LIZACK and CITY OF KALGOORLIE-BOULDER
[2015] WASAT 20
•27 FEBRUARY 2015
LIZACK and CITY OF KALGOORLIE-BOULDER [2015] WASAT 20
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 20 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:183/2014 | 3 DECEMBER 2014 | |
| Coram: | MR J JORDAN (MEMBER) | 27/02/15 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed. The decision of the City of KalgoorlieBoulder to refuse the application is endorsed. | ||
| B | |||
| PDF Version |
| Parties: | TONY LIZACK CITY OF KALGOORLIE-BOULDER |
Catchwords: | Town planning Development Application for retrospective planning approval Refusal Eight commercial vehicles on a lot Lot zoned 'Extensive Residential' under the local planning scheme Lot size 5,000m² Commercial vehicle parking use applied for Parked vehicles include semitrailer, tip truck, skid steer mounted diggers and excavators Characterisation of use as depot under local planning scheme Whether the actual use is not permitted under the local planning scheme Whether discretion available Zoning of neighbouring lots Use made of neighbouring lots |
Legislation: | City of Kalgoorlie-Boulder Town Planning Scheme No 1, cl 1.6, cl 3.3, cl 3.4, cl 3.5, cl 3.6, cl 3.10, cl 4.3, cl 4.3(2)(a), Sch 1 City of Swan Town Planning Scheme No 9 Planning and Development Act 2005 (WA), s 252(2), s 87(4) State Administrative Tribunal Act 2004 (WA), s 29(1) Town Planning and Development Act 1929 (WA), s 8A, s 8A(1) |
Case References: | Chapman and City of Armadale [2011] WASAT 205 City of Swan v Taylor [2005] WASCA 88 Clay v City of Nedlands [2012] WASC 402 D'orazio Enterprises Pty Ltd and City of Stirling [2012] WASAT 219 Foodbarn Pty Ltd and The SolcitorGeneral (1975) 32 LGRA 157 Gallway Investments Pty Ltd & Anor and City of Rockingham [2006] WASAT 212 Humich and City of Gosnells [2008] WASAT 298 Re Minister for Planning; ex parte City of Canning [1998] WASCA 339; (1999) 101 LGERA 284 The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 |
Orders | On the application heard before Member James Jordan it is on 27 February 2015, ordered that:,1. The application for review is dismissed.,2. The decision of the City of Kalgoorlie-Boulder issued 8 May 2014 to refuse the application for planning approval to park and store the commercial vehicles on No 7A (Lot 20) Hunter Street, Somerville is endorsed. |
Summary | Proposed was retrospective approval for the parking of a combination of trucks and small earth moving machinery on a 5,000m² extensive residential zoned lot in Kalgoorlie. The application made was for the use 'parking of commercial vehicles' in a residential zone as allowed in certain circumstances and arguments were also advanced to have the use considered as storage, but not as part of a depot use as defined in the town planning scheme.,The Tribunal found that the proposed parking of the eight commercial vehicles on the site could not be characterised as 'parking of commercial vehicles' as provided for under the town planning scheme because as a matter of fact and degree, the parking of the commercial vehicles did not naturally attach or appertain to the residential use of the site.,The Tribunal found that, as submitted by the respondent at the hearing, the use applied for was properly characterised as a depot under the town planning scheme. A depot use was not permitted in the extensive residential zone and therefore it was not open to the Tribunal to determine the application differently. ,The application for review was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LIZACK and CITY OF KALGOORLIE-BOULDER [2015] WASAT 20 MEMBER : MR J JORDAN (MEMBER) HEARD : 3 DECEMBER 2014 DELIVERED : 27 FEBRUARY 2015 FILE NO/S : DR 183 of 2014 BETWEEN : TONY LIZACK
- Applicant
AND
CITY OF KALGOORLIE-BOULDER
Respondent
Catchwords:
Town planning Development Application for retrospective planning approval Refusal Eight commercial vehicles on a lot Lot zoned 'Extensive Residential' under the local planning scheme Lot size 5,000m² Commercial vehicle parking use applied for Parked vehicles include semitrailer, tip truck, skid steer mounted diggers and excavators Characterisation of use as depot under local planning scheme Whether the actual use is not permitted under the local planning scheme Whether discretion available Zoning of neighbouring lots Use made of neighbouring lots
Legislation:
City of Kalgoorlie-Boulder Town Planning Scheme No 1, cl 1.6, cl 3.3, cl 3.4, cl 3.5, cl 3.6, cl 3.10, cl 4.3, cl 4.3(2)(a), Sch 1
City of Swan Town Planning Scheme No 9
Planning and Development Act 2005 (WA), s 252(2), s 87(4)
State Administrative Tribunal Act 2004 (WA), s 29(1)
Town Planning and Development Act 1929 (WA), s 8A, s 8A(1)
Result:
The application for review is dismissed.
The decision of the City of KalgoorlieBoulder to refuse the application is endorsed.
Summary of Tribunal's decision:
Proposed was retrospective approval for the parking of a combination of trucks and small earth moving machinery on a 5,000m² extensive residential zoned lot in Kalgoorlie. The application made was for the use 'parking of commercial vehicles' in a residential zone as allowed in certain circumstances and arguments were also advanced to have the use considered as storage, but not as part of a depot use as defined in the town planning scheme.
The Tribunal found that the proposed parking of the eight commercial vehicles on the site could not be characterised as 'parking of commercial vehicles' as provided for under the town planning scheme because as a matter of fact and degree, the parking of the commercial vehicles did not naturally attach or appertain to the residential use of the site.
The Tribunal found that, as submitted by the respondent at the hearing, the use applied for was properly characterised as a depot under the town planning scheme. A depot use was not permitted in the extensive residential zone and therefore it was not open to the Tribunal to determine the application differently.
The application for review was dismissed.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Mr A Wiese (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : City of Kalgoorlie-Boulder
Case(s) referred to in decision(s):
Chapman and City of Armadale [2011] WASAT 205
City of Swan v Taylor [2005] WASCA 88
Clay v City of Nedlands [2012] WASC 402
D'orazio Enterprises Pty Ltd and City of Stirling [2012] WASAT 219
Foodbarn Pty Ltd and The SolcitorGeneral (1975) 32 LGRA 157
Gallway Investments Pty Ltd & Anor and City of Rockingham [2006] WASAT 212
Humich and City of Gosnells [2008] WASAT 298
Re Minister for Planning; ex parte City of Canning [1998] WASCA 339; (1999) 101 LGERA 284
The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304
Introduction
1 These proceedings involved an application brought pursuant to s 252(2) of the Planning and Development Act 2004 (WA) (PD Act) by Mr Tony Lizack (applicant) for review of the refusal by the City of KalgoorlieBoulder (City or respondent) to refuse an application for retrospective planning approval for the parking of commercial vehicles at No 7A (Lot 20) Hunter Street, Somerville (site).
Site and locality
2 The site is flat, rectangular, has an area of 5,000m², frontage of 72.47 metres to Hunter Street at the western end and a depth of 69.1 metres. A single storey residence is constructed in the northwest corner of the site behind which is a swimming pool and a 180m² shed approved for domestic use. The shed is set back some 18 metres from the rear eastern boundary. The vehicles and machinery in question are parked neatly between the shed and the rear eastern boundary. Road base has been laid to create a turnaround between the shed and the southern boundary. The only substantial vegetation is around the house and pool.
3 The site was created by the subdivision of a lot of about 1.6 hectares into three lots. To the rear of the site are, respectively, Lots 21 and 22, which are two battle axe lots of about 5,200m² with adjacent access legs with cross easements running adjacent to the northern boundary of the site. This accessway is paved with unsealed grey road base. Lot 21, immediately to the rear, has a house, sheds and a stable. The resident and owner of Lot 21 has planning approval for 'parking of a commercial vehicle' within a residential zone. He uses the vehicle in his concreting business.
4 To the south, the site has a common boundary with lots of over 1 hectare with frontage to Great Eastern Highway that are used for light industrial purposes. To the north of the site, lots similar in size to the site extend to Wortley Street, which abuts a railway reserve.
5 Opposite the site is a lot of about 1.5 hectares used for landscape supplies. The lot opposite, also abuts on the southern side, the rear boundary of lots used for industrial purposes fronting Great Eastern Highway. On the northern side of the lot, opposite are lots of about 1.5 hectares, one of which is developed as kennels and a cattery. On the day of the hearing the Tribunal, accompanied by the respective parties, viewed the site. Other properties on Hunter Street were viewed from the road.
The use
6 The applicant applied for retrospective planning approval for what was termed on the application form to be 'parking of commercial vehicles'. The application and the viewing of the site showed that between the shed and the eastern boundary were parked a prime mover semitrailer combination, a 14 tonne excavator on caterpillar tracks and, an 8 tonne excavator on caterpillar tracks, a tip truck loaded with a skid steer digger, a 6 tonne loader and a trailer that could be used for transporting the smaller vehicles. In a covering letter, the applicant said he used his lot for the 'storage' of his machinery. He employs no one, no trade is conducted from home and there is no advertising on the site.
Planning framework
7 Under the City of KalgoorlieBoulder Town Planning Scheme No 1 (TPS 1) the site is zoned 'Extensive Residential' and has a density coding of R2. The lots to the rear and to the north of the site have the same zoning. The lots abutting the site to the south that front Great Eastern Highway and the landscape supplies lot directly opposite, are zoned 'Service/Light Industry'. The lots to the north of the Service/Light Industry zoned lot opposite are zoned Extensive Residential.
8 Clause 1.6 of TPS 1 sets out the Scheme Objectives as follows:
To ensure and promote the orderly and proper development of land while securing the amenity of and the best living and working environment for the residents of the City, and to direct and control the development of the Scheme area in such a way as shall promote and safeguard the health, safety and convenience and economic and general welfare of its inhabitants and the amenities of every part of the City.
9 Clause 3.10 of TPS 1 sets out objectives for the Extensive Residential and Special Residential zones as follows:
(a) to facilitate low density residential development at R2 and R2.5 in the Extensive Residential Zone.
(b) …
(c) To encourage the establishment of stables and the keeping of livestock.
(d) To encourage the retention of significant vegetation.
(e) To facilitate businesses compatible with low density residential development and the keeping of livestock.
10 Clause 4.3 of TPS 1 is headed 'Parking of commercial vehicles within residential zones' and states:
(1) Planning approval is required for the parking of commercial vehicles on any lot within a Residential Zone unless:
(a) only one vehicle is parked on the lot; and
(b) the vehicle is 2 tonnes tare weight or less.
(2) The following requirements shall apply to any person parking a commercial vehicle in a Residential Zone:
(a) the vehicle shall form an essential part of the occupation of an occupant of the dwelling;
(b) no vehicle shall exceed either 2.7 metres in height or 16 metres in length;
(c) any vehicle exceeding 8 metres in length shall be screened from view from outside the lot;
(d) major repairs to the vehicle shall not be undertaken on the lot; and
(e) any minor repairs, servicing or cleaning of the vehicle shall be carried out in an area which is screened from view from outside the lot.
(3) …
11 Schedule 1 of TPS 1 includes the following interpretations:
commercial vehicle: means a vehicle whether licensed or not and which is used in conjunction with a trade or profession and shall include trailers, tractors and their attachments, buses and earthmoving machines whether self propelled or not but shall not include a passenger car derivative as defined by the Vehicle Sales Regulations 1976 (as amended), a van, utility or light truck which is rated by the manufacturer as being suitable to carry loads of up to 1.5 tonnes.
depot: means a place where goods or vehicles are deposited or stored for purposes other than retail or wholesale.
12 Clause 3.6 of TPS 1 provides that if a use of land for a particular purpose is not listed in the Zoning Table, then, if it is decided that the use is consistent with the purpose of the zone, the use may be permitted.
13 Table 1, the Zoning Table of TPS 1, includes symbols and blank spaces as explained in cl 3.3 and cl 3.4 and shows that the use 'depot' is not permitted within the extensive residential zone.
14 The applicant made reference to the circumstances of him buying the site, its current use and his current business situation, and asked that they be a consideration. The PD Act at s 241(3) makes reference to claims of hardship, but specifically only in respect to subdivision applications. The applicant's situation was noted, but while this helps explain his approach to the use of the land, his circumstances cannot be a determining influence.
Issues
15 From the submissions of the parties the Tribunal has identified the issues as follows:
1) whether the use applied for constitutes a 'depot' under TPS 1;
2) if the answer to issue 1 is 'yes', does the Tribunal have jurisdiction to review the decision of the respondent in circumstances where the use of the land for 'depot' is not permitted under TPS 1; and
3) if the answer to issue 1 is 'no', should the application be refused, in any event.
Discussion
16 The hearing of this matter commenced with both parties respectively submitting that, for different reasons, the Tribunal had no jurisdiction to hear and determine the matter.
Submission of the applicant on jurisdiction
17 The applicant contended that the City had no lawful jurisdiction to make decisions affecting his use of the land in his certificate of title (and it would therefore follow that the Tribunal had no jurisdiction because there would be no decision to review). The applicant's statements were set out in both his statement of issues, facts and contentions and in his response to the witness statement of Mr Andrew Dover, the City's planner, who was called as a witness.
18 In brief, the applicant's arguments were purported to be drawn from the common law and constitutional law. They referred to him holding his title as a registered proprietor of an estate in fee simple, which together with the Australian Constitution not recognising local government and the City having no listing as a corporation, leads to the City having no lawful jurisdiction and no lawful right to command him to comply with the local planning scheme.
19 In response to this line of reasoning, the Tribunal respectfully adopted and cited to the parties at the hearing the findings of Senior Member P McNab in his decision in Chapman and City of Armadale [2011] WASAT 205 at [29] - [33]. Senior Member McNab stated that it was not strictly necessary to address similar arguments from that applicant which he termed 'socalled "constitutional arguments"' because of his final determination on the substance of that review. Senior Member McNab went on to state:
… I will go on to make some brief mention of [the constitutional arguments] since so much work was put into them by the parties and their assistants. They relate to the status of corporations, local government, the constitutional validity of statutory laws, the sanctity of the common law and the status of private property.
In my view these arguments are untenable and have no substance whatever. They are completely devoid of any merit. These types of arguments pay no attention to historical facts or to our notions of what is considered to be law and the accepted constitutional underpinnings of our system of government.
Further, they have been consistently rejected by the highest courts in this State and they include the cases cited by the respondent's Counsel: see, for example, Pennicuik v City of Gosnells[2011] WASC 63 and Glew v Shire of Greenough[2006] WASCA 260, a decision of the Court of Appeal in respect of which the High Court of Australia denied special leave to appeal, in 2007.
I should mention that there are other similar (and unsuccessful) cases brought by Mr Glew in the Supreme Court, and they are all to the same effect.
Further, if the arguments were valid then of course this Tribunal would be rendered nugatory. It is, however, a settled axiom of administrative law that the authority of a Tribunal does not in effect extend beyond presuming the validity of Parliament's statutes: see the decision of Brennan J sitting as the President of the Administrative Appeals Tribunal in Re Adams and Tax Agents' Board(1976) 12 ALR 239[.]
20 The Tribunal informed the applicant that it was proceeding on the basis that the powers and functions of the local government in exercising its authority under its local planning scheme, and of the Tribunal in reviewing the City's decision, are established in the Parliament's statutes, including in the PD Act and the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 87(4) of the PD Act provides that a local planning scheme has full force and effect as if enacted by the PD Act. The parties were informed that the Tribunal would proceed on the basis that it had jurisdiction, to the extent of the authority extended to it under the statutes.
Submission of the respondent on jurisdiction
21 The City also raised an argument as to the jurisdiction of the Tribunal. The City submitted that the requirements of cl 4.3 of TPS 1 meant that parking of a commercial vehicle in a Residential zone must be 'incidental' to the residential use. The City went on to cite City of Swan v Taylor [2005] WASCA 88 (Taylor) in which Johnson J, at [67], stated that the method of determining incidental uses is the 'identification of a predominant use and a determination of whether the proposed use is consequent on such a use or naturally attaching, appertaining or relating to such a use'. At [38] in Taylor there was reference to Re Minister for Planning; Ex parte City of Canning [1998] WASCA 339; (1999) 101 LGERA 284 and Johnson J stated at [39]:
The Full Court further held that the question whether the use for the purposes of a pharmacy was incidental to the use for the purposes of the medical complex, was simply a question of fact and degree and was not a discretionary decision from which an appeal could be made[.]
22 Johnson J then said at [40]:
Thus, the law on this subject is clear. An appeal lies to the Tribunal only in relation to the exercise of a discretionary judgement. Mere questions of fact and degree are not properly the subject of an appeal. …
23 Johnson J said in summary at [31], that 'the jurisdiction of the Tribunal is confined to a review of the exercise of a discretionary power and does not extend to reviewing determinations of fact'.
24 It was the submission of the respondent that the matter of determining if the storage of vehicles, equipment and machinery is incidental to the residential use is a question of fact and degree and not a discretionary judgment from which an appeal to the Tribunal could be made. The respondent went on to state that, 'the fact that this use is not incidental to the residential use … cannot be appealed to this Tribunal'.
25 The Tribunal agrees, with respect, with the observation of the Tribunal in Humich and City of Gosnells [2008] WASAT 298 (Humich) at [38] :
Ultimately, the classification of a use for the purposes of land use planning involves questions of fact and degree. …
26 The Tribunal, in The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 (Strata Plan 18449), at [53], distinguished the decision in Taylor. The Tribunal said the decision in Taylor was directed to an application commenced under the then City of Swan Town Planning Scheme No 9. It was found that the opinion expressed in Taylor on s 8A of the Town Planning and Development Act 1929 (WA) (TPD Act) was strictly obiter and did not include further analysis of s 8A(1). The Tribunal proceeded not to apply her Honour's interpretation of that section. In Strata Plan 18449, at [54], the Tribunal stated:
… On the proper construction of s 8A of the Act, the Tribunal has jurisdiction to categorise a proposed land use for the purposes of the applicable town planning scheme.
27 The Tribunal went on to find that on a literal interpretation of the wording of s 8A(1) of the TPD Act:
The Tribunal has jurisdiction to categorise the use proposed in a planning application in circumstances where the responsible authority has categorised the proposed use.
28 Section 252(1) of the PD Act is in essentially the same terms as was s 8A(1) of the TPD Act, although s 252(2) now expressly permits an applicant to apply to the Tribunal for review of a responsible authority's decision under a local planning scheme as to the classification of the use. Section 29(1) of the SAT Act provides that the Tribunal has the functions and discretions corresponding to those exercisable by the decisionmaker in the exercise of its review jurisdiction. This includes the characterisation of a proposed development which is the subject of review proceedings.
29 Consistent with this finding the Tribunal proceeded with the hearing on the basis that it has jurisdiction to determine how a use is to be characterised, including as a relevant consideration whether the use applied for by Mr Lizack would be incidental to the existing use already made of the site or whether in fact what is proposed is a discrete use. This approach is consistent with that of the Tribunal to be found, for example, in: Clay v City of Nedlands [2012] WASC 402 and D'Orazio Enterprises Pty Ltd and City of Stirling [2012] WASAT 219.
Comment
30 In this matter it is necessary for the Tribunal to determine whether the use made of the site is residential with the associated use 'parking of commercial vehicles' or is in fact two separate uses, one being residential the second being a place where commercial vehicles are parked and stored and therefore, by definition, a depot under TPS 1.
31 As cited above in Humich, it is said that determining the classification of use of the land for planning purposes involves a question of fact and degree. It is appropriate here to refer to clause 3.5 of TPS 1, which states:
Where in the Zoning Table a particular use is mentioned it is taken to be excluded from any other use class which by its more general terms might otherwise include such particular use.
32 That is, if a use fits within a use class, it is not permitted under TPS 1 to strain to place the use in a different use class because an attribute of the use might also be referred to in the definition of that other use. Similarly, the Tribunal does not accept that a use can properly be considered as a use not listed when there might be some feature added but that feature does not alter the substantial character of the use.
33 The vehicles subject to the application are readily identifiable as fitting within the definition of a commercial vehicle in TPS 1. The applicant said that the vehicles would simply be parked on the site until it is necessary to take them to a workplace away from the site. It was his assertion that the vehicles were simply being stored on the site until needed.
34 The use 'parking of commercial vehicles' is not a use class in Table 1 of TPS 1, but can only be considered in association with residential use in a Residential zone. In this respect, the City's submission that this use is 'incidental' to the predominant residential use of a lot is considered the correct planning approach. The Tribunal notes that in Taylor, at [67], the determination of whether a particular land use is 'incidental to' another land use:
… requires the identification of a predominant use and a determination of whether the proposed use is consequent on such a use or naturally attaching, appertaining or relating to such a use. …
35 The respondent said that some 76% of the site is designated for the manoeuvring and storage of the vehicles, equipment and machinery. The remaining 24% of the site is used for residential purposes. In its submission the storage of the vehicle and machines is the predominant use and is not incidental to the residential use of the site.
36 The Tribunal considers that, as provided in cl 3.10 of TPS 1, the predominant use of the site and similarly zoned lots must be residential, as a matter of orderly planning. The Tribunal would further refer to Gallway Investments Pty Ltd & Anor and City of Rockingham [2006] WASAT 212 (Gallway) in which the Tribunal, at [27], referred to an often quoted statement of principle held in Foodbarn Pty Ltd v SolicitorGeneral (1975) 32 LGRA 157 at [161]:
Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.
37 Clause 4.3 of TPS 1 provides for the parking of commercial vehicles within a Residential zone. It sets out requirements that must be addressed when considering an application for planning approval. A starting point, as suggested by the respondent, is why the commercial vehicle or vehicles in question are required to be parked on the residential property. The Tribunal accepts as proper planning that cl 4.3 of TPS 1 is relevant to circumstances where a resident might require the use of a commercial vehicle to travel to and from work, and in that respect it would be reasonable that the vehicle be parked at the residence outside of working hours. In this respect, the commercial vehicle, and even additional commercial vehicles such as a trailer or some machinery that might be placed on a trailer or the back of the commercial vehicle, might be considered as acceptable for parking overnight at a residence consistent with the requirements of cl 4.3(2) of TPS 1.
38 There must be, however, a threshold beyond which the parking of the commercial vehicles is no longer associated with the residential use of the site by the vehicle driver. The resident parking a commercial vehicle, perhaps with a trailer, might be incidental to the residential use. Parking eight vehicles is a different use which the Tribunal considers cannot appertain to the residential use of the site.
39 It is convenient for the applicant that he lives close to the range of machines that he might use for different jobs in his business, but the Tribunal has found that the parking of the commercial vehicles is not incidental to the predominant use of the lot for residential purposes.
40 In respect to the requirements to be satisfied for parking of a commercial vehicle in a residential area, the City pointed out that certain of the vehicles did not satisfy the height requirement of cl 4.3(2) of TPS 1. The Tribunal notes, however, that the City granted approval for the parking of a commercial vehicle over the height requirement on Lot 21. The scheme objectives at cl 1.6 of TPS 1 include consideration of the local amenity.
41 The respondent called as a witness, Ms Diane Forsythe, who lives at Lot 21, the battle-axe lot abutting the eastern boundary of the site. Ms Forsythe said her amenity was adversely affected by the use of the site. She said that she could see some of the machinery on the site above the fence, and that if the machinery was started up and moved, engine noise and reversing beepers could be heard from her property.
42 Ms Forsythe also made comment about how she believed the use of the site created dust. It was not established to the Tribunal's satisfaction whether dust came only from the site or in fact also came from vehicles on the unpaved access leg to the lots to the east of the site, the horse activities and the commercial activities on Ms Forsythe's property (now the subject of discussion with the City), or even from the heavy vehicle movement on the service/light industry lots to the south.
43 Ms Forsythe made additional comment in which she purported to have expertise in what she termed 'health regulations in tandem with planning regulations' and referred to what she considered to be an obligation on the applicant to landscape the site in a particular way. Ms Forsythe has no such expertise and little weight was given to her evidence in this regard. No weight was put on assertions made by Ms Forsythe on activity and incidents on the site that she said others told her about.
44 The applicant gave evidence of his vehicles being on the site as having no more impact on the locality than the industrial use made of the lots adjoining to the south and opposite than the kennels in the street and other lots in the locality being used for businesses and commercial vehicle parking.
45 The respondent, without producing evidence, said it was either discussing with or had agreed with, other owners how to resolve problems of illegal commercial activity and commercial vehicle parking on other lots. The Tribunal would add that where a lot abuts a different zone, the activity on the neighbouring zone may result in a lesser residential amenity, but it does not follow that the uses allowed in the neighbouring zone can be imported onto the site where they are not permitted under TPS 1.
46 The Tribunal did accept that the machinery on the site was visible and, if moved, would add to local noise and potentially dust. This was considered to be inconsistent with the requirement under the zoning that the predominant use of the site be for residential purposes.
47 The Tribunal has concluded that the parking and storage of the vehicles in the application 'is not consequent on or naturally attaching, appertaining or relating' to the use of the site for residential purposes: see Taylor. In using the principle in Gallway, cited above, the Tribunal has formed the view that on the site there are two distinct uses: one being residential, the other the parking and storage of the commercial vehicles. The Tribunal does not consider the fact that the owner of the machinery lives in the house on the site changes the fact that, properly construed, the site is used for residential purposes and separately for the storing of a range of different commercial vehicles.
48 This latter use fits squarely in the use class 'depot', as defined in TPS 1, as submitted by the respondent. The answer to the first issue therefore is 'yes'. The answer being 'yes', it must then be said that Table 1 of TPS 1 shows that a depot is a use that is not permitted in the Extensive Residential zone.
49 In respect to the second issue, as set out above, the Tribunal had jurisdiction to consider the application for review because the characterisation of the use applied for was in dispute. However, it being determined that the use is a depot, and this use is not permitted in the zone, there was in fact no discretion available to the City to do other than refuse the application for planning approval. As a grant of consent was not in the discretion of the City, it was not therefore open to the Tribunal to determine the matter differently. The use the applicant was seeking to have approved in the application for review could not therefore be allowed and the Tribunal has found that the refusal of the application must be endorsed.
Orders
1. The application for review is dismissed.
2. The decision of the City of Kalgoorlie-Boulder issued 8 May 2014 to refuse the application for planning approval to park and store the commercial vehicles on No 7A (Lot 20) Hunter Street, Somerville is endorsed.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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