is an integral connection between the consultation with a physiotherapist and the subsequent pilates group training. In a way, this 'integral connection' is the focus of Mr Wescombe's philosophy, having regard to his book 'From Pain & Injury to Happy and Healthy' as well as the applicant's webpage.
Mr Wescombe outlined that participants in the pilates group training have been given an exercise plan as part of their consultation. That consultation is referred to as a 'body assessment'. The 'body assessment' involves a discussion with the client to ascertain 'why they have come in' and also 'the results they're hoping to achieve': ts 51, 26 November 2019.
The exercise plan may recommend reformer pilates either with a physiotherapist or a specialist reformer pilates consultant. It is generally recommended that the group pilates participants have follow-up consultations with a physiotherapist every 28 to 90 days.
Ultimately, I accept Mr Wescombe's evidence that his approach is that the reformer pilates classes have a close relationship with, or may be viewed as an extension of, the physiotherapy consultations at the Premises.
However, for reasons that I will explain, it is apparent that clients are able to attend the group reformer pilates classes without engaging in physiotherapy consultations.
While I accept Mr Wescombe's philosophy in relation to the close or integral connection he sees between physiotherapy consultations and the group pilates classes, that, of itself, does not resolve the issue before me.

Ms Tribe

Ms Tribe attended a group pilates class at the Premises. While the circumstances surrounding her attendance were in contest, she attended the class without engaging in a physiotherapy consultation. The contest was around whether she actively 'dodged' efforts by the staff at the Premises to engage with her.
I observed a video recording of Ms Tribe's attendance at the Premises. It is difficult to infer too much from what I observed. However, Ms Tribe's evidence does demonstrate that a client can attend a group pilates class without needing to see a physiotherapist.

The planners

I found the evidence of the planners to be of limited assistance in these proceedings. That is not a criticism of either Mr Leigh or Mr Teo but reflects the nature of the issue before me. The central issue before me - being the proper characterisation of the applicant's activities - is a question of law.
Mr Teo visited the Premises and observed the operation of the consulting rooms and the reformer pilates classes. Mr Leigh did not. To the extent that the planners' evidence related to the precise mechanics of how the applicant operates its business, I accept Mr Teo's evidence over that of Mr Leigh.
Mr Leigh did not know (nor did he purport to know), in close detail, the manner in which the applicant utilises the Premises. While Mr Robertson, counsel for the applicant, was critical of Mr Leigh's lack of familiarity with the applicant's business, I think that criticism is unfair. I found Mr Leigh to be a candid witness but he does not have access to the same level of information as Mr Teo.
It is also the case, as I will explain, that I accept Mr Leigh's evidence that the applicant's use of the Premises is far more intense as compared against a medical centre.

The parties' submissions

Applicant's submissions

The gravamen of the applicant's case is that the use of the Premises centres on the physiotherapy and related treatments offered by Mr Wescombe and his team and that the activities should not be 'compartmentalised' such that the reformer pilates classes are regarded as 'exercise'. To do so would, the applicant submits, 'trivialise' the client programmes that may have been set by a practitioner.
The applicant also submits that no negative inference should be drawn from the fact that 'memberships' are offered or because blocks of reformer pilates group classes may be purchased. The applicant submits that this is just practitioners 'bundling' their services to clients.
The fact that the reformer pilates classes may be run by a pilates instructor does not take away the 'medical quality' of what the practitioners are doing. In its closing submissions, the applicant draws the analogy that when a doctor sees a patient but leaves aspects of the treatment to others (such as a nurse), the treatment administered by the nurse, as ordered by the doctor, remains medical in nature.
The fact that the physiotherapist may 'step away', and leave the reformer pilates classes to be run by an instructor does not mean that the pilates classes are just 'exercise'.
By reference to decisions such as Pearce and City of Wanneroo [2010] WASAT 77; (2010) 73 SR (WA) 1 (Pearce) and Moore and City of Wanneroo [2017] WASAT 145 (Moore), the applicant says the correct approach is to look at the 'entirety of what the use [is]'. The overarching point the applicant makes in its closing submissions is that it is not for the City (nor the Tribunal) to query the treatment programs established by a practitioner: '[n]obody should be second guessing the health professionals treatment techniques'.
The applicant also says there is a broader picture that needs to be taken into account. That picture is that the 'real mischief' the City is trying to address is simply to appease nearby residents. The applicant refers to the resident petition that seeks to 'stop noise, traffic congestion, damage to local verges and reticulation'.
The applicant submits that its case stands or falls on the evidence of the practitioners and how they conduct their programmes to treat clients' injuries or ailments. That evidence, from Mr Wescombe, is that the treatment regime at the Premises is 'integrated'.
The applicant submits that the evidence demonstrates that the applicant is using the Premises in accordance with the JDAP Approval as a 'medical centre' in that the Premises is being used by 'one or more health consultants for the investigation and treatment of human injuries or ailments and for general outpatient case (including preventative care, diagnosis, medical and surgical treatment and counselling)'.

In relation to the discretion under s 255 of the PD Act, the applicant submits, based on the relevant principles that inform the discretion I am exercising, as set out in decisions such as Drake and City of South Perth [2005] WASAT 271 (Drake) at [93]-[97] and Garnham and City of Mandurah [2010] WASAT 106; (2010) 74 SR (WA) 1 (Garnham) at [22], that I should not affirm the Direction. These principles are set out at [101].
The applicant's arguments include the fact that the Premises is not the only activity that generates noise in the locality. The adjoining café within the Approved Development is popular with cyclists and the Premises is close to Whitfords Avenue which is a busy regional road.
The applicant also outlined that members of the local community rely on the treatment they receive at the Premises. The applicant says it has been upfront with its intended use of the Premises, including in relation to the signage which was in place before opening.

Respondent's submissions

The respondent's closing submissions point to discrepancies between the evidence of Mr Wescombe that a body assessment is required prior to attending a reformer pilates class and the evidence of Ms Tribe as well as the applicant's webpage which outlines that such assessments are only 'recommended'. The respondent's submissions set out the following extract from the applicant's webpage:
We offer a range of membership levels at Best Body to cater for different lifestyles. To find out which membership is best for you, we recommend booking in for a free Pilates Body Assessment at your local studio. Once we understand what you're looking to achieve from Reformer Pilates, we can advise you on the most appropriate classes and membership to help get you there.
The respondent's closing submissions submits that a 'body assessment' is not a mandatory element of attending group pilates classes at the Premises. However, the respondent says the above statement outlines that the body assessment process is used to 'let [the client] decide what they want to do' and to enable the client to get 'where they want to get to' and achieve 'the type of results they're after' in 'their personal health journey'.
The respondent's closing submissions also refers to the following from the applicant's webpage:
Before attending our Reformer Pilates classes, it's best to come in for your free Pilates Body Assessment (valued at $80). During this oneonone session, we will gain an understanding of your body, your lifestyle and what you hope to gain from attending our classes. From here, we will be able to recommend a membership that is most suitable for you. Our Lifestyle Memberships offer the greatest amount of value in terms of cost per class, while also ensuring you get the most out of the Best Body experience.
The respondent submits that the above statement outlines that the purpose of the 'body assessment' is not directed to the treatment of illness or ailment. Rather it is a process to work out what 'membership' package is most suitable for the client. That submission is also consistent with the following extract from the applicant's webpage:
If you're interested in joining Best Body, we offer a range of membership tiers to suit different needs and lifestyles. It's best to make an appointment for a free Pilates Body Assessment (valued at $80) so that we can recommend the right membership for you.
The respondent also refers to the home page for the applicant's webpage which contains two separate links. One says 'Pain or Injury? Choose Physio' and the other says 'Better Body? Reformer Pilates'. The respondent submits that, contrary to the evidence of Mr Wescombe, reformer pilates classes are directed to people who want a better body whereas people who are suffering injury or pain are directed towards the applicant's physiotherapy practice.
There are other examples that the respondent referred to which, it submits, evince the fact that the reformer pilates classes are targeted towards improving one's body and not the treatment of injuries or ailments.
The respondent says the various statements on the applicant's webpage serve to undermine the evidence of Mr Wescombe that the reformer pilates are an integral part of the physiotherapy treatment offered at the Premises.
Finally, the respondent submits that the content of the applicant's webpage demonstrate that the reformer pilates classes at the Premises are primarily targeted towards women under 50 (whereas Mr Wescome's evidence is that the target demographic is women over 50) who 'want to build core strength, increase flexibility, lose weight and tone up rather than for the purpose of treating specific injuries'.

Interpretation of planning schemes: applicable principles

DPS 2 is a local planning scheme prepared pursuant to the (then) Town Planning and Development Act 1928 (WA) and continued pursuant to s 68(1)(a) of the PD Act. DPS 2 is 'subsidiary legislation' and therefore a 'written law' for the purposes of s 5 of the Interpretation Act 1984 (WA) (Interpretation Act). DPS 2 should be construed having regard to the ordinary principles of construction.
These principles include that, as a matter of legislative context, it is relevant that planning schemes are not ordinarily drafted by Parliamentary Counsel: Sanders v City of South Perth [2019] WASC 226 at [98]-[99] (Quinlan CJ). Planning schemes should be construed broadly and sensibly, not pedantically: Australian Unity Property Limited v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 at [84] (Buss P, Murphy and Mitchell JJA) (Australian Unity Property); Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132 at [25] (McLure JA, Steytler P and Pullin JA agreeing).
By reason of s 18 of the Interpretation Act, a construction that would promote the purpose or object underlying the written law (whether stated in the written law or not) should be preferred to a construction that would not promote that purpose or object.
I am mindful that s 18 of the Interpretation Act does not direct me to apply a construction which 'will best achieve' the object of the legislation. Rather, s 18 of the Interpretation Act operates where there is more than one construction open. In such circumstances, s 18 of the Interpretation Act provides that I should choose a construction that would promote the underlying objects or purposes of the legislation as against one which would not: Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368 at [37] (Banks-Smith J); see also Dao Ji Association and City of Gosnells [2020] WASAT 10 at [96].
The planning framework has not materially changed since the JDAP Approval was granted and there is no argument that the activities are protected as non-conforming uses. Therefore, the principles relating to the characterisation of non-conforming uses are not relevant: Galati and City of Rockingham [2007] WASAT 198 at [28]; Yujnovich and Town of Port Hedland [2016] WASAT 19 at [24].
As I have stated, this is not an ordinary land use classification exercise of a proposed land use. The question for me is whether the applicant's use of the Premises is authorised by the JDAP Approval. However, the principles of land use classification remain relevant as they allow an evaluation of the applicant's use of the Premises in the context of the JDAP Approval. Indeed, neither party suggested otherwise.
The starting point for this analysis is the decision of the New South Wales Court of Appeal in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 (Hutley, Glass and Samuels JJA) (Foodbarn) which outlines the principles that apply where two or more land uses may be present on a site. Glass JA outlined, at 161, that:
It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts.
and:
Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.
The principles in Foodbarn were applied by the Full Court of the Supreme Court of Western Australia in Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431 (Kennedy J, Ipp J, Steytler J) (Gull Petroleum). In Gull Petroleum the Full Court emphasised that it was important that what are independent uses should not be 'lumped' into one dominant use for the purpose of classification: at [53]. The Full Court explained at [52]:
However it seems to me that each proposal must be looked at on its own merits. The classification of the proposed uses should not be carried out either in a mechanical or in an arbitrary way. If, in a particular case, the manner in which two uses are to be combined on a particular site makes it inappropriate to categorise the resulting use as a dual use with each use falling within a definition in the Scheme, perhaps because the proposed manner of combining the two uses so changes the character of one or both of them that it or they can no longer sensibly be taken to fall within the definition or definitions in the Scheme, then there should be no such categorisation. Where, on the other hand, the character of each use remains unaffected by the fact that one site is shared between them there is no reason why the categorisation of each use should be any different than if each had been effected from its own site. If either use is unacceptable within the particular location it would not be approved. That consequence would not be altered by the fact that another, permitted, use would be effected from the same site.
The High Court case of Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211; (1983) 51 LGRA 114 (Gibbs CJ, Murphy J, Wilson J, Brennan J, Deane J) (Lizzio) is also instructive.
In Lizzio the landowners supplemented their family income by selling flowers from their dwelling in suburban Sydney. The flowers were grown on their property (as well as on an adjoining property). The landowners sold about 55 to 60 bunches per week from under a beach umbrella on their property.
The City Council brought enforcement proceedings against the landowners. The matter ultimately ended up before the High Court. At each stage, the landowners contended that their selling of flowers was not in breach of the planning scheme for two reasons.
The first reason was that the selling of flowers was merely an incidental aspect of the use of the land for the purpose of a dwelling, and was not a distinct or separate use: Lizzio at 215; 115. The second reason, which is not relevant in these proceedings, was that the landowners had existing use rights on the basis that the use commenced before the commencement of the relevant planning controls.
The question of whether the selling of flowers was properly characterised as an incidental aspect of a residential use or a separate use was addressed by Gibbs CJ (with whom Murphy J, Wilson J and Brennan J agreed) who stated (Lizzio at 216; 116-117):
Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwellinghouse. The question is one of fact and degree. Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision reached in the courts below that the use of the land in the present case could not be regarded as merely incidental to its use for the purposes of a dwellinghouse.
As was discussed by Parry J in G&G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel [2018] WASAT 9; (2018) 94 SR (WA) 36 an 'incidental use' or 'ancillary use' may be regarded as a misnomer in planning law. Parry J referred (at [23]) to the decision of (then) Member Gibson in Pacific Seven Pty Ltd v Knox City Council (1993) 11 AATR 325 (Pacific Seven) where she observed that:
It has always been recognised that land may be used for more than one use. Land can also be used for more than one activity. However, not all activities constitute separate uses in their own right. Sometimes activities will be ancillary or incidental to the primary use of the property, in which case they will not constitute a separate use but are considered to be part and parcel of the primary use. Whilst these are commonly termed 'ancillary uses', the word 'use' in this context is a misnomer. They are really activities which are an ancillary part of the primary use.
Member Gibson's analysis in Pacific Seven was endorsed by the Supreme Court of Victoria in Ho v Greater Dandenong City Council [2012] VSC 165; (2012) 188 LGERA 424 at [80] (Macauley J).
In Northcote Food Wholesalers Pty Ltd v Northcote City Council (1994) 84 LGERA 54 (Northcote Food Wholesalers) Teague J outlined (at 67) that:
[T]here is no single test to determine dominant against ancillary, and that different criteria, themselves not readily susceptible of classification, perhaps relating to appearance or association, perhaps of a planning nature (like traffic or parking), perhaps of a monetarily quantitative nature (like revenue), perhaps of a geographically quantitative nature (like scale) are looked to as appropriate in the circumstances of each case.
Teague J's analysis in Northcote Food Wholesalers was cited with approval by Osborn J in Hoe v Manningham City Council [2011] VSC 543; (2011) 183 LGERA 441 at [22]; and by Williamson DCJ in Caravan Parks Association of Queensland Ltd v Rockingham Regional Council [2018] QPELR 221; [2018] QPEC 52 at [14(e)].
In Humich and City of Gosnells [2008] WASAT 298 (Humich) the Tribunal, in the context of a proposed pet shop and ancillary products, observed that land use classification is 'a question of fact and degree in all the circumstances of a particular case': at [29]. That observation finds support in cases such as Lizzio (216-217; 116-117); and Bright Image Dental Pty Ltd v City of Gosnells [2017] WASC 229; (2017) 225 LGERA 345 at [53] (Pritchard J); upheld on appeal Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134 (Martin CJ, Buss P, Mitchell JA).
It is also the case that a planning scheme should be construed and applied 'objectively and logically': AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; (2012) 186 LGERA 390 at [46] (Chesterman JA, Phillippides JA and Wilson AJA agreeing). Likewise, the Court of Appeal of Western Australia has stated that the construction of a planning scheme is 'a process of determining the objective meaning of the legislation': Australian Unity Property Ltd at [77].

Evaluation of whether the Premises is operating as a medical centre

This has not been a straight-forward decision for me. However, for reasons that I will explain, I am not satisfied that the Premises are being used only for the purposes of a medical centre as authorised by the JDAP Approval.
It is not in contest that Tenancy 2 is operating as a 'medical centre'. However, in my view, Tenancy 3 is being used for a separate land use that is not currently authorised. It is not my role to classify that separate land use in the proceedings. However, for the following three (overlapping) reasons, I am satisfied the current use of Tenancy 3 is not for the purposes of a medical centre.
Firstly, I am not satisfied that the pilates classes are a 'medical centre' use for the purposes of DPS 2. That is, I find that the group pilates classes means that Tenancy 3 is not 'premises … used by one or more health consultant(s) for the investigation or treatment of human injuries or ailments and for general outpatient care (including preventative care, diagnosis, medical and surgical treatment, and counselling)'.
The terms 'investigation', 'treatment', 'injuries', 'ailments' and 'outpatient care' are not defined in DPS 2. Each of these terms therefore carry their ordinary and common meanings: van der Feltz v City of Stirling [2009] WASC 142; (2009) 137 LGERA 236 at [90] (Murphy J). In the Macquarie Dictionary (6th Edition):
(a)the verb 'investigate' means 'to make inquiry, examination, or investigation' (page 780);
(b)the verb 'treatment' means 'the application of medicines, surgery and psychotherapy … to a patient to cure a disease or condition' (page 1564);
(c)the noun 'injury' means 'harm or any kind done or sustained' (page 764);
(d)the noun 'ailment' means 'a morbid affection of the body or mind' (page 30); and
(e)the noun 'outpatient' means 'a patient receiving treatment in a hospital but not an inmate' (page 1044). The noun 'care', used in this context, means 'protection' (page 230).
There is nothing in the ordinary and common meaning of these terms that would suggest or infer that a client attending a group pilates class, whereby there is no individual consultation, and moreover where the client may not have even seen a physiotherapist, is participating in a session where 'injuries' and 'ailments' are 'investigated' or 'treated'. Furthermore, the applicant did not produce any evidence, nor make any submissions, to the effect that the group pilates classes involved 'outpatient care'.
Reading and applying DPS 2 in a practical and common sense manner and applying a purposive approach to construction, in my view, the group pilates classes do not sufficiently involve 'investigation' or 'treatment' of an 'injury' or 'ailment'. Those 'investigations' and 'treatments' are undertaken within Tenancy 2 by a health practitioner in a consultation setting.
Ultimately, I consider that the group pilates classes within Tenancy 3 comprise an activity that is more about the maintenance of good health (and a 'better body'). In that sense, the group pilates classes are not materially different to any other physical activity the purpose of which is to maintain health and fitness. The presence of reformer beds and an adjoining physiotherapy practice does not convert the applicant's use of the Tenancy 3 of the Premises as a pilates studio into a 'medical centre' use.
I do consider that reformer pilates in an appropriate context would be a 'medical centre' use (such as, for example, in a consultation room within Tenancy 2 whereby a patient might be treated for an injury, be undergoing rehabilitation or for preventative care). Certainly Mr Wescombe was of the view that his practice involves rehabilitation for some patients: ts 84, 26 November 2020.
However, I am mindful of Teague J's observations in Northcote Food Wholesalers (at 67) in relation to evaluating multiple activities to ascertain whether there is a dominant or ancillary land use (or whether an activity is a separate use altogether). In this instance, taking into account the frequency and volume of pilates classes being held in Tenancy 3, the number of participants in each session and the fact that clients do not need to be under the supervision of a physiotherapist to attend classes, I am inclined to the view that the applicant's pilates classes in Tenancy 3 do not form part of the 'medical centre' use occurring in Tenancy 2.

Furthermore, in the language of Foodbarn, it cannot be said that there is a single dominant use of the Premises. I accept that there may be a close connection between the use of Tenancy 2 - which is being used for the purpose of a medical centre - and the use of Tenancy 3. However, as a matter of fact and degree, the use of Tenancy 3 as a group pilates studio is not a 'medical centre' use. The case authorities caution against independent land uses being 'lumped' together for the purposes of classification: Gull Petroleum at [53].
Mr Robertson urged me, by reference to decisions such as Pearce and Moore, to 'look at the entirety of what the use is' in evaluating the activities at the Premises. In undertaking that exercise, it seems to me that the applicant's business divides into two. There is a distinct physiotherapy practice and there is a distinct pilates studio. There is some relationship between the two, but they remain separate and distinct land uses in town planning terms. The physiotherapy practice (being a 'medical centre' use) is authorised by the JDAP Approval. The pilates studio is not.
Secondly, while the applicant's intent or preference may be for clients to utilise the pilates classes as an aspect of their physiotherapy treatment, it is clear that it is not strictly necessary for clients to attend physiotherapy in order to be able to attend pilates classes. That conclusion follows a plain evaluation of the evidence as a whole, especially the applicant's webpage, which was referred to a number of times in the respondent's submissions. I accept the respondent's submissions in this regard.
While the applicant's clear preference is for clients to engage with the physiotherapy services, it is equally clear that clients can choose to utilise the pilates studio and nothing more. This fact alone demonstrates that there is more than use operating at the Premises.
Furthermore, Mr Wescombe’s evidence is that it is common (after an initial 28 day review) that a client only sees a physiotherapist once every 90 days: ts 53 and 102, 26 November 2019. There comes a point where the connection between the physiotherapy practice and the group pilates classes is so loose that it falls away. I consider that if clients are not under the direct supervision of a health practitioner during the pilates classes then such classes cannot be a 'medical centre' use because such classes are not undertaken for the 'investigation' or 'treatment' of 'injuries' or 'ailments'. The pilates instructor taking the class is not directly engaging with each of the (up to) 16 clients such that it could be said that they are 'investigating' or 'treating' an 'injury' or 'ailment'. The pilates instructor is taking the class.
It follows that it cannot be said that the pilates classes are an integral aspect or component of the physiotherapy services at the Premises. For these reasons, in my view, there is no room for argument that the only land use operating at the Premises is a medical centre. The pilates studio operating within Tenancy 3 is a separate and independent use.
At the risk of being overly repetitive, I stress that my conclusion is not to say there is no connection or relationship between the physiotherapy services and the pilates classes. There plainly is. However, as the Tribunal explained in Humich at [29], land use classification involves questions of fact and degree. As I have explained, the volume and frequency of the pilates classes at the Premises (about 70 per week) leave me in no doubt that, notwithstanding that there may be some link between the physiotherapy services and pilates, the group pilates classes in Tenancy 3 are a distinct and separate land use that requires approval.
Thirdly, for completeness, it is appropriate that I address the applicant's argument to the effect that because Mr Wescombe considers that reformer pilates is an integral aspect of his physiotherapy practice, that belief should inform (or even dictate) the land use classification exercise that I must resolve.
That argument is reflected in the applicant's submissions to the effect that '[n]obody should be second guessing the health professionals' treatment techniques' and that I should be careful not to 'trivialise' treatment programs as just 'exercise'.
I do not accept the applicant's argument that to find that the Premises are not a 'medical centre' is to 'second-guess' or 'trivialise' Mr Wescombe's professional opinion. The construction of DPS 2, and the associated evaluation of whether the activities at the Premises are authorised, is an objective exercise.
In undertaking that exercise, the treatment philosophy or approach of a health professional does not, of itself, necessarily inform the question of the proper classification of a land use for town planning purposes. That is, while Mr Wescombe may consider that the pilates classes are an integral aspect of his physiotherapy business, his belief does not convert the group pilates classes into a medical centre use for the purposes of DPS 2.
As I have explained, I am satisfied that in town planning terms, the Premises is being used for two separate and discrete uses: Tenancy 2 is operating as a medical centre and Tenancy 3 is operating as an unauthorised pilates studio.
Having made those findings, it therefore follows that I am required to consider whether to affirm the Direction.

Principles that inform the discretion under s 255 of the PD Act

In the exercise of discretion as to whether to affirm the Direction a number of settled principles emerge from previous decisions such as Drake, Garnham and Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301 (Morea Architects). The principles which inform the exercise of discretion under s 255 of the PD Act include (Morea Architects at [63]):
(a)It is in the public interest of the proper and orderly development and use of land that planning law should generally be complied with. It is expected that, ordinarily, those who carry out subdivision or development will comply with planning legislation and any applicable approval. As Kirby P (as he then was) observed in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361 at 365 [Warringah Shire Council] unless the legislative purpose of planning is upheld, private advantage may accrue to individuals which others cannot enjoy.
(b)The impact of the contravention of the scheme on the relevant locality and the environment. This will involve an assessment as to whether the breach is technical in nature in that it is unnoticeable other than to those well versed in the relevant law.
(c)The factual circumstances in which the planning scheme was contravened.
(d)The time that has elapsed since the unauthorised development was undertaken.
(e)The expense and inconvenience which would be involved in remedying the contravention of the planning scheme.

Consideration of the s 255 principles

The public interest in complying with development approvals

It is no doubt an important, even fundamental, principle that planning laws should generally be complied with. In Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81; (2010) 174 LGERA 1 at [74] (Swan Bay Holdings) Hasluck J stated, in the context of an offence relating to unauthorised development under the PD Act, that:
Planning controls exist for the benefit of the community as a whole. Their efficacy depends not only upon formal enforcement but also upon a pervasive culture of general observance and respect for the underlying communal purpose.
Hasluck J's observations in Swan Bay Holdings were referred to with approval by Le Miere J in Qin Chen v City of Stirling [2014] WASC 183; (2014) 203 LGERA 244 at [5] (Chen).
I agree with the observations of Hasluck J and Le Miere J. I also agree with the analysis and principles set out in Drake, Garnham and Morea Architects. It is fundamental that members of the community understand the requirement to comply with relevant planning laws, including any development approval that has been obtained.
Were a more relaxed approach to compliance issues adopted, the overall result would likely be adverse amenity impacts across the community resulting from those who regarded planning laws, approvals and related conditions as optional or aspirational.
There is an underlying communal purpose in development approvals that demands, as Hasluck J described, a 'pervasive culture of general observance': Swan Bay Holdings at [74]. Furthermore, as was set out by Kirby P in Warringah Shire Council, if compliance with planning requirements is not observed, the legislative purpose of planning will not be upheld. The result would be unearned benefits accruing to some individuals which others cannot enjoy and which are likely to result in amenity impacts.
I therefore start from the general position that, as a matter of orderly and proper planning, the JDAP Approval should, in the ordinarily course, be complied with. However, I must consider the range of other factors which also inform the question as to whether to affirm the Direction.

The planning impacts of the applicant's contravention

I consider that the applicant's contravention is not purely technical in nature. The impact of operating a pilates class results in a very different patronage of the Premises than would be the case for a 'medical centre'.
The evidence of Mr Leigh was that the consequential impacts of the pilates studio in terms of traffic, parking and general amenity are markedly very different from that of a 'medical centre'.
Rather than having patients arrive for their consultation or appointment throughout the day and then leave, the group pilates classes result in (up to) 16 people attending the Premises at once for approximately one hour. During a changeover period there may be (up to) 16 more people waiting. That is, there is potential for up to 32 people to be attending the Premises at one time for pilates classes (although I note that the average class attendance is 10 to 11 clients).
It is also the case that with classes commencing at 6:00 am, the use of the Premises is far more intense as a pilates studio - in terms of hours of operation - as opposed to that of a medical centre.
Mr Leigh considered that the overall use of the Premises for a pilates studio is far more intense than a medical centre use. Mr Teo's evidence did not address this issue. I agree with Mr Leigh. The impacts of the unauthorised activities are noticeable and tangible in town planning terms as there are far more people attending the Premises throughout the day than would be the case for a two practitioner 'medical centre' which was applied for. The contravention is not merely technical. The contravention has resulted in parking, noise and other amenity impacts. These concerns lay at the heart of the petition presented to the City by nearby and adjoining residents.
As for the applicant's submissions that the Premises is not the only activity that generates noise in the locality, I accept that observation but I do not regard it as particularly relevant. I agree that the Premises forms part of a mixed use development (the Approved Development) that fronts Whitfords Avenue which is a regional road and which is also popular with pedestrians and cyclists. I also accept that this is not a quiet residential environment.
However, the question for me is not so much whether the applicant is responsible for the noise issues raised by the residents. Rather, the question for me is whether the applicant is acting within the terms of the JDAP Approval and if the applicant is in contravention of that approval, what are the impacts of that contravention.
For the reasons I have explained, the impacts are real and tangible and have town planning consequences for surrounding residents and neighbours.

The factual circumstances in which the contravention took place

The factual circumstances in which the contravention took place do not assist the applicant. However, I am mindful that the applicant for the purposes of these proceedings was not the applicant for the JDAP Approval.
In seeking to amend the approval granted by the JDAP on 6 July 2015 to allow the Premises to be used as a 'medical centre' (for use as a physiotherapist) it was not outlined or indicated that the proposal included an integrated pilates studio.
To the contrary, the information put forward in support of the application to amend the approval (submitted by the consultant architects) indicated that approval was being sought for a two practitioner physiotherapist practice. In a letter dated 24 April 2016 the architect stated that Tenancy 2 and Tenancy 3 'were [t]o be a physiotherapist as one tenancy/one operator at 200sqm'.
If the intent of amending the JDAP Approval (noting again that the applicant was not the applicant for JDAP Approval) was that there would be an integrated pilates studio operating as an aspect of the physiotherapy practice, the application to amend the development approval was potentially misleading.
If it was made clear that the proposed use of the Premises was for a physiotherapy practice (which included integrated group pilates classes) and the JDAP simply approved that use and labelled it a 'medical centre' then, to my mind, I should not affirm the Direction as the Premises would be being used in a manner consistent with what the JDAP had considered and approved.
It would also be the case that if the proposed pilates classes were made apparent in the application materials and the JDAP Approval did not include a condition that prohibited the proposal for pilates classes, then having regard to the principles set out in Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88 at [14] (Snowdale Holdings), it would be appropriate that I construe what would then be an ambiguous approval in a manner that places the least burden on the operator. The principles set out in Snowdale Holdings were cited with approval by Parry J in Castle and City of Rockingham [2018] WASAT 98 at [27].
However, that is not the case. The application materials submitted in support of the physiotherapy practice made no mention of an integrated or associated pilates studio and a pilates studio was not shown on the plans. Group pilates classes within Tenancy 3 is an activity which has subsequently emerged but which is unauthorised.
However, to be clear, I am generally satisfied that the applicant itself has been up-front and transparent in its dealings with the City. For example, following the grant of the JDAP Approval, approval was sought (and obtained) from the City for signage that made it plain that pilates would be one of the activities being undertaken at the Premises. In terms of the signage associated with the Premises, that application was not opaque.
Notwithstanding that observation, all that the City did is approve the signage applied for. It cannot be inferred from that signage approval, however, that the City was granting approval for the Premises to be used as a pilates studio in lieu of the approved medical centre use.

The time elapsed since the unauthorised development

I do not regard this factor as being particularly relevant in the circumstances of this case. The JDAP Approval was issued in October 2016 following which the Premises were established. The City first contacted the owner of No 46 Angove Drive, Hillarys in relation to the use of the Premises on 29 August 2017. The applicant responded to the City on the same day. There was an exchange of correspondence over a period of time before the Direction was issued on 13 September 2018.
While the applicant is critical of what it says was a delay in issuing the Direction, I do not consider that criticism to be fair. The City initially engaged with the applicant in an effort to address the issues arising from the use of the Premises. Only after the matter was not resolved did the City issue the Direction.
I consider the City's actions to be appropriate and reasonable. As a general principle, it is appropriate for planning authorities to work to resolve any issues arising from the use or development of land before taking compliance action. In my view, the City has acted appropriately in its dealings with the applicant.
This is not a long-standing use nor has there been any delay by the City in seeking to ensure that the JDAP Approval is complied with. In this instance, I do not consider the effluxion of time since the contravention to be a relevant consideration that militates against affirming the Direction.

The expense and inconvenience involved in remedying the contravention

The physical removal of the reformer beds from Tenancy 3 does not cause expense or inconvenience. The reformer beds are not affixed to land but are instead in the nature of chattels. The real expense and inconvenience to the applicant arises to the disruption that will be caused to the applicant's business by the cessation of the pilates studio. Members of the community who currently participate in the pilates classes will also be affected if the pilates studio ceases operation.
Mr Robertson outlined that if the Direction is affirmed the impact on the applicant's business will be 'catastrophic'. Mr Wescome's evidence was that up to 16 people may lose their employment if the Premises closed.
The question that arises is whether the applicant's economic concerns arising from business disruption are relevant factors in the exercise of planning discretion. In my view, such concerns may be properly taken into account as they fall within the scope of 'expense and inconvenience' which is an accepted factor that informs the exercise of discretion in reviews under s 255 of the PD Act.
I accept Mr Robertson's submission that affirming the Direction will be highly disruptive, perhaps even fatal, to the applicant's business at the Premises. Indeed, it is plain that the applicant's business will be very significantly disrupted if the Direction is affirmed.
However, having regard to the background of this matter and the town planning impacts that the applicant's contravention are causing, the fact that affirming the Direction will cause significant economic disruption to what is an unauthorised use, is not a sufficient reason not to affirm the Direction.

Conclusion

For the reasons I have explained, applying DPS 2 in a practical and common sense manner, I am not satisfied that the Tenancy 3 of the Premises are being used for the purposes of a 'medical centre'. In my view Tenancy 3 is operating as a pilates studio which is an unauthorised use.
I start from the general premise that the JDAP Approval should, as a matter of orderly and proper planning, ordinarily be complied with. However, there are other factors to consider in relation to whether to affirm the Direction.
The JDAP Approval is only relatively recent. The intended use of Tenancy 3 for pilates classes was not made plain at the time the JDAP Approval was amended.
Had the actual intended use of Tenancy 3 been made clear the City (as the responsible authority) and the JDAP (as the decision-maker) could have given proper consideration as to whether the proposed pilates classes were a part of, or separate, to the physiotherapy practice.
However, what was presented and approved by the JDAP was an express proposal for a (standard) two practitioner physiotherapy practice. No mention was made of the 70 pilates classes per week that were proposed to operate either as part of, or associated with, the physiotherapy practice.
This is not a case where the use of the Premises could be said to have been tacitly approved by the JDAP. The application materials were silent on the pilates classes (although I accept that there was a subsequent application for a sign which indicates pilates would occur at the Premises).

I also find that there are legitimate planning issues arising from the pilates studio. Mr Leigh's evidence, which I accept, is that a pilates studio is a far more intense use of the Premises than a medical centre. That increase in intensity of the use of the Premises has caused town planning impacts in terms of the number of clients attending which has resulted in consequential parking, noise and amenity impacts for nearby residents. These impacts are at the centre of the petition presented to the City in relation to the Premises.
In my view, having regard to all these factors, there is no legitimate reason or justification as to why the JDAP Approval should not be complied with.
I therefore consider that the correct and preferable decision is to affirm the Direction.
Finally, while I have found that the Direction should be affirmed, in my view, it is appropriate to seek to accommodate the applicant to a reasonable extent to enable it to deal with the consequences of the Direction taking account of the current circumstances and uncertainty surrounding COVID-19. I will therefore amend the Direction under s 255(2) of the PD Act so as to give the applicant some additional time to consider its position.

Orders

The Tribunal orders:
1.The application for review is dismissed.
2.Order 1 made on 3 October 2018 is discharged.
3.Direction 1 contained in the City of Joondalup's written direction issued pursuant to s 214(2) of the Planning and Development Act 2005 (WA) and dated 13 September 2018 is varied to read as follows:
Pursuant to s 214(2) of the Planning and Development Act 2005 (Act), the City of Joondalup (City) hereby directs you to, within 120 days from the date of the Tribunal's order of 14 May 2020, to stop and not recommence the Development.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
14 MAY 2020