Kellett and Town Of Vincent

[2007] WASAT 155

KELLETT and TOWN OF VINCENT [2007] WASAT 155

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 155
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:166/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	JUSTICE M L BARKER (PRESIDENT)	Delivered:	20/06/07
No of pages:	9	Judgment Part:	1 of 1
Result:	Application for review allowed in part Determination of Tribunal in Kellett and Town of Vincent [2007] WASAT 62 varied by limiting restriction on hours to the new treatment room and allowing operation to 9 pm on Tuesday and Thursday
Category:	B
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Parties:	DEAN RICHARD KELLETT TOWN OF VINCENT
Catchwords:	Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 Tribunal granted conditional development approval for alterations and additions to existing beauty salon involving creation of one additional treatment room Existing development approval for beauty salon does not restrict hours of operation Development approval for alterations and additions granted by Tribunal subject to condition restricting hours of operation Whether Tribunal erred in law in its determination to impose condition Failure to give reasons Whether condition for a planning purpose Whether condition fairly and reasonably relates to the permitted development Whether condition unreasonable
Legislation:	Planning and Development Act 2005 (WA), s 244, s 244(1), s 244(3) State Administrative Tribunal Act 2004 (WA), s 3(1), s 77, s 83 Town of Vincent Town Planning Scheme No 1
Case References:	Kellett and Town of Vincent [2007] WASAT 62 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
Orders	1. The application for review is allowed in part.,2. The decision of the Tribunal in Kellett and Town of Vincent [2007] WASAT 62 to impose condition (i) is revoked and a decision is made to impose the following condition in its place:,"(i) The hours of operation of the new treatment room shall be limited to the following times:,9.00 am to 5.30 pm on Monday, Wednesday and Friday;,9.00 am to 9.00 pm on Tuesday and Thursday;,8.00 am to 3.00 pm on Saturday; and,Closed on Sundays and Public Holidays."

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KELLETT and TOWN OF VINCENT [2007] WASAT 155 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 20 JUNE 2007 FILE NO/S : DR 166 of 2007 BETWEEN : DEAN RICHARD KELLETT

Applicant

AND

TOWN OF VINCENT
Respondent

Catchwords:

Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 - Tribunal granted conditional development approval for alterations and additions to existing beauty salon involving creation of one additional treatment room - Existing development approval for beauty salon does not restrict hours of operation - Development approval for alterations and additions granted by Tribunal subject to condition restricting hours of operation - Whether Tribunal erred in law in its determination to impose condition - Failure to give reasons - Whether condition for a planning purpose - Whether condition fairly and reasonably relates to the permitted development - Whether condition unreasonable

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Legislation:

Planning and Development Act 2005 (WA), s 244, s 244(1), s 244(3)

State Administrative Tribunal Act 2004 (WA), s 3(1), s 77, s 83
Town of Vincent Town Planning Scheme No 1

Result:

Application for review allowed in part

Determination of Tribunal in Kellett and Town of Vincent [2007] WASAT 62 varied by limiting restriction on hours to the new treatment room and allowing operation to 9 pm on Tuesday and Thursday

Category: B

Representation:

Counsel:

Applicant : Mr SJ Bain (Acting as Agent)
Respondent : Mr Rasaratnam Rasiah (Public Sector Employee)

Solicitors:

Applicant : SJB Planning and Urban Design (Town Planners)
Respondent : Town of Vincent

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

Kellett and Town of Vincent [2007] WASAT 62
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The Tribunal granted conditional development approval for alterations and additions to an existing beauty salon which involved an increase in the number of treatment rooms from nine to 10. One of the conditions imposed by the Tribunal restricted hours of operation of the beauty salon. This condition had been objected to by the applicant on the basis that it was unrelated to the application and was onerous. The Tribunal did not address the applicant's objection in its reasons. The applicant sought review by the President of the imposition of the condition.

2 The President determined that the Tribunal erred in law in failing to give reasons as to why it imposed the condition, given that it was objected to by the applicant. The President also determined that the Tribunal erred in law in imposing the condition on the operation of the existing beauty salon. The condition was manifestly unreasonable because the Town of Vincent had itself granted development approval for the existing beauty salon in 2004 without imposing a condition restricting its hours of operation. A condition restricting the hours of operation of the existing beauty salon could not be lawfully imposed on the granting of approval for alterations and additions to the premises in the circumstances of this case.

3 However, the President determined that a condition restricting the hours of operation of the new treatment room could be lawfully imposed and was reasonable and appropriate.

4 The application for review was allowed in part and the decision of the Tribunal was varied to restrict the hours of operation of the new treatment room only.

Introduction

5 These proceedings involve an application brought by Mr Dean Kellet, pursuant to s 244 of the Planning and Development Act 2005 (WA) (PD Act), for a review by the President of the decision of the Tribunal in Kellett and Town of Vincent [2007] WASAT 62 to impose a condition restricting the hours of operation of a beauty salon.

6 The Tribunal (Mr Graham, Senior Sessional Member) allowed Mr Kellett's application for review of the decision of the Town of Vincent (Town) to refuse development approval for alterations and additions to an

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existing beauty salon at the corner of Charles Street and Mabel Street, North Perth (site) and granted conditional development approval.

7 Condition (i) (as subsequently varied by the Tribunal pursuant to s 83 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to rectify a clerical mistake) states as follows:

"The hours of operation shall be limited to the following times:

9.00 am to 5.30 pm on Monday, Wednesday and Friday;


9.00 am to 7.30 pm on Tuesday;
9.00 am to 7.30 pm on Thursday;
8.00 am to 3.00 pm on Saturday; and
Closed on Sundays and Public Holidays."

8 Mr Kellett seeks review by the President of these hours of operation specifically in relation to Tuesday and Thursday.

Application and grounds for review by President

9 Section 244(1) of the PD Act provides that the Tribunal constituted by the President may, of its own motion or upon an application made under sub-section (3), review a direction, determination or order upon a "matter involving a question of law" that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the SAT Act. Mr Graham is not a legally qualified member as defined in s 3(1) of the SAT Act. The application for review of the determination was made by Mr Kellett in accordance with s 244(3) of the PD Act within one month of the determination.

10 Mr Kellett's grounds for review are as follows:

"• The application was for alterations and additions to the existing building and not for altering the hours of operation or the nature of the business. The condition therefore does not relate to the proposed development;

• The owners currently have no time restrictions imposed on their operation, as evidenced in the previous approval granted by the Town of Vincent (copy provided at the Hearing);

• The owners currently operate until 9.00 pm on Tuesdays and Thursdays and given this there is no extra impact on the amenity of the surrounding locality;

(Page 5)

• The overall development results in an improvement to the amenity of the locality by enhancing a degraded building and rationalising the car parking."

11 The Town's response to these grounds is as follows:

"• As previously advised in the Town's letter to the Tribunal dated 4 January 2007 ... the above hours are similar [to the] hours of operation the applicant had advised the Town in correspondence to the Town dated 13 June 2004 ... as part of the original planning application, which was approved by the Council at its Ordinary Meeting held on 14 September 2004.

• The subject site and the surrounding property is zoned 'Residential', under the Town of Vincent Town Planning Scheme No 1. The Town is of the view that the increase in the hours of operation of the above commercial activity will result in an undue impact on the amenity of surrounding residents and the community at large.

• While it is acknowledged that the application was for alterations and for additions to the existing building and not for altering the hours of operation or the nature of the business, the imposition of the operating hours is still pertinent to the proposed development on planning grounds.

• If the use was to be within a shopping centre or similar context, then there is merit on planning and amenity considerations that the increased hours of operation would be considered reasonable. As such it is reiterated that the above hours of operation approved by the Tribunal above is reasonable, considering its increased intensity and undue impact on car parking in the immediate area. It is therefore respectfully requested that the Tribunal dismiss the review for the reconsideration of extended operating hours for Tuesday and Thursday."

How the condition as to hours of operation came to be imposed

12 On 24 November 2006, the Town filed a set of draft "without prejudice" conditions of approval which it contended should be imposed in the event the Tribunal ultimately determined to grant conditional

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development approval, in accordance with the Tribunal's orders. The Town's draft conditions included the condition set out at [7] above restricting the hours of operation of the beauty salon.

13 Following the final hearing on 7 December 2006, Senior Sessional Member Graham reserved his decision and ordered Mr Kellett to file and give to the Town, on or before 14 December 2006, a document which identified any of the draft conditions proposed by the Town which he objected to with brief reasons for any objection. On 12 December 2006, the Tribunal received a facsimile indicating that Mr Kellett could not comply with the Tribunal's order, because he had undergone a major operation the previous day, and that compliance with the order was anticipated by 19 December 2006.

14 On 19 December 2006, Mr Simon Bain, a town planner who represented and gave evidence on behalf of Mr Kellett in the proceedings, filed a response to the Town's conditions in which he said that the condition concerning hours of operation is unacceptable for the following reasons:

"The previous approval imposed no conditions concerning hours, days of operation. The application was for alterations and additions to the building with no increase in floor space. The condition is therefore un-related to the application and is considered onerous as imposes extra restrictions on the business.

In addition, the nature of the business is that it provides a service to clients who normally work during the day. The proposed hours of operation in the draft conditions would prevent this part of the service being continued."

15 The Member then decided, in allowing the review application, to adopt the Town's suggested restricted hours of operation, even though the existing planning approval did not specify such hours of operation.

Tribunal's failure to give reasons

16 The Tribunal erred in law in failing to give reasons for its decision to impose condition (i), given that the condition was objected to by Mr Kellett.

17 Section 77 of the SAT Act states as follows:

"(1) The Tribunal is to give its reasons for a final decision.

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(2) Reasons that the Tribunal gives for a final decision have to include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based."

18 Given that the Town's proposed condition concerning hours of operation was objected to by Mr Kellett, the decision as to whether to impose this condition was relevantly a material question of law and fact. The objection raised a legal question whether the condition could be lawfully imposed, because the condition was said to be "un-related to the application". It was incumbent on the Senior Sessional Member to address Mr Kellett's legal and factual objections to the proposed condition. He erred in law for failing to do so.

Review of the condition

19 In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57], McHugh J in the High Court of Australia endorsed the tests for the validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 in the following terms:

"A condition attached to a grant of planning permission will not be valid therefore unless:

(1) The condition is for a planning purpose and not for any ulterior purpose. ...

(2) The condition reasonably and fairly relates to the development permitted.

(3) The condition is not so unreasonable that no reasonable planning authority could have imposed it."

20 While it might be said that the condition restricting the hours of operation of the beauty salon imposed by the Tribunal satisfies the first requirement, it arguably does not satisfy the second requirement and certainly not, in my view, the third requirement.

21 Although the condition as to hours of operation may have a planning purpose, because the beauty salon is in a predominantly residential area, it arguably does not fairly and reasonably relate to the development permitted by the Tribunal, because the existing treatment rooms are not the subject of the development application for alterations and additions

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and already have development approval. The applicant was entitled in the circumstances to confine his application to approval of the extension without bringing into question the fact and terms of his existing use approval. In the circumstances, the nature of the development proposed did not provide the occasion to alter the existing hours of operation of the salon.

22 I also consider that the condition is so unreasonable that no reasonable planning authority could have imposed it, insofar as it restricts the hours of operation of the existing beauty salon. As the Town points out in its response to the grounds of review (see [11]), the hours imposed by the Tribunal were similar to the hours advised by the applicant to the Town when the applicant applied for development approval for the beauty salon (which had already been operation for 12 years) in 2004. However, the Town granted the applicant a development approval for the beauty salon that is unrestricted in relation to hours of operation. The permitted development added one new treatment room to the existing approved nine treatment rooms. To use that fact to justify the imposition of a condition restricting the hours of operation of the beauty salon as a whole is unreasonable in the relevant legal sense.

Conclusion

23 Senior Sessional Member Graham erred in law in failing to give reasons for his decision to impose the condition restricting hours of operation, given that the condition was opposed by Mr Kellett. Senior Sessional Member Graham also erred in law in imposing a condition restricting hours of operation of the existing beauty salon, given that the nine existing treatment rooms were not the subject of the development application for alteration and additions and had been granted development approval by the Town without restricting hours.

24 The Senior Sessional Member's decision to impose the condition in question should be revoked and a decision should be substituted imposing a condition restricting the hours of operation of the new treatment room to the current hours of the beauty salon. This condition is for the planning purpose of mitigating adverse impacts on residential amenity, reasonably and fairly relates to the development permitted and is not so unreasonable that no reasonable planning authority could have imposed it. It is also a reasonable and appropriate condition for a commercial use in a predominantly residential area.

25 It follows that the application for review by the President should be allowed in part, the decision to impose condition (i) should be revoked

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and a decision should be substituted imposing a condition restricting the hours of operation of the new treatment room to current hours of operation of the beauty salon.

Orders

26 The Tribunal makes the following orders:

1. The application for review is allowed in part.

2. The decision of the Tribunal in Kellett and Town of Vincent [2007] WASAT 62 to impose condition (i) is revoked and a decision is made to impose the following condition in its place:


"(i) The hours of operation of the new treatment room shall be limited to the following times:

9.00 am to 5.30 pm on Monday, Wednesday and Friday;
9.00 am to 9.00 pm on Tuesday and Thursday;
8.00 am to 3.00 pm on Saturday; and
Closed on Sundays and Public Holidays."

I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE M L BARKER, PRESIDENT