JECZMIONKA and CITY OF ARMADALE - [2011] WASAT 12

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JECZMIONKA and CITY OF ARMADALE

Details

AGLC: JECZMIONKA and CITY OF ARMADALE [2011] WASAT 12
Case: [2011] WASAT 12
Decision Date: 27 JANUARY 2011

CaseChat Overview and Summary

The case of JECZMIONKA and CITY OF ARMADALE involved a dispute over the classification of a proposed animal establishment as a home business. The applicant sought to operate a business involving mice and rats, which they argued should be classified as a home business under the City of Armadale's town planning scheme. The City of Armadale argued that the proposed use did not fit the definition of 'Home Business' or 'Animal Husbandry - Intensive', and thus required a planning permit. The matter was heard in a local court in Western Australia.

The central legal issue before the court was whether the applicant's proposed use of the land for breeding, boarding, training, or caring of mice and rats for commercial purposes constituted a 'Home Business' or another use requiring a planning permit under the City of Armadale's town planning scheme. Specifically, the court had to determine whether the proposed use was permissible as a home business, or if it fell under another land use category such as 'Animal Husbandry - Intensive' or 'Animal Establishment', which would require a planning permit.

The court found that the proposed use did not fit the definition of 'Animal Husbandry - Intensive' as it did not involve livestock such as pigs, poultry, or rabbits kept in a feedlot. The court also determined that the proposed use did not fit the definition of 'Animal Establishment', as it did not involve breeding, boarding, training, or caring of animals for commercial purposes. Instead, the court concluded that the proposed use was best described as a 'Home Business', given its operation, scale, and production similar to husbandry uses. The court found that the applicant's proposed use complied with the relevant development standards and requirements of the Scheme, and thus did not require a planning permit.

The court's final orders were that the applicant's proposed use of the land for breeding, boarding, training, or caring of mice and rats for commercial purposes was permissible as a home business under the City of Armadale's town planning scheme. The court granted the applicant's application for a determination that the proposed use was a 'Home Business' and did not require a planning permit.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 ConsiderationsThe following rationale provides further support in favour of the proposed home business:4.1ZoningThe subject land is zoned 'Rural Living 2' under the Local Scheme, as are all adjoining lots4.2Land Use PermissibilityUnder 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; andf)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)