LA ROSA and CITY OF WANNEROO
[2017] WASAT 143
•13 NOVEMBER 2017
LA ROSA and CITY OF WANNEROO [2017] WASAT 143
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 143 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:6/2017 | 31 AUGUST 2017 | |
| Coram: | MS M CONNOR (MEMBER) | 13/11/17 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | GIUSEPPI LA ROSA ROSINA LA ROSA CITY OF WANNEROO |
Catchwords: | Town planning Development application Commercial vehicle parking Characterisation of use Whether proposal is merely an incidental aspect of the residential use or a distinct and separate use Whether proposal capable of approval |
Legislation: | City of Wanneroo District Planning Scheme No 2, cl 1.9.3, cl 4.2, cl 3.18, cl 4.23, cl 4.23(2), cl 4.23.2(a), cl 4.23.6, Sch 1, Sch 10, Table 1 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004 (WA), s 31, s 31(2)(c) State Planning Policy 3.1 - Residential Design Codes |
Case References: | AAD Design Pty Ltd v Brisbane City Council [2011] QPEC 54 Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1999] VSC 269 in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 Rackemann DCJ in Yu v Brisbane City Council [2005] QPEC 78; [2006] QPELR 102 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent is affirmed. |
Summary | Mr Giuseppi La Rosa and Mrs Rosina La Rosa (applicants) applied to the Tribunal for review of a decision of the City of Wanneroo to refuse to grant retrospective development approval for the parking of 15 commercial vehicles and the placement of two sea containers on Lot 158 (No 44) Bebich Drive, Wanneroo.,As a part of the mediation process the applicants revised their proposal, reducing the number of commercial vehicles to a total of five. Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the City of Wanneroo reconsidered its decision and granted approval to the placement of two sea containers on Lot 158 Bebich Drive, Wanneroo and resolved not to approve the commercial vehicle parking.,A threshold issue arose for determination concerning the interpretation and application of the provisions of the City of Wanneroo District Planning Scheme No 2 (DPS 2) and the proper characterisation of the proposed use.,The question before the Tribunal was whether the proposal as contemplated by the applicants was merely an incidental aspect of the residential use of the subject land or a distinct and separate use.,The Tribunal found that the proposal was not an incidental aspect of the residential use and the proper classification of the proposed use under DPS 2 was 'transport deport'. Therefore, it was not open to the Tribunal to approve the proposal as the use was prohibited under two provisions of the town planning scheme. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LA ROSA and CITY OF WANNEROO [2017] WASAT 143 MEMBER : MS M CONNOR (MEMBER) HEARD : 31 AUGUST 2017 DELIVERED : 13 NOVEMBER 2017 FILE NO/S : DR 6 of 2017 BETWEEN : GIUSEPPI LA ROSA
- ROSINA LA ROSA
Applicants
AND
CITY OF WANNEROO
Respondent
Catchwords:
Town planning - Development application - Commercial vehicle parking - Characterisation of use - Whether proposal is merely an incidental aspect of the residential use or a distinct and separate use - Whether proposal capable of approval
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 1.9.3, cl 4.2, cl 3.18, cl 4.23, cl 4.23(2), cl 4.23.2(a), cl 4.23.6, Sch 1, Sch 10, Table 1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31, s 31(2)(c)
State Planning Policy 3.1 - Residential Design Codes
Result:
Application for review dismissed
Summary of Tribunal's decision:
Mr Giuseppi La Rosa and Mrs Rosina La Rosa (applicants) applied to the Tribunal for review of a decision of the City of Wanneroo to refuse to grant retrospective development approval for the parking of 15 commercial vehicles and the placement of two sea containers on Lot 158 (No 44) Bebich Drive, Wanneroo.
As a part of the mediation process the applicants revised their proposal, reducing the number of commercial vehicles to a total of five. Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the City of Wanneroo reconsidered its decision and granted approval to the placement of two sea containers on Lot 158 Bebich Drive, Wanneroo and resolved not to approve the commercial vehicle parking.
A threshold issue arose for determination concerning the interpretation and application of the provisions of the City of Wanneroo District Planning Scheme No2 (DPS 2) and the proper characterisation of the proposed use.
The question before the Tribunal was whether the proposal as contemplated by the applicants was merely an incidental aspect of the residential use of the subject land or a distinct and separate use.
The Tribunal found that the proposal was not an incidental aspect of the residential use and the proper classification of the proposed use under DPS 2 was 'transport deport'. Therefore, it was not open to the Tribunal to approve the proposal as the use was prohibited under two provisions of the town planning scheme.
Category: B
Representation:
Counsel:
Applicants : In Person
Respondent : Mr J Cappoli
Solicitors:
Applicants : N/A
Respondent : City of Wanneroo
Case(s) referred to in decision(s):
AAD Design Pty Ltd v Brisbane City Council [2011] QPEC 54
Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1999] VSC 269
in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211
Rackemann DCJ in Yu v Brisbane City Council [2005] QPEC 78; [2006] QPELR 102
Introduction
1 Giuseppe La Rosa made application to the City of Wanneroo (respondent, Council or City) for retrospective development approval for the parking of commercial vehicles and the placement of two sea containers on Lot 158 (No 44) Bebich Drive, Wanneroo (subject land).
2 The Council at its meeting of 6 December 2016 resolved to refuse to grant development approval for commercial vehicle parking and sea containers (retrospective) on the subject land for the following reasons:
1. Pursuant to Clause 68(2)(c) of the Deemed Provisions of District Planning Scheme No. 2, REFUSES to grant approval for the application for retrospective development approval for commercial vehicle parking and sea containers at Lot 158 (44) Bebich Drive, Wanneroo as shown in Attachment 2, for the following reasons:
a) The parking of commercial vehicles on the subject property (as applied for through this application for retrospective development approval) is considered by the City to be a 'Transport Depot', as defined in District Planning Scheme No. 2 as follows:
transport depot: means any land or building designed and used, or which is adapted for use for one or more of the following purposes:
a) for the parking or garaging of more than one commercial vehicle;
b) for the transfer of goods or passengers from one vehicle to another vehicle;
and may include the maintenance, mechanical repair or refuelling of the vehicle referred to in (a) or (b) above but does not include any of the functions defined under Smash Repair Station.
Under District Planning Scheme No 2, a Transport Depot is not permitted (or an 'X' use) in the Special Rural zone.
b) The parking of commercial vehicles on the subject property (as applied for through this application for retrospective development approval) is contrary to Special Provision (2) for Special Rural zone (07); as outlined in Schedule 10 of District Planning scheme No. 2 and as follows:
(2) The land the subject of this Zone may be used for residential and equestrian purposes only.
c) Insufficient information was provided for the sea containers subject to this application for retrospective development approval to allow for the appropriate assessment and ultimately any favourable determination concerning this development.
2. ENDORSES Administration's responses to the submissions as provided in Attachment 4;
3. NOTES that Administration will now, pursuant to the City's Local Planning Policy 4.14: Planning Compliance, recommence actions against the land owner of Lot 158 (44) Beach Drive, Wanneroo, necessary to bring this property into compliance with District Planning Scheme No 2; and
4. ADVISES the submitters and the applicant of this decision[.]
3 Giuseppe La Rosa and Rosina La Rosa (applicants), on 16 January 2017, made application under s 252 (1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
4 As part of the proceedings in this matter the parties engaged in mediation process which resulted in the applicants agreeing to modify the proposal, and as such, the Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), invited the respondent to reconsider its decision in light of the revised proposal.
5 On reconsideration of the matter at its meeting of 27 June 2017 the respondent, pursuant to s 31(2)(c) of the SAT Act, set aside the reviewable decision and substituted its new decision, which reads as follows:
…
2. Pursuant to Clause 68(2)(b) and Clause 73(c) of the City's District Planning Scheme No. 2 Deemed Provisions, APPROVE ONLY the sea containers component of the application referred to in item subject to the following conditions:
a) This approval pertains only to the sea containers, as shown on the plan included in Attachment 5 and Attachment 7. This approval does NOT permit commercial vehicle parking to occur on the subject land;
b) Stormwater and any other water run-off from the sea containers shall be collected and retained on site;
c) The sea containers shall only be used for purposes that are ancillary to the residential use of the property, and shall not be used for commercial or industrial purposes or for human habitation;
3. ADVISES the applicant that Council has resolved not to approve commercial vehicle parking on Lot 158 (44) Bebich Drive, Wanneroo, as the proposed commercial vehicle parking will have an adverse impact on the amenity of the area surrounding the subject land;
4. NOTES that Administration will, pursuant to the City's Local Planning Policy 4.14: Compliance, continue to undertake necessary and appropriate actions to bring development and land use on [Lot] 158 (44) Bebich Drive, Wanneroo into compliance with the City's District Planning Scheme No. 2; and
5. ADVISES the State Administrative Tribunal, the applicant and the submitters this of this decision.
6 It was agreed by the parties that as a result of the respondent's approval of the sea containers at its meeting of 27 June 2017, the remaining component of the application to be determined by the Tribunal is the commercial vehicle parking as modified by the applicants through the mediation process.
Subject land
7 The subject land comprises Lot 158 (No 44) Bebich Drive, Wanneroo and has a total land area of 1.0086 hectares in area.
8 The subject land currently contains the following improvements:
• a brick and tile residence;
• a shed, situated in proximity to the southwestern corner of the subject land;
• two sea containers, situated in proximity to the shed;
• a hardstand area (constructed with crushed limestone and rock) at the rear of the property. This hardstand area is connected to Bebich Drive by a driveway constructed of the same materials, situated adjoining the eastern side of the subject land; and
• a portable structure, located immediately behind the brick and tile residence.
The proposal
9 The original application submitted by the applicants to the City involved retrospective approval for the parking of 15 commercial vehicles (five trucks, five dollies and five trailers) and two sea containers located at the rear of the subject land.
10 As a result of mediation, the proposal was modified and Mr La Rosa in his witness statement stated that he now sought approval 'to park (1) Truck/Primemover, 2 Dolly's [sic] and (2) Low loader trailers, which totals 5 Commercial Vehicles'. At the commencement of the hearing Mr La Rosa confirmed that he sought approval to park five commercial vehicles on the subject land but that the combination of vehicles comprised of two prime movers, two trailers and one dolly. (T:11:42:20).
11 Mr La Rosa, in his oral evidence, confirmed the following details in respect to the proposed commercial vehicle parking:
• He will be the only person operating the vehicles;
• The commercial vehicles will be parked on the existing hardstand and utilise the existing driveway. There is no intention to alter the existing hardstand or remove any vegetation;
• Liquid fuels will not be stored on-site;
• Vehicle movements will generally be entering and exiting the subject land westward (via Bebich Drive and Lenore Road). However there may be occasions where vehicles will enter or exit the subject property viaBenmuni Road;
• Vehicles will not be operating on-site from 10 pm to 6 am and will not be left running in excess of five minutes; and
• There will be no loading and unloading of commercial vehicles or transfer of goods and passengers from one commercial vehicle to another occurring on site.
12 In respect to vehicle combination lengths, Mr La Rosa told the Tribunal that the prime mover is 8 metres in length; the prime mover/dolly combination is approximately 12 metres in length; the prime mover/trailer combination is 20 metres in length; the trailer/dolly combination is 20 metres in length; and the prime mover/trailer/dolly combination is 24.5 metres in length.
Issues
13 The Tribunal, at the commencement of the hearing, informed the parties that there was a legal issue concerning the interpretation and application of the local town planning scheme provisions in respect to the characterisation of the proposed development and that this issue could be determinative of the application. The Tribunal offered to adjourn the proceedings so that the parties could seek legal advice, but both parties declined the opportunity and indicated that they preferred to press on with the final hearing and for the Tribunal to determine the statutory interpretation issue.
14 The subject land is zoned 'Rural' in the Metropolitan Region Scheme and 'Special Rural' under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme). Clause 3.18 of the Scheme sets out the intent, objectives and general provisions of the Scheme that apply to land zoned Special Rural.
15 The intent of the Special Rural zone is:
[T]o accommodate rural-residential retreats on lots generally ranging between one and four hectares in size. In some cases, agricultural uses are also intended to be accommodated. All development in the Special Rural Zone shall be conducted in a manner that preserves local amenity and the natural landscape or rural character of the zone concerned. (cl 3.18.1)
16 The objectives of the Special rural zone are to:
(a) designate areas where rural-residential retreats can be accommodated without detriment to the environment or the rural character;
(b) meet the demand for a rural lifestyle on small rural lots generally ranging from one to four hectares in size;
(c) maintain and enhance the rural character and amenity of the locality. (cl3.18.2)
17 The relevant general provisions applicable to the Special Rural zone are specified in cl 3.18.3 of the Scheme. Cl 3.18.4 of the Scheme provides for the inclusion of Special Provisions relating to individual Special Rural zones, which are set out in Schedule 10 Special Rural Provisions (Sch 10) of the Scheme. Where there is any conflict between the Special provisions and the General provisions of the Scheme, the Special provisions prevail. In addition, the Special provisions, amongst other things, are required to specify the following matters:
a) Proposals for the control of land uses and development which will ensure that the objectives of the zone are secured and the rural environment and amenities are not impaired;
b) Any stipulation or requirement the owner of the land must satisfy pursuant to any agreement between the owner and the Local government;
c) Without limiting the generality of subclause 3.18.3, any other obligation of the owner relevant to the subdivision, development or use of the land.
18 Further, cl 3.18.5 states that '[n]otwithstanding any other provision of the Scheme, in the case of any conflict between the special provisions relating to individual Special Rural Zones and Table 1, the special provisions shall prevail'.
19 The subject land is located in SR7 in Sch 10 of the Scheme. Clause 2) and clause 4) of the Special provisions of SR7 relate to the controls of land uses and development within the area and specify:
2) The land the subject of this Zone may be used for residential and equestrian purposes only.
...
4) The keeping of livestock and poultry for commercial purposes is prohibited.
20 The most relevant definition of the adverb 'only' in the Macquarie Dictionary (6th ed, 2013) at page 1028 is as follows:
5. exclusively.
21 The identification of specific land uses in SR7 is consistent with subclause 3.18.4 a) of the Scheme. The use of the word 'only' avoids any doubt and established the exclusivity of the specified land uses.
22 The tension between clause 2 of the special provisions and Table 1 Zoning Table (Table 1), which incorporates the Special Rural zone and designates permissibility of use classes within the Special Rural zone, is resolved by cl 3.18.5 of the Scheme which clearly establishes that clause 2 of the Special provisions prevails.
23 Consequently, the only land uses that can be approved in the SR7 area are residential and equestrian purposes.
24 The word 'residential' is not defined in DPS 2 or in State Planning Policy 3.1 Residential Design Codes (Codes). However, cl 1.9.3 of the Scheme states that a word or expression used in the Scheme, but not defined in the Scheme or the Codes, is to have its normal and common meaning. It is commonly accepted that 'residential' in a planning context relates to a residence, in which one resides permanently or for a considerable time: see Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1999] VSC 269. It is further accepted that a person who is entitled to use land for the purpose of a residence may use it for incidental purposes, such as garaging his car or housing his boat: Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211.
25 The Special provisions of SR7 do not purport to displace the incidental uses that may arise from the specified land uses, as this is clearly confirmed in Special provision 4) which expressly provides for the keeping of livestock and poultry for domestic purposes.
26 Clause 4.23 of the Scheme sets out the general provisions of the Scheme relating to the parking of commercial vehicles within the Scheme Area, and more specifically cl 4.23.2 provides for the parking of one commercial vehicle in the Special Rural zone. Clause 4.23.2(a) provides discretion enabling the local government to approve up to two commercial vehicles to be parked on a lot in the Special Rural zone. Clearly, the Scheme contemplates commercial vehicle parking as an incidental aspect of residential use. Therefore this provision is not inconsistent with the Special provisions of SR7.
27 Although cl 4.2 the Scheme contains a general discretion to vary site and development standards and requirements of the Scheme, cl 4.23.6 of the Scheme identifies specific subclauses of the commercial vehicle parking provisions where the local government may exercise discretion to vary a requirement provided that the variation will not adversely affect the amenity of the area surrounding the subject land.
28 On the proper interpretation of the Scheme, cl 4.23.6 applies to the exclusion of cl 4.2. As Gavan Duffy CJ and Dixon J held in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7:
...When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power[.]
29 Therefore, it is not correct to apply the general discretion to vary a development standard or a requirement of the Scheme to vary the number of commercial vehicles that may be permitted to be parked on a lot. If this is commercial vehicle parking, it is not possible to approve more than two commercial vehicles in the Special Rural zone because the only varying power allows 'up to two vehicles' and the general variation provision in cl 4.2 of the Scheme cannot be exercised.
30 In any event, the Tribunal is not satisfied that what is being proposed is properly characterised as commercial vehicle parking.
31 'Commercial vehicle' is defined in Sch 1 Interpretations (Sch 1) of the Scheme as follows:
means a vehicle whether licensed or not which is used or designed for use for business, trade or commercial purposes or in conjunction with a business, trade or profession and without limiting the generality of the foregoing includes any utility, van, truck, trailer, tractor and any wheeled attachment to any of them or any wheeled article designed to be an attachment to any of them, and any bus or omnibus or any earthmoving machine whether self-propelled or not. If a truck, prime mover or other vehicle is attached to a trailer, semi-trailer or any other attachment, each trailer, semi-trailer or other attachment is to be regarded as a separate commercial vehicle. A loaded combination, such as a bobcat, forklift or other vehicle or attachment loaded on a truck, trailer or other attachment is to be regarded as one commercial vehicle. The term shall not include a vehicle designed for use as a passenger car or any trailer or other thing most commonly used as an attachment to a passenger car, or a van, utility or light truck which is rated by the manufacturer as being suitable to carry loads of not more than 1.5 tonnes.
32 The applicants intend to park five commercial vehicles on the subject land and that the combination of vehicles comprised of two prime movers, two trailers and one dolly. At the hearing, it was established that there are other 'commercial vehicles' parked off-site that will be interchanged as part of the business operations and therefore, there was reluctance by Mr La Rosa to identify the particulars of each equipment to be parked on the subject land as he explained that 'it will depend on what equipment he is moving as to which piece of equipment [he] will be using.' (T11:49:04).
33 The question before the Tribunal is whether the proposal to park five commercial vehicles on the subject land as contemplated by the applicants is merely an incidental aspect of the residential use of the subject land or a distinct and separate use. The relevant task of a planning court or tribunal in this regard has been described by Rackemann DCJ in Yu v Brisbane City Council [2005] QPEC 78; [2006] QPELR 102 at [16] (internal citations omitted) as follows:
In determining the description which is applicable, the Court must undertake its task of characterisation in a practical and common sense way to determine the appropriate genus which best describes the activities in question. Where there are two or more defined purposes which are apt to cover a particular proposal, a 'best fit' approach is appropriate. What must be characterised is the proposal the subject of the application, rather than some further or other application which might be made at another time.
34 Characterisation of a use 'naturally involves an analysis of the factual circumstances surrounding a proposal'. This is no narrow inquiry: see AAD Design Pty Ltd v Brisbane City Council [2011] QPEC 54 at [21].
35 It is clear from his evidence that Mr La Rosa is operating a haulage business from the subject land. Other than Mr La Rosa residing at the property there is nothing to suggest that the commercial vehicle parking arises from the residential use of the land. In having regard to the regularity and extent of the activities, the proposal cannot be regarded as merely incidental to the use of the land for residential purposes. It is a distinct and separate use and falls squarely within the definition of 'transport depot' as contained in Sch 1 which is defined as:
transport depot : means any land or building designed and used, or which is adapted for use for one or more of the following purposes:
(a) for the parking or garaging of more than one commercial vehicle;
(b) for the transfer of goods or passengers from one vehicle to another vehicle;
and may include the maintenance, mechanical repair or refuelling of the vehicles referred to in (a) or (b) above but does not include any of the functions defined under Smash Repair Station.
36 In Table 1 The Zoning Table (Table 1) of the Scheme the use class 'Transport Depot' is designated as an 'X' use in the Special Rural zone and is therefore a prohibited use, unless there are specific provisions in the Scheme approving such as use, which is not the case in this instance.
37 It is not open to the Tribunal to approve the proposal as the use is prohibited under two provisions of the Scheme. Firstly, all uses other than residential or equestrian uses are prohibited in the SR7 area and as the proposal cannot be considered to be incidental to either of those uses it is a prohibited use in the SR7 area and secondly, the characteristics of the proposed use falls within the definition of a transport depot, which is a prohibited use in the Special Rural zone.
38 Mr La Rosa raised with the Tribunal that the respondent had approved other similar proposals in the immediate locality, and specifically identified a property situated approximately 800 metres from the subject land within the SR7 area that had been granted approval for the parking of five commercial vehicles. Notwithstanding, the respondent may have issued planning approval for a comparable proposal in similar circumstances, this is not an issue of consistency of decisionmaking because the Tribunal is not able to approve this proposal under the current Scheme. Whether the example pointed to was validly approval under the then planning framework is not before the Tribunal. The Tribunal understands that Mr La Rosa may be aggrieved but this is not an issue for the Tribunal, but perhaps another forum if Mr La Rosa wishes to pursue the matter.
39 Given the conclusions the Tribunal has come to, it is not necessary to consider the merits of the proposal, however, the Tribunal is of the view the proposal would not be approval as the scale of the development applied for is inconsistent with the intent and objectives of the Special Rural zone and would adversely impact on the amenity of the locality and the rural character of the SR7 area.
Orders
For the above reasons, the Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent is affirmed.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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