JECZMIONKA and CITY OF ARMADALE
[2011] WASAT 12
•27 JANUARY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: JECZMIONKA and CITY OF ARMADALE [2011] WASAT 12
MEMBER: MR M SPILLANE (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 27 JANUARY 2011
FILE NO/S: DR 228 of 2010
BETWEEN: HALINA JECZMIONKA
Applicant
AND
CITY OF ARMADALE
Respondent
Catchwords:
Classification of use - Animal establishment - Home business - Use not listed
Legislation:
City of Armadale Town Planning Scheme No 4, cl 4.4.2
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Preliminary question answered in the affirmative and the respondent is invited to reconsider its decision
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Selfrepresented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SLR (WA) 125
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431
Maryland Development Co Pty Ltd v Penrith City Council & Anor [2001] NSWLEC 135
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This application involved the preliminary question as to whether the use proposed by Ms Jeczmionka should be defined as 'Animal Establishment' under the City of Armadale Town Planning Scheme No 4.
The Tribunal found that looking at the proposed use as a whole, there were four components and it was incorrect to classify the use based on only one of the four components as the City of Armadale had done. The City of Armadale was therefore invited to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA).
Background
Ms Halina Jeczmionka (applicant) is the owner of No 14 (Lot 8) McKenzie Grove, Kelmscott (site) which is a 2.1246 hectare lot zoned Rural Living under the City of Armadale Town Planning Scheme No 4 (TPS 4).
The site currently accommodates a singlestorey dwelling and multiple outbuildings and sheds. The applicant sought approval from the City of Armadale (City or respondent) to utilise an existing outbuilding on the site to accommodate a specialised husbandry breeding system for mice and rats to supply pet meat to the pet industry.
On 9 July 2010, the City refused the application for the reason that it determined that the proposed use falls within the land use definition of 'Animal Establishment' under TPS 4 which is an 'X' use in the rural living zone where the applicant's lot is situated.
When the application for review first came before the Tribunal, the City, by letter of 6 August 2010, stated:
The City determined that the proposed land use (mice breeding) falls within the land use definition of 'Animal Establishment' under the Town Planning Scheme No. 4 (TPS No.4), which is defined as follows:
'premises used for the breeding, boarding, training or caring of animals for commercial purpose but does not include animal husbandryintensive or veterinary centre[.]'
The land use of 'Animal Establishment' is a prohibited ('X') use within the 'Rural Living' zone and as such[,] Council does not have the power to approve such a use.
In the circumstances, it was agreed by the parties that the Tribunal first determine as a preliminary issue:
Whether the use/operation proposed by the applicant and described at paragraph 3.1 on pages 2 and 3 of the letter dated 5 March 2010 addressed to the Chief Executive Officer of the City of Armadale from Mr Nik Hidding of Dykstra Planning and headed Development Application Home Business (Specialised Mice Breeding) Lot 8 (No. 4) McKenzie Grove, Kelmscott can or should be classified as falling within the land use definition of 'Animal Establishment' in the City of Armadale Town Planning Scheme No. 4.
Agreed facts
Paragraph 3.1 on pages 2 and 3 of the letter dated 5 March 2010 addressed to the Chief Executive Officer of the City from Mr Nik Hidding, a planner with Dykstra Planning on behalf of the respondent, described the proposed use as follows:
Repeat Industries Pty Ltd has been established to supply pet meat to the pet industry throughout WA. With the common mouse being the principal source of food for most reptiles kept in WA for display and breeding purposes, the demand and requirement for this service is high.
Repeat Industries has developed a secure, intensive specialised husbandry system inclusive of a controlled environment with 7tier breeding/feedlot racks, freezers, and euthanasia chamber. All operations will be in accordance with the Department of Local Government and Regional Development Code of Practice in intensive husbandry (similar to that of rabbits, pigs, and poultry), the Animal Welfare Act 2002, and the Standard for the Hygienic Production of Pet Meat PISC Technical Report 88 Amended 2009. No specific license is required for the proposed operation to occur as advised by the Department of Local Government (Animal Welfare) (refer to Appendix B).
The entire operation is proposed to be protected from weather, and will be temperature controlled between 2230 degrees at all times through the use of reverse cycle airconditioning, with highly effective air flow and extraction fan systems in place to reduce any odours(which are minimal in any event).
All mice will be kept in lab designed enclosed cages, where the cover must be removed before access to the mice can be undertaken. Furthermore, this will only occur in the observation chamber which has walls of 450mm high. This will allow the mice to be interchanged securely and without any risk of escaping.
The 7tier aluminium construction racks and feedlot systems will be supplied by Able Scientific, a reputable firm which has supplied other breeders in the Mice Husbandry Industry throughout Australia. These racks will be cleaned weekly using disinfectants and bleaches, and hosed down with water.
The breeding capacity for the operation will be designed for 5000 female mice and 300 female rats. Only 90 male mice and 15 male rats will be maintained for breeding purposes at anyone time. The total area required for the proposed use is less than 50m2 at full capacity, which is acceptable under the Home Business requirements.
All animals will be placed on aspen enrichment bedding that has less viscosity and higher absorbency. The animals will be fed a fixed formulation diet for Laboratory mice and rats, fortified with vitamins and minerals to meet the requirements of breeding rodents.
The euthanasia procedure is by C02 inhalation within a specially-designed acrylic chamber. An optimal flow rate displacement of 1020% of the chamber volume per minute is expected, until the mouse is unconscious. The flow rate is associated with the rapid loss of consciousness and death is expected with minimal distress to the rodents. Gas flow will be reduced but maintained for 2 minutes to ensure death. All staff will be adequately trained in the safe handling of C02 gases.
All animals besides breeding stock are expected to be euthanised quickly within 13 weeks of birth. Once euthanised, the stock is then quickfrozen for pet meat and stored in freezers 18 degrees below zero in airtight plastic lock bags to minimise dehydration and clearly marked with labels. Multiple freezers will be used to store the frozen stock, thereby providing good stock rotation and ensuring product freshness.
Repeat Industries will be a wholesaler for the industry, and will be supplying a delivery service direct to the client, removing the need for visitors and ensuring acceptable traffic numbers to the site.
A maximum number of three (3) employees will be required at full production. Two of these staff members reside on the subject land, and the third will be part time and will attend the site on an 'as required' basis. Hours of business are expected to be from 9am4pm Monday to Friday and 10amlpm on Saturday and Sunday (on weekends only feeding is required).
Statutory framework
The City of Armadale Town Planning Scheme No 4 (TPS 4 or Scheme) is the relevant town planning scheme under which the use must be classified. Relevant definitions in the Scheme are:
...
'animal establishment' means premises used for the breeding, boarding, training or caring of animals for commercial purposes but does not include animal husbandry intensive or veterinary centre;
'animal husbandry intensive means premises used for keeping, rearing or fattening of pigs, poultry (for either egg or meat production), rabbits (for either meat or fur production) and other livestock in feedlots;
...
'home business' means a business, service or profession carried out in a dwelling or on land around a dwelling by an occupier of the dwelling which
(a)does not employ more than 2 people not members of the occupier’s household;
(b)will not cause injury to or adversely affect the amenity of the neighbourhood;
(c)does not occupy an area greater than 50 square metres;
(d)does not involve the retail sale, display or hire of goods of any nature;
(e)in relation to vehicles and parking, does not result in traffic difficulties as a result of the inadequacy of parking or an increase in traffic volumes in the neighbourhood, and does not involve the presence, use or calling of a vehicle more than 3.5 tonnes tare weight; and
(f)does not involve the use of an essential service of greater capacity than normally required in the zone;
...
Furthermore, where a proposed use is not listed, cl 4.4.2 of TPS 4 states:
If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the City may
(a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
(b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
Applicant's submissions
To address the respondent's decision to classify the proposed land use as 'Animal Establishment', the applicant sought the opinion of Mr Ernest Samec, a solicitor, and sought to rely on Mr Samec's opinion as her submission in these proceedings. Mr Samec, in his letter dated 20 May 2010, stated as follows:
In my opinion the proposed use of mouse reproduction does not fall within the land use definition of 'Animal Establishment' under TPS 4 for the following reasons.
The proposed use does not involve the breeding of mice. The Scheme does not define breeding nor does a SAT decision appear to have considered the meaning of the word breeding in a planning context. It is therefore necessary to go to the ordinary meaning of the word 'breeding' in a dictionary. The Macquarie [D]ictionary defines breeding as:
'breeding ... 1. the rearing of animals to improve their quality. 2. The production of new plant forms by selection and crossing ...'
The proposed use of mouse production on the land is not intended to improve the quality of the mice. There will be no human intervention in the mice production process amounting to animal breeding. Mice will not be selected and bred to improve their appearance or for any other quality.
The mice will simply be allowed to multiply and at the early stage of 1 to 3 weeks from birth will be frozen. Unlike humans, the pet reptiles are uncritical consumers and are satisfied with the mice fed to them. Breeding for the purpose of improvement is not an element of the mouse production process.
The proposed use is not intended for the 'boarding, training or caring of animals' as specified under the land use definition of 'animal establishment' under LPS 4.
Other owners of mice will not deliver their mice to the land for boarding, training or caring. The proposed production of mince on the land will not be remotely similar to dog kennels or a cat haven where animals are boarded and cared for until their owner returns. The mice will not be trained for any purpose.
In my opinion, the proposed use of mouse production and freezing on the land does not properly fall within the listed use of 'animal establishment' or any of the other defined land uses under LPS 4.
I consider that the proposed use falls within the meaning of a 'Use Not Listed' under clause 4.4.2 of LPS 4.
On this basis[,] the Council may consider the development application within its discretion on the land zoned the 'Rural Living 2' under LPS 4.
Conclusion
In my opinion[,] the proposed use may on the land be best described as 'mouse production and freezing'. The proposed use does not involve breeding mice of the purpose of improving their quality. The frozen mince will be distributed to pet shops for pet reptile consumption with no customers attending on site.
The proposed use does not properly fall within:
•the defined land use of 'animal establishment'; or
•any other defined land uses under LPS 4.
In my opinion[,] the proposed mice rearing use falls within the meaning of a not listed use under LPS 4 and should be dealt with under the not listed use provisions of the City's Scheme.
Hence, the development application is capable of approval. The Council enjoys discretion to consider the application on its planning merits in the 'Rural Living 2' zone of LPS 4. ...
Mr Hidding, the applicant's planner referred to at para 8 above, in his letter dated 5 March 2010 under the heading 'Town Planning Considerations', had also stated:
4.0Town Planning Considerations
The following rationale provides further support in favour of the proposed home business:
4.1Zoning
The subject land is zoned 'Rural Living 2' under the Local Scheme, as are all adjoining lots
4.2Land Use Permissibility
Under the City of Armadale town Planning Scheme No. 4, 'Home Business' is defined as:
'a business, service or profession carried out in a dwelling or on land around a dwelling by an occupier of the dwelling which:
a)does not employ more than 2 people not members of the occupier's household;
b)will not cause injury to or adversely affect the amenity of the neighbourhood;
c)does not occupy an area greater than 50 square metres;
d)does no involve the retail sale, display or hire of goods of any nature;
e)in relation to vehicles and parking, does not result in traffic difficulties as a result of the inadequacy or parking or an increase in traffic volumes in the neighbourhood, and does not involve the presence, use or calling of a vehicle more than 3.5 tonnes tare weight; and
f)does not involve the use of an essential service of greater capacity than normally required in the zone.'
'Home Business; is an 'A' use under the Scheme, meaning that the use is not permitted unless the City has exercised its discretion by granting planning approval after giving special notice in accordance with clause 9.4 of the Scheme.
As the proposed use fits within the definition of 'Home Business', it is necessary to demonstrate that the proposed use complies with the relevant development standards and requirements of the Scheme.
Noteworthy is the fact that the use of 'Animal Husbandry Intensive' is a use that can be considered within the Rural Living zone. Animal Husbandry Intensive is defined 'as a premises used for keeping, rearing or fattening of pigs, poultry (for either egg [or] meat production, rabbits (for either meat or fur production) and other livestock in feedlots.' Council believes that this definition does not fit the proposed use for the following reasons:
'Mice and rats are not livestock and will not be kept in a feedlot. Therefore the activities proposed cannot be said to fit the definition for 'Animal Husbandry Intensive'.
Furthermore, Council believes that the proposed use actually fits in with the Land Use Definition for 'Animal Establishment' which is defined under the Scheme as 'a premises used for the breeding, boarding, training or caring of animals for commercial purposes but does not include animal husbandry - intensive or veterinary centre.'
The proposed use does not involve breeding, boarding, training or caring of animals for a commercial purpose (as Kennels Establishment or Dog Boarding Establishment would), and as the land use definition suggests.
Therefore, it can be said that the proposed use does not fit in specifically with ether Land Use Definitions but is similar in operation, scale and production of the husbandry use.
Accordingly, of all the land uses within the Scheme, 'Home Business' best describes the scale and nature of the land use. (Own emphasis)
Respondent's submissions
By letter of 27 August 2010, the City wrote to the Tribunal attaching a document containing the City's submissions which are set out below. Paragraphs 4 to 6 of the document addressed the issues raised by Mr Samec and stated:
The applicant's principal written submission letter (dated 20 May 2010 from Samec Legal) endeavours to describe the Town Planning Scheme No.4 (TPS No.4) definition of 'Animal Establishment' based on the interpretation of the word breeding from a specific dictionary.
The information provided to the City by the applicant in their letter dated 5 March 2010 at paragraph 3.1 on pages 2 and 3 clearly describes the proposed activity as using male mice/rates and female mice/rats for the purposes of breeding. Such use/activity clearly falls within the definition of 'Animal Establishment' under TPS No.4, which has the same definition as the Model Scheme Text.
Use of a definition from a specific dictionary chosen by the applicant for the purpose of this application clearly does not take into account the process proposed to occur on site. This practice undermines the intention of classifying land uses within the Town Planning Scheme definitions and establishes an undesirable precedent to encourage other property owners to make similar applications.
In addition, the City submitted:
The City received a development application to conduct mice breeding from the abovementioned 'Rural Living' zoned property back on 27 November 2009. The City determined that the proposed land use (mice breeding) falls within the land use definition of 'Animal Establishment' under the Town Planning Scheme No.4 (TPS No.4), which is defined as follows:
'premises used for the breeding, boarding, training or caring of animals for commercial purposes but does not include animal husbandryintensive or veterinary centre'[.]
The land use of 'Animal Establishment' is a prohibited ('x') use within the 'Rural Living' zone and as such Council does not have the power to approve such a use. On the basis of the above and recommendation of the City, the applicant voluntarily withdrew the application on 24 December 2009.
The City received a new application on 10 March 2010 by Dykstra Planning to operate mice breeding under the guise of a 'Home Business' which is defined as follows:
'means a business, service or profession carried out in a dwelling or on land around dwelling by an occupier of the dwelling which
(a)does not employ more than 2 people not members of the occupier's household;
(b)will not cause injury to or adversely affect the amenity of the neighbourhood;
(c)does not occupy an area greater than 50 square metres;
(d)does not involve the retail sale, display or hire of goods of any nature;
(e)in relation to vehicles and parking, does not result in traffic difficulties as a result of the inadequacy of parking or an increase in traffic volumes in the neighbourhood, and does not involve the presence, use or calling of a vehicle more than 2.5 tonnes tare weight; and
(f)does not involve the use of an essential service of greater capacity than normally required in the zone'.
'Home Business' is a discretionary ('A') use in the 'Rural Living' zone which means the use is not permitted unless the City has exercised its discretion by granting planning approval after giving special notice in accordance with clause 9.4 of the TPS No.4.
The City was of the opinion that the proposal could not be considered as a 'Home Business' and must be considered as an 'Animal Establishment' irrespective of the scale of the business and the applicant was advised accordingly.
The applicant then submitted a third new application on 4 June 2010 for a 'Use Not Listed' to operate a 'Mice and Rat Production and Freezing' business, which entailed similar activities to the two previous applications.
The applicant was then request[ed] to decide the preferred application to proceed with as both applications were similar in terms of use/operation and accordingly the applicant withdrew the application for a 'Home Business' on 29 June 2010.
After considering the application for a 'Use Not Listed'[,] the City determined that the use neatly falls within the definition of 'Animal Establishment' under the Town Planning Scheme No.4 and therefore, could not be considered as a 'Use Not Listed' and determined to refuse the application on 9 July 2010 for the following reasons:
1.The proposed activity cannot be considered as a 'Use Not Listed' under the City's Town Planning Scheme No. 4, as such use falls within the land use definition of 'Animal Establishment' which is specifically 'Listed' as an 'X' Use in the 'Rural Living Zone' of the Zoning Table of the Scheme.
2.Considering a land use that is 'Listed' in the Town Planning Scheme Zoning Table as a 'Use Not Listed' will set an undesirable precedent to encourage other property owners to make similar applications, thereby undermining the intent of the 'Rural Living Zone' provisions of the Scheme.
3.The proposed land use is not considered to be consistent with the intent and objectives of the 'Rural Living Zone' of the Town Planning Scheme No.4, which partly intends 'to ensure development is sited, designated and managed in harmony with the natural environment and so as to protect the rural landscape and amenity'.
Applicant's reply to respondent's submissions
By letter dated 2 September 2010, the applicant filed the following in reply to the respondent's submissions:
There are 3 classes that this activity could be considered under - Animal husbandry intensive, Home Business or Use Not Listed. Which is why we have put forward several different applications over the last 9 months and cannot understand why the shire keeps coming back with the land use being classed as Animal Establishment.
We would be providing a service that meets the needs of the community. Eliminating back yard reptile food suppliers who breed in squalid extremely overcrowded unethical inhume conditions. Some of these are operating in the Armadale Shire and advertise through the Quoker [sic].
That snakes and lizards are becoming a popular pet at a fast rate. With no supplier of Rodent Food being in WA except illegal backyarders.
The Armadale shire uses reptile shows on occasions and promotes Armadale Reptile Park in there Tourism brochure but doesn't care to look further and realize how desperately this services is needed in their community and surrounding.
I have attached copies of emails that were sent back to me from different shires in regards to my original enquiries as to the areas that I could look at to locate and start up our new Frozen Rodent Supplier business. These reply emails are from City of Armadale, Serpentine - Jarrahdale and City of Gosnells.
One of the emails referred to, dated 30 April 2009, was from Mr David Bond, the senior environmental health officer with the respondent, which stated:
I had a talk with our planning officers after speaking with you and they didn't realised the scale of the operation you were proposing when you spoke to them. I've been told that it would be something they would consider as a home business which would limit the size of it to a maximum of 50sqm.
Above this[,] it would be considered an 'animal establishment' which is prohibited in all zones under the current planning scheme. The town planning scheme defines an 'animal establishment' as follows means premised used for the breeding, boarding, training or caring of animals for commercial purposes but does not include animal husbandry intensive or veterinary centre.
Consideration
The preliminary issue involves the characterisation of a use, that is, to characterise the proposed development to see if it fits any of the defined uses, and if so, whether it can be allowed within the particular zone or whether it is a 'Use Not Listed' and should be dealt with under cl 4.4.2 of TPS 4.
The City is clearly of the view that what is proposed falls within the definition of 'Animal Establishment' in TPS 4 and is therefore a prohibited use in the Rural Living zone where the applicant's premises are located. Whereas the applicant is of the opinion that it should be classified as either a 'Home Business' or a 'Use Not Listed', which would give the Council the discretion to approve it.
Whether the Tribunal has the power to characterise a proposed use for itself was confirmed in Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SLR (WA) 125. At [15] [16], when the then President, Justice Barker, stated:
In The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304, Senior Member Mr DR Parry and I determined, at [24], that under s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) and s 29(1) of the SAT Act:
'The Tribunal has jurisdiction to categorise the use proposed in a planning application in circumstances where the responsible authority has categorised the proposed use.'
Section 252(1) of the PD Act is in essentially the same terms as was s 8A(1) of the TPD Act. Although s 252(2) of the PD Act now expressly permits an applicant to apply to the Tribunal for review of a responsible authority's decision under a local planning scheme as to the classification of a use under the scheme or the permissibility of a use that is not listed under the scheme, s 252(1) of the PD Act and s 29(1) of the SAT Act authorise the Tribunal to undertake a characterisation of a proposed development which is the subject of review proceedings for itself. As we observed in The Owners of Strata Plan 18449 and City of Joondalup at [23], 'it may be necessary in undertaking a review of the responsible authority's decision to refuse or to conditionally grant planning approval for the Tribunal to categorise the proposed development'. ...
In Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431 (Gull Petroleum), the Supreme Court held, at [52]:
... [E]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. ...
In Maryland Development Co Pty Ltd v Penrith City Council & Anor [2001] NSWLEC 135 at [92], Sheahan J, in discussing characterisation of use, stated:
Questions of characterisation involve subjective views as to matters of fact and degree: Shire of Perth v O'Keefe (1963) 110 CLR 529; 10 LGRA 147 [O'Keefe]. I surveyed the authorities on characterisation of DAs in University of Sydney v South Sydney Council (1998) 97 LGERA 186 at 200209 and concluded (at 214215):
'What is required is not "precise cataloguing" (Kitto J in O'Keefe), but a "detailed examination of the facts" to construe the purpose "broadly" and "liberally" without "confining the user to precise activity" in the town planning context. (Kirby P in North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50; 67 LGRA 344).
The Court must examine the "character, extent and other features" of the proposal (Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404) [O'Donnell] and determine its "appropriate genus" (Kirby P in Boyts Radio and Steedman v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562; 80 LGERA 323) and whether other aspects of the proposal might best and/or fairly be regarded as species of that genus (Friends of Pryor Park Inc v Ryde City Council (1995) 89 LGERA 6) [Pryor Park].
The law does not require me to "force fit" the proposal into any of the models defined in Foodbarn Pty Ltd v SolicitorGeneral (1975) 32 LGRA 157, O'Donnell or Pryor Park. Questions of fact and degree are "inescapably involved" and characterisations will always be "partly impressionistic" (Penrith). Where more than one use is involved in a proposal the primary consideration is the relationship between/among them, beyond their shared use of the subject site (Bob Blakemore Pty Ltd v Anson Bay Co (Australia) Pty Ltd (unreported, Court of Appeal, NSW, Clarke JA, 23 March 1990)).
... '
In the present case, to characterise the proposed use one must look at the entire use/operation proposed not just one factor.
It is clear there is breeding involved as defined by The Shorter Oxford Dictionary (5th ed, 2002) which defines breeding as ' ... bringing to birth; hatching; the production of young, reproduction ... '.
However, when one examines the entire proposal, although breeding is one facet of the operation, it is not the only one. There will also be the rearing, albeit shortterm, in the racks and feedlot system for the one to three weeks before the third element of euthanising is carried out and, finally, a fourth being the freezing of the euthanised animals.
The overall purpose of the use/operation is stated by the applicant to be the supply of pet meat to the pet industry and all four components of the operation outlined above are involved.
It is incorrect therefore, in the Tribunal's opinion, to classify such a use based solely on one of the four components.
From an examination of the other land use definitions within TPS 4, no single definition appears to properly cover the proposed use and it would therefore properly fall to be considered as a 'Use Not Listed' under cl 4.4.2 of TPS 4.
However, it could also be classified as a 'Home Business' if it met the criteria set out in that definition, which the applicant contends it does.
Conclusion
For the purposes of deciding the preliminary issue, the Tribunal is not required to consider whether planning approval should be granted, but merely whether the proposed use should be classified as falling within the land use definition of 'Animal Establishment' in TPS 4.
For the reasons outlined above, the Tribunal finds that the proposed use should not be classified as falling within the land use definition of 'Animal Establishment' in TPS 4.
Orders
1.The question put to the Tribunal as a preliminary issue is answered in the negative and the use/operation proposed by the applicant should not be classified as 'Animal Establishment' under the City of Armadale Town Planning Scheme No 4.
2.Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) the respondent is invited to reconsider its decision.
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER
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