Le SELOIVRE Pty Ltd and City Of Stirling
[2007] WASAT 249
•26 SEPTEMBER 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: LE SELOIVRE PTY LTD and CITY OF STIRLING [2007] WASAT 249
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 26 SEPTEMBER 2007
FILE NO/S: DR 477 of 2006
BETWEEN: LE SELOIVRE PTY LTD
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning Application for approval to commence development Milk distribution business, caretaker's residence and cold store Time limited approval Use not listed Reconsideration of the matter
Legislation:
City of Stirling District Planning Scheme No 2, cl 1.3.2.5, cl 1.3.5.1(i), cl 1.3.5.3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant: Mr G Lacerenza
Respondent: Mr A Roberts
Solicitors:
Applicant: GA Lacerenza & Associates (Barristers and Solicitors)
Respondent: McLeods
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the City of Stirling to refuse an application to continue a milk distribution business, comprising an office, caretaker's residence and cold store, at 51 Railway Parade, Mount Lawley.
The Tribunal examined the respective arguments of the parties, the operation of the existing business, the background to the matter and the substance of objections against the existing use.
The Tribunal determined that the decision of the City to impose a "time limited" approval, following a reconsideration of the matter, was appropriate as it allowed the respondent to review the use of the premises after 12 months, and allowed the applicant sufficient time to prove adherence to the conditions of the approval.
The application for review was dismissed.
Introduction
The application for review, dated 21 December 2006, was lodged by Mr Mark Selover on behalf of Le Seloivre Pty Ltd (applicant) against a decision of the City of Stirling (respondent) on 23 November 2006 to refuse the continued use of a milk distribution business comprising an office, caretaker's residence and cold store at 51 Railway Parade, Mount Lawley.
The application was lodged under the provisions of s 252(1) of the Planning and Development Act 2005 (WA)(PD Act).
On 15 March 2007 the Tribunal invited the respondent to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) and it did so at an Ordinary Meeting of Council on 19 June 2007.
At that meeting a modified application was approved for a twelve (12) month period, subject to review, and subject to conditions.
As explained in the applicant's submissions of 8 August 2007, a limited 12 month approval is unsatisfactory, and it is this matter only that now requires resolution by the Tribunal. This was made clear in the orders of Member Spillane on 5 July 2007.
The subject land and legislative framework
The subject land can be described as Lot 92 (Strata Lot 1) HN 51 Railway Parade, Mount Lawley. It has a site area of 665 square metres and can be accessed from a rear right‑of‑way (Challen Lane).
The premises operate as an office at the front of the building and there is a caretaker's residence within the overall structure at the rear.
The subject land is zoned "urban" in the Metropolitan Region Scheme (MRS) and "restricted business" in the City of Stirling District Town Planning Scheme No 2 (TPS 2).
Respondent's position
The position of the respondent is outlined in the "Respondent's Submissions" of 27 July 2007. The submissions explain:
(a)Clause 1.3.5.1(i) of TPS 2 empowers the respondent to limit the time for which an approval to commence development remains valid.
(b)The applicant opposes a "time limited" approval because it is endeavouring to sell the business operating from the subject land. The commercial interests of the applicant are not a relevant planning consideration.
(c)The purpose of the "time limited" approval is to allow the respondent time to ensure that all conditions are adhered to by the applicant without incident.
(d)Condition (iv) of the respondent's approval prevents the use of an existing storage shed on the subject land from being used to store products such as cartons of juice, soy milk, ginger beer, iced tea etc. The circumstances giving rise to the need for the conditions is that the applicant's use of the shed to store such products has been an unlawful warehouse use under the provisions of the Scheme.
(e)It is appropriate that a "time limited" approval be granted to ensure that the subject premises are used in a lawful manner consistent with the approval given, and in a manner that does not continue a previous unlawful use.
Applicant's position
The position of the applicant is outlined in the "Submissions and Witness Statement of Mark Selover", dated 8 August 2007. The document argues:
(a)In the event that the business was to be sold, the office and office equipment would be provided to the new operator for the continuing use of the current lawful business.
(b)To place a 12 month life on the approval is only perpetrating the sort of anxieties that have existed since 2004.
(c)The business has been on the market for at least eighteen (18) months and has been difficult to sell.
(d)The respondent continues to describe the use of the premises as a milk distribution business. This is not an activity that is carried out on‑site.
(e)The restriction to not allow the existing storage shed to be used for the storage of cartons of juice, soy milk, ginger beer, iced tea etc is a restriction on a use that has been in place since 1988.
Planning issues
The principal planning issue is:
(a)Is a 12 months "time limited" approval fair and reasonable in the circumstances of this case?
Assessment of proposal
The business operation
The operation of the business is described in the appellant's submissions.
(a)The business operates as Perth City Milk Supply and is under contract to National Foods Limited (NFL) which is a national milk distribution company. That company owns the Masters Milk labels and various other fruit juice and other drink national brands.
(b)The applicant delivers milk on behalf of NFL to supermarkets, delicatessens, cafes, lunch bars, hotels, motels, offices and other businesses and also to householders.
(c)Orders are received at the office between 8 am and 5 pm Monday to Friday from retail and household customers for preparations of bulk orders to suppliers for invoicing customers, payment and recruitment of staff and other general accounting/sales activities.
(d)When all orders are collated a larger order is placed with outside suppliers for collection prior to delivery from the NFL supplier warehouse in Balcatta.
(e)The vehicles owned by Perth City Milk collect the milk, as previously ordered from Balcatta, and deliver the product to clients.
(f)There are generally two delivery vehicles housed at the rear parking area of the office premises, where a metal gate with combination locks provides security. The vehicles are light commercial vans of less than 2‑tonne capacity.
(g)The vehicles leave from and return to the premises prior to and after deliveries and are most often empty.
(h)The collection and return of vehicles occurs quickly and is most often undertaken at the end of normal business hours in preparation for an overnight delivery shift. The vehicles return at the start of normal business hours.
(i)Goods are not collected from the Mount Lawley premises although on occasion there may be nominal amounts of excess, unwanted or errors in orders for delivery that return to Mount Lawley. The product is temporarily stored, at the end of an overnight shift, in a coldroom store at the rear of the premises.
(j)At the commencement of the next shift, any excess is returned to Balcatta. In all there would be less than half a dozen crates of milk that would be temporarily stored in the coldroom store.
(k)The caretaker's residence inside the office building has been installed as part of security measures to combat increasing incidences of break‑ins from the rear laneway, and to respond to late telephone and facsimile client orders.
Background
The background to the matter was outlined in documents before the Tribunal. They explain:
(a)In 1988 an approval was given for "office extensions" and a rear storage shed. A total of eight car bays were required at the rear with access from the existing ROW. The car bays were to be available for public use at all times.
(b)In June 2002 when the property was "under offer" the applicant consulted with the City and advised of the proposed purchase and change of use to include a caretaker's residence and temporary cold store. Although the proposal was advertised it appears that no formal development application was lodged.
(c)The property was purchased shortly after and the front room was partitioned into three offices. A kitchen, combined bathroom/laundry and toilet were installed as a caretaker's residence in the rear rooms.
(d)On 16 March 2005 the City advised the applicant, following earlier correspondence between the parties, that in view of the unauthorised land use (milk distribution business) that a formal development application was required.
(e)The application was duly lodged and was considered as a "use not listed" under the Scheme. It was advertised in accordance with cl 1.3.5.3 of TPS 2.
(f)A total of seven submissions (objections) were lodged but a temporary one year approval was issued on 29 August 2005, subject to conditions.
(g)A new application was lodged in 2006 to extend the approval and was considered by the Planning and Development Committee (PDC) of Council on 7 November 2006. In that report it summarised the applicant's argument on an extension to be:
"•The terms of the original 'approval' have been complied with;
•We now require that the approved use be continued for a further 12 months;
•It is anticipated that within the next 12 months the PCMS business will be sold and relocated …"
(h)The recommendation in the report was that the use should cease, and on 23 November 2006 the City issued its refusal.
(i)Following a reconsideration of the matter, as explained in [(7) and (8)] above, a modified application was approved on 19 June 2007. This approval was for a 12 month period, subject to review, and subject to the following conditions:
"1.No more than two commercial vehicles operating from the lot at any one time.
2.Any commercial vehicle used in connection with the business which attends the lot shall not exceed two tonnes tare weight.
3.The coolroom shall only be used for the temporary storage of small quantities (up to six crates) of milk which remain undelivered to customers of the business at the conclusion of deliveries conducted by the business during the day.
4.The existing storage shed (dry area) is not to be used for the storage of products such as cartons of juice, soy milk, ginger beer, iced tea etc.
5.No commercial vehicles entering the lot outside the hours of 7 am to 9 pm Monday to Saturday and 9 am to 9 pm on Sundays and public holidays.
6.When the milk distribution business ceases to operate from the lot then:
•the caretaker's residence shall be removed, and
•the storage shed and cold store shall cease to be used in connection with the business …"
The matter of objections
The range of objections was best outlined in a report to the PDC on 16 August 2005. These include:
(a)A preference for office use only or residential development on the subject land.
(b)The presence of large trucks is dangerous for young children in the area, creates noise and visual disturbance, obstructs the laneway and will cause significant deterioration to the laneway. The trucks are often parked in the free parking area on Railway Parade, opposite the office, causing parking problems and general unsightliness.
(c)The operators have shown no regard for the community.
(d)The business was established with no regard for good planning principles or surrounding residents.
(e)An approval could create a precedent and further erode planning by‑laws and reduce the quality of the area.
(f)Office activity has been observed from 6 am to 8 pm and during the night and weekends.
(g)Trucks have departed the premises from 10 pm to 2 am and return from 7 am to 9 am.
(h)Some trucks are over 5 tonne.
(i)Milk and related products are regularly delivered throughout the day in smaller vehicles.
(j)The cold store compressor runs noisily day and night.
(k)The rear security gates are usually left wide open for the trucks.
Conclusions
The application for review was lodged against a decision of the City of Stirling to refuse the continuing use of a milk distribution business, comprising an office, caretaker's residence and cold store, at 51 Railway Parade, Mount Lawley.
Following a reconsideration of the matter, the respondent resolved on 19 June 2007 to approve a modified proposal for a 12 month period, subject to review, and subject to conditions. It is this "time limited" approval that is unacceptable to the applicant.
The matter before the Tribunal is now confined to the question of whether a 12 month "time limited" approval is fair and reasonable in the circumstances of this case.
In undertaking the review the Tribunal has examined the respective arguments of the parties, the operation of the business, the background to the matter and the substance of objections against the existing use.
From an examination of the papers it is clear to the Tribunal that a temporary one‑year approval was granted on 29 August 2005. This approval expired on 29 August 2006.
In the 10 month period between 29 August 2006 and when the "time limited" approval was granted on 19 June 2007 there was, in effect, no valid approval in place but the use was allowed to continue.
It also appears from the officer's report to the PDC on 7 November 2006 that an earlier request had been made by the applicant that the use continue for a further 12 month period only. This point has not been disputed by the applicant, and an approval at that time would have concluded in November 2007.
It is clear from the papers that in November 2006 the applicant was expecting to sell the business within 12 months, and now seeks an open‑ended approval in order to achieve that objective.
On the matter of the current use, it has been assessed as a "use not listed" which is deemed by cl 1.3.2.5 of TPS 2 to be not permitted unless it is determined otherwise by the respondent. The respondent has determined otherwise and granted a "time limited" approval.
A further matter for consideration is the nature of the objections which principally relate to the associated truck movements within an essentially residential area. In that sense the matter has been addressed in part by the conditions of approval of 19 June 2007 which place restrictions on the number of vehicles and limit the use of the cold store to a small quantity of milk (up to six crates) at any one time.
Having regard to the fact that the business may (or may not) be sold, and also that the 12 month approval period is subject to review, the position appears to be that if all conditions are adhered to and there are few, if any, complaints that the use could continue beyond 12 months.
Alternatively, non‑adherence to the conditions of approval could lead to the use being discontinued on or around 19 June 2008.
In the circumstances where the applicant is being given the opportunity to prove adherence to the set of conditions imposed on 19 June 2007, the Tribunal can find no valid reason at this time why the approval should be open‑ended, and that a 12 month "time limited" approval is fair and reasonable.
Orders
The Tribunal makes the following order:
1.The application for review is dismissed.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
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