LA ROSA and CITY OF WANNEROO [2017] WASAT 143

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 143
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:6/2017	Heard:	31 AUGUST 2017
Coram:	MS M CONNOR (MEMBER)	Delivered:	13/11/17
No of pages:	14	Judgment Part:	1 of 1
Result:	Application for review dismissed
Category:	B
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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 :

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.

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Details

AGLC: La Rosa and City Of Wanneroo [2017] WASAT 143
Case: [2017] WASAT 143
Decision Date: 13 NOVEMBER 2017

CaseChat Overview and Summary

The case involved LA ROSA, an applicant, and the City of Wanneroo, the respondent. The dispute centred around a development application concerning the use of a property for commercial vehicle parking. The application was reviewed by the Land and Environment Court of Western Australia. The applicant sought to use the property for commercial vehicle parking, which the City of Wanneroo opposed, arguing that the proposal did not align with the approved residential use of the property. The central legal issues were whether the proposal was merely an incidental aspect of the residential use or a distinct and separate use, and whether the proposal was capable of approval.

The court examined the nature and purpose of the proposed use, considering the broader context of the property's intended residential use. It assessed whether the commercial vehicle parking was an integral part of the residential development or a separate commercial activity. The court also considered the potential impact of the proposed use on the surrounding area and the consistency of the proposal with the approved planning scheme and local laws. The court concluded that the proposed use was a distinct and separate activity from the residential use, and it was not incidental to the residential purpose. As such, the proposal did not align with the approved use of the property. Given these findings, the court determined that the proposal was not capable of approval under the existing planning framework.

In light of the above, the court dismissed the application for review. The decision upheld the City of Wanneroo's opposition to the development application, reinforcing the need for proposed uses to align with the approved purposes of the property. The dismissal of the application meant that the proposed commercial vehicle parking could not proceed as it conflicted with the residential zoning of the property.

Orders

Orders of the court

Application for review dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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