Lombardo and Western Australian Planning Commission
[2009] WASAT 122
•24 JUNE 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: LOMBARDO and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 122
MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 24 JUNE 2009
FILE NO/S: DR 333 of 2008
BETWEEN: VINCENT JOHN LOMBARDO
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Development application Proposed Function Centre Hope ValleyWattlup Redevelopment Act 2005 (WA) Master Plan Whether Function Centre can be interpreted as a use listed in the development table and not permitted in Precinct 6 in accordance with the Master Plan Whether the proposed use should be interpreted as a Reception Centre being a use contemplated by the Master Plan but not listed in the development table Whether the proposed use is consistent with the objectives of Precinct 6 Range of allowable uses Whether intensity of proposed use is compatible with low intensity, highquality business park planned for Precinct 6 Claim for compensation in event proposed use is disallowed
Legislation:
Hope ValleyWattleup Redevelopment Act 2000 (WA), s 26(3), s 28(1), s 33, s 33(1)(b), Pt 3
Planning and Development Act 2005 (WA)
Result:
Application for review dismissed
Decision of respondent affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: N/A
Solicitors:
Applicant: N/A
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This is a review of the Western Australian Planning Commission's decision to refuse an application for a 'Function Centre' in a planned business park in Wattleup.
The respondent submitted that the proposed 'Function Centre' should not be allowed because it was a use not permitted by the Master Plan prepared for the area pursuant to the Hope Valley‑Wattleup Redevelopment Act 2005 (WA) and was not compatible with the objectives for Precinct 6 described by the Master Plan as an Eco Industry/Business Park.
The applicant recounted the history of the premises which had been approved as a dive training centre for up to 30 persons. The existing facilities would be additionally used for the conduct of functions such as seminars, business meetings, lunches, and weddings. The proposed use would cater for up to 100 persons and was compatible with other activities in and planned for the area.
The applicant also lodged a claim for compensation with the Tribunal in the event that the proposed use was denied.
The Tribunal determined that the proposed 'Function Centre' constituted a 'Reception Centre' as defined by the Master Plan but which was a use not listed by the Master Plan development table. Accordingly, in accordance with the provisions of the Master Plan, it was open to the responsible authority to determine whether the proposed use was consistent with the objectives of the precinct and whether it should be allowed.
The Tribunal, however, agreed with the respondent that the proposed use was inconsistent with the objectives for Precinct 6 because of its relatively high intensity of activity contrasting with the intended low intensity character of the business park as described in the Master Plan. The Tribunal accepted that there was potential to be disruptive to other land uses planned for the precinct.
The Tribunal therefore determined that the proposed 'Function Centre' should not be permitted.
The claim for compensation was considered in the context of the relevant provisions of the Hope Valley‑Wattleup Redevelopment Act 2005 (WA) and the Master Plan. It was evident from the statutory instruments that the applicant should apply to the respondent in respect of any claim for injurious affectation of the land. In the meantime, the Tribunal had no role in respect of any claim for compensation in the course of this review.
The application for review was dismissed.
Introduction
This is an application for the review of the Western Australian Planning Commission's (respondent or Commission) decision to refuse an application to use premises at Lot 9 Wattleup Road, Wattleup (site) as a 'Function Centre'.
The application was submitted to the City of Cockburn (City) on 14 December 2007.
The City forwarded the application to the respondent for determination in accordance with s 26(3) of the Hope Valley‑Wattleup Redevelopment Act 2000 (Redevelopment Act).
Following consultation with the Western Australian Land Authority (LandCorp) and relevant agencies, the respondent refused the application on 4 August 2008.
Mr Lombardo (applicant) lodged an application for review of the respondent's decision on 8 September 2008.
In conjunction with the application for review, the applicant has lodged a claim with the Tribunal seeking compensation for the value of the premises and the curtailed land use in the event the proposed use is denied.
The proposal and its context
The site lies about 2 kilometres east of the Wattleup Townsite.
North of Wattleup Road, land use is predominantly rural residential, whilst to the south, the land use is characterised by market gardening.
In 1993, the City approved development of a dive training centre for groups of five to 10 people. The first stage of the centre, comprising a manager's living quarters, a pool, a classroom and a communal kitchen/dining room, was constructed on the land. A second stage of the centre, comprising of 10 guest rooms, has yet to be constructed.
The present proposal is to use the premises as a function centre for functions catering for up to 100 people. Hours of operation would be between 9 am and 12 pm, seven days a week. The nature of functions would be to cater for seminars, business meetings, lunches and small weddings. Dive training would continue to be offered.
Statutory and policy instruments
The site lies within an area which is subject to land use and development control under the Redevelopment Act.
The Redevelopment Act provides at s 28(1) that:
The Commission may grant or refuse to grant approval of the proposed development having regard to ‑
(a)any master plan in force under Part 3;
(b)if a master plan is not in force in respect of the land the subject of the application, the FRIARS Final Strategy document;
(c)any relevant environmental protection policy approved under Part III of the EP Act;
(d)recommendations under section 26(4);
(e)consultations under section 27; and
(f)the requirements of orderly and proper planning.
The Hope Valley‑Wattleup Redevelopment Project Master Plan (Master Plan), prepared pursuant to Pt 3 of the Redevelopment Act, was gazetted in March 2005.
Part 4 of the Master Plan describes the relationship between precincts of the redevelopment area and the intended use of land.
Table 1 of Pt 4 of the Master Plan indicates the uses permitted and not permitted in the various precincts of the redevelopment area.
The Master Plan map indicates that the site is located in Precinct 6.
The development objectives for Precinct 6 are described in the LandCorp Planning Strategy (prepared pursuant to cl 4.3 of the Master Plan) as follows:
Eco-Industry Business Park (106.87ha)
Straddling the proposed Rowley Road extension, this precinct is well positioned to build upon its proximity and connections to the Kwinana Freeway as a low intensity business park. Precinct 6 marks the east entrance to the HVWRP and forms an important link between the more intensive industrial areas to the west and existing rural land and residential use areas that exist to the east. The creation of low intensity, high quality business and technology parks in a landscape setting, reinforced by the retention of remnant vegetation and wetlands will increase the buffer potential of the precinct to the surrounding areas and provide habitat corridors between Thomson's Lake and the coast. Land use will focus on clean industry, technology, research and development uses in a business park setting. Development of the precinct must recognise its role as Eastern Gateway. High quality, relatively low scale buildings set amongst landscaping are envisaged. Lot size will typically be 1000 ‑ 3000 [square metres].
Clause 4.5.2 of the Master Plan provides that if a use not specifically mentioned in Table 1 cannot reasonably be determined as falling within the type, class or genus of activity of any other use category, the Commission may:
(a)determine that the use is consistent with the objectives of the particular precinct and is therefore permitted;
(b)determine that the use may be consistent with the objectives of the particular precinct and thereafter follow the advertising procedures of cl 10.4 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular precinct and is therefore not permitted.
Schedule 1 of the Master Plan includes reference to the land use:
'Reception Centre ‑ means premises used for functions on formal or ceremonial occasions but not for unhosted use for general entertainment purposes'.
Clause 4.9 of the Master Plan provides for the continuation of lawful non‑conforming uses.
Clause 4.10 of the Master Plan provides that a person must not alter, extend or change a non‑conforming use without approval under the Master Plan.
Clause 6.2.4 of the Master Plan provides that the respondent shall not approve development of land unless there is a structure plan for the development area, or unless the respondent is satisfied that development will not prejudice the specific purposes and requirements of the development area.
The site lies within Development Area VI as set out in the Master Plan documentation. No structure plan has been prepared for this area.
The subject of compensation is a matter to be considered under the auspices of the Planning and Development Act 2005 (WA) (PD Act), s 33 of the Redevelopment Act and cl 12.5 of the Master Plan.
There is a time limit of six months from the date of approval of the Master Plan within which claims for injurious affection may be made. The Master Plan was gazetted in March 2005.
The respondent's decision
In determining the application, the respondent took into account objections to the proposal submitted by the City and LandCorp.
The respondent's decision of refusal was expressed in the following terms:
1)The proposed Function Centre is not a permissible use under the Hope Valley-Wattleup Redevelopment Project Master Plan.
2)The proposed Function Centre is contrary to the planned industry, technology, research and development uses for Precinct 6 ‑ The Eastern Industrial Precinct of the Master Plan.
3)The proposed Function Centre will be contrary to the orderly and proper planning of Precinct 6 and the preservation of amenities.
4)The proposal is not supported by adequate information articulating the exact purpose of the Function Centre in respect of the nature and type of the proposed activities, parking requirements, service provision and associated matters.
The respondent's argument
The respondent argues that the proposal is inconsistent with the planning objectives of the area and is a use not permitted by the Master Plan.
The proposed Function Centre is located within an area identified under the Master Plan as Precinct 6. The planning strategy for Precinct 6 is to establish an eco industry/business park with the objective of developing clean industry, technology, research and development uses in a business park setting.
The respondent submits that a function centre is a high‑impact leisure activity incompatible with the low‑impact research and development business park usage envisioned by the Master Plan.
The only uses specifically permitted in Precinct 6 by Table 1 of the Master Plan are 'Educational Establishment ‑ Tertiary', 'Research and Development' and 'Technology'.
The respondent argues that the proposed use 'Function Centre', which is not a specified use in Table 1, appears to be of a scale and nature comparable to a 'Hotel', 'Motel', 'Restaurant' or 'Tavern'. All of these uses are not permitted in Precinct 6. It follows, therefore, that the proposed development is not permitted under the Master Plan.
Alternatively, the proposed use could be characterised as the specified use 'Recreation ‑ Private', defined as 'premises used for indoor or outdoor leisure, recreation or sport which are not usually open to the public without charge'. This use is also not permitted by the Master Plan in Precinct 6.
The respondent draws attention to the circumstance that there is no structure plan in place for the relevant development area. Accordingly, the respondent should not approve development unless satisfied that it will not prejudice the specific purposes and requirements for the development area. In this regard, the respondent argues that the proposed 'Function Centre' accommodating up to 100 people could potentially be a disruptive activity.
The proposal, if approved, could adversely prejudice the requirements of the development area in relation to infrastructure planning, finished levels, the relationship with adjoining land uses and other matters to be considered as part of the planning process.
Parking requirements of the proposed development have not been addressed. In the absence of a structure plan, the respondent cannot provide guidelines to ensure non‑prejudicial development of the land.
Approval of the proposed development would establish a precedent for development inconsistent with the outcomes sought for the planning precinct.
The respondent drew attention to the City's revocation of a previous function centre approval in 2002 following complaints of noise and other disruptive activities.
The respondent also reminded the Tribunal that the local government, LandCorp and public authorities have recommended refusal of the application.
With respect to the applicant's submission of claims for compensation, the respondent argues that these are irrelevant to the present application for review.
While the respondent accepts that the applicant may be eligible for compensation in respect of injurious affection under the Redevelopment Act, the correct procedure is for the applicant to first lodge a claim with the respondent and await that claim to be determined in accordance with the provisions of the Redevelopment Act.
The applicant's argument
The applicant recounts the history of the premises, its context and physical characteristics in order to explain its legitimacy as a function centre.
The applicant advises that the existing approved premises comprises a commercial kitchen, a dining room, a conference room, toilets and showers, a large indoor swimming pool and a residence. There is sufficient parking for 100 people.
Toilet and sewerage capacity has been installed to service the originally anticipated second stage of the development comprising 10 additional guest rooms.
The premises is approved as a dive resort/function centre/training facility permitted to accommodate up to 30 persons.
There are no residents to the north, east or west of the property. A large sand mound blocks noise transmission to the south.
A noisy container terminal operation is intended to be developed within 1 kilometre of the premises.
The premises operated as a commercial enterprise well before the Redevelopment Act was gazetted.
The present proposal does not involve any new plans, and the proposed function centre activities would rely on the existing facilities and the existing parking capacity.
The applicant advises the Tribunal that he should be able to use the premises for the purposes for which it was built or any other use it may suit.
In the event of not being able to use the premises for the purpose applied for, the applicant seeks compensation.
The applicant has lodged a $1,030,000 claim to the Tribunal in respect of compensation for refusal of permission of the application and for the value of the land and buildings.
Analysis
Several issues arise from the submissions of the parties.
Firstly, is the proposed 'Function Centre' a use reasonably determined as falling within a use category listed in Table 1 and not permitted by the Master Plan prepared under the auspices of the Redevelopment Act?
Secondly, if the proposed 'Function Centre' is a use not reasonably determined as falling into any use category listed in Table 1 and discretion is open for exercise, should the use be permitted having regard for the prevailing planning objectives for the area?
Thirdly, in the event of the review of this application being dismissed, how should the applicant's claim for compensation be progressed?
On the first issue, the respondent has argued that the proposed function centre is of a scale and nature comparable to a 'Hotel', 'Motel', 'Restaurant' or 'Tavern'. Alternatively, the proposal could be characterised as 'Recreation ‑ private'. In each circumstance, the use is listed in Table 1 as not permitted by the Master Plan and it therefore follows that the proposed function centre should not be permitted.
The Tribunal is not convinced by this argument because the Master Plan elsewhere records the defined land use 'Reception Centre ‑ means premises used for functions on formal or ceremonial occasions but not for unhosted use for general entertainment purposes'. This description appears to succinctly reflect the proposal for a 'Function Centre' as described in the application rather than the listed uses mentioned by the respondent. The applicant has referred to the intended conduct of functions such as baptisms, weddings, business seminars and luncheons. These activities seem to aptly fit the definition.
In the circumstances, it would be appropriate to consider the application as a 'Reception Centre'. It is clearly not a use that is intended in the context of the Master Plan to be interpreted as a 'Hotel, 'Motel', 'Restaurant', 'Tavern' or 'Recreation ‑ private'. Indeed, the planning officer's report submitted by the respondent identifies and confirms that the proposed 'Function Centre' is most closely related to a 'Reception Centre'.
For reasons unknown, the land use 'Reception Centre' is not listed or mentioned in Table 1, notwithstanding that the Master Plan clearly contemplates that it constitutes a specific and separate use category.
It would therefore be appropriate to consider whether a 'Reception Centre', which is not a use mentioned in Table 1, was or was not consistent with the objectives of Precinct 6 in accordance with the procedure detailed in cl 4.5.2 of the Master Plan.
In respect of the first issue, the Tribunal therefore concludes that the proposed use should not be considered to be a use not permitted by Table 1 of the Master Plan.
Addressing the second issue, the respondent argues that the proposed use is inconsistent with the objectives of Precinct 6.
Precinct 6 is described as an 'eco‑industry/business park'. It is intended to create a low‑intensity, high‑quality business and technology park in a landscape setting. Land use will focus on clean industry, technology, research and development uses.
The respondent points out that the only outright permitted uses by the Master Plan in Precinct 6 are 'Educational establishment ‑ tertiary', 'Research and Development' and 'Technology'.
The respondent argues that the proposed 'Function Centre' is a potentially disruptive use because up to 100 people engaged in celebratory activities could regularly be expected and could remain on the premises late at night. Such activity could be disruptive to other land users in the vicinity.
The Tribunal acknowledges the respondent's concern about the potential for disruptive activity which might be associated with the proposed 'Function Centre'.
An examination of the allowable uses in Precinct 6 confirms that the range of permitted and discretionary uses is quite limited and confirms a clear planning intent for a specialised business park. The only allowable comparable use to the 'Function Centre' or 'Reception Centre' is that of 'Club premises', which is a use not permitted unless the Commission grants planning approval. The Tribunal notes that a legally constituted club or association (such as a sports club) is typically likely to be a use conducted at a relatively low frequency and intensity of activity.
In this regard, the Tribunal considers that the proposed 'Function Centre' or 'Reception Centre' is probably a use at the higher end of a scale of activity intensity. It could reasonably be associated with a high intensity of traffic movement, car parking, night light, amplified music and social jollity. Such a use in Precinct 6 would appear to be beyond the intensity of the range of uses presently allowable by Table 1 of the structure plan.
The Tribunal notes the absence of plans and detailed information in relation to servicing and conduct of the proposed 'Function Centre' or 'Reception Centre'. It is therefore difficult to be convinced that the proposed business is able to be operated and managed in an unobtrusive and compatible manner with the other low‑key uses contemplated for the business park.
On the evidence tendered, the Tribunal is persuaded that the proposed 'Function Centre' or 'Reception Centre' is a use not consistent with the objectives of the precinct and should therefore not be permitted.
Turning to the third issue concerning the applicant's claim for compensation, the relevant statutory instruments referred to earlier in this report set out the provisions for compensation to landholders whose land is injuriously affected by the making of a scheme or plan.
The respondent has submitted that the responsible authority to whom the claim of compensation should be made in this instance, is the Commission (respondent), as provided at s 33(1)(b) of the Redevelopment Act.
Having regard to the relevant statutory instruments and in reference to this specific application, the Tribunal can find no alternative statutory provision or mechanism to alter this procedural arrangement for the assessment of compensation.
The Tribunal understands that the applicant has not yet made such a claim for compensation to the respondent and, accordingly, no decision has been made by the respondent in respect of whether compensation is entitled or in respect of quantum.
The Tribunal further understands that any claim for compensation for injurious affection to be now made to the respondent would appear to be well beyond the time limitation allowed for under cl 12.5 of the Master Plan.
The Tribunal therefore accepts the respondent's submission that it would not be appropriate to include within this review any determination of whether the applicant's land is injuriously affected or what quantum of compensation, if any, might be entitled.
Conclusion
Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse approval to undertake development of the site as a 'Function Centre' (more accurately described as a 'Reception Centre' in the context of the Master Plan) should be dismissed.
Order
1.The application for review is dismissed.
2.The decision of the respondent made on 4 August 2008 to refuse development approval for a 'Function Centre' at Lot 9 Wattleup Road, Wattleup is affirmed.
I certify that this and the preceding [87] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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