Lynch and Town of Victoria Park
[2014] WASAT 162
•21 NOVEMBER 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: LYNCH and TOWN OF VICTORIA PARK [2014] WASAT 162
MEMBER: MR P McNAB (SENIOR MEMBER)
HEARD: 6 FEBRUARY, 25 MARCH, 18 JUNE AND 29 JULY 2014
DELIVERED : 21 NOVEMBER 2014
PUBLISHED : 28 NOVEMBER 2014
FILE NO/S: DR 378 of 2013
BETWEEN: PETER ELLIOT LYNCH
FAY DELORES LYNCH
ApplicantsAND
TOWN OF VICTORIA PARK
Respondent
Catchwords:
Town planning Development application Preliminary questions Nonconforming use rights Integrated retail and hire business dealing mainly with canvas goods (tents and trailers) Integrated commercial uses on subject land presented as a 'single planning unit' Subject land had two previous approvals First approval in 1985 under a 1961 town planning by-law Second approval in 1993 under a 1985 town planning scheme which superseded by-law Approvals for development and use of two separate buildings on subject land 1985 approval under by-law for rear storeroom building for storage and sale of goods in bulk Whether a warehouse Storeroom most apt characterisation of land use available under by-law 1993 approval under town planning scheme for showroom/office building at front of subject land Showroom required to be a building in which goods were displayed but for which predominant use was not sale of goods Whether activities of enterprise exceeded scope of approvals No evidence that restrictions contained within either land use definition ever complied with Whether liberal interpretation of past approvals permissible Relevance of past practices of local governments Tribunal holding that 1985 and 1993 approvals could not be read together to authorise current activities on site Tribunal determining that no relevant non-conforming use rights arose Preliminary questions answered adverse to applicants
Legislation:
City of Perth Town Planning Scheme No 1
Factories and Shops Act 1963 (WA)
Metropolitan Region Scheme
Town of Victoria Park Town Planning Scheme No 1, cl 3, cl 9, cl 18
City of Perth Zoning ByLaw No 63
Result:
Preliminary questions determined adversely to applicants' position
Summary of Tribunal's decision:
Preliminary questions arose in relation to alleged non-conforming use rights arising out of the operation of a mainly canvas goods (tents and trailers) hire and repair business trading as 'Open Road Rentals WA' located in the Town of Victoria Park.
The owners of the land (who were also the owners of the business) had been refused development approval by the Town of Victoria Park for a new enterprise to be built upon the site. This new business could be described as an upmarket brand shop with the display of certain expensive designer goods in a complex of three residential units with a café. The new business would be housed in a new building comprising elements of the two separate buildings already existing on the site, namely, a rear storeroom/warehouse and a front building with showroom and office components.
Because motor vehicles were to be on display (and, indirectly, for sale) in the proposed new building, the Town of Victoria Park considered that this was a prohibited use under its current town planning scheme and the development was therefore, in the Town of Victoria Park's view, incapable of approval whatever existing use rights existed on the site.
At first, the applicants had asserted non-conforming use rights arising out of the incidental sale of caravans on the site. As the review proceeded, it was asserted that extensive rights of use and development were available under previous longstanding approvals in the context of what had been recognised by, or acquiesced in, the Town or its predecessor local government authority, the City of Perth.
The first approval, in 1985, under a previous City of Perth bylaw (dating from 1961) was for a 'storeroom' at the rear of the property. The other relevant approved use, dating from 1993 under a new town planning scheme for the City of Perth which had superseded that By-law, included a 'showroom' use for a new building erected at the front of the property.
The Tribunal found that the current business operated mainly as a retail and hire enterprise over the whole of the site with various interrelated activities, and was to be considered as a single integrated enterprise and, in planning law, to be regarded as a 'single planning unit'.
The Tribunal also found that the By-law approval in 1985 was for, and could only be regarded as being for, the specific purpose of a building 'for the storage and sale of goods in bulk' the most apt land use classification available. The 1993 scheme approval was for 'a building in which goods are displayed but in which the predominant use is not the sale of goods'. There was no evidence that the restrictions in these definitions (storage of 'bulk' goods and a 'predominant use not the sale of goods') had ever been complied with by the applicants, especially given the integrated nature of the business on the site. This was the same result even if it had been possible to characterise the rear approval as a 'warehouse for wholesale trade purposes' under the By-law.
The combined effect of a previous 1982 Tribunal decision (decided under a similar by-law and zoning regime) and an earlier decision of the High Court of Australia in 1964 (decided under analogous Bylaws of the Shire of Perth) suggested that development approvals must not be inconsistent with such bylaws, and were not otherwise 'at large' in terms of the various permitted activities under the then zoning for the area.
The Tribunal held that whatever the town planning practices were that existed around the time of the 1985 and 1993 approvals, there was no justification for reading the approvals together liberally as approvals for all of the relevant business activities taking place on the site over the years, or for any use class conceivably applicable under either the Bylaw or, for that matter, the scheme's land use categories. Existing nonconforming use rights were limited to the terms of the two approvals and the defined categories of permitted land use.
As there were no relevant existing use rights attaching to the subject land, the preliminary questions were answered in the Town of Victoria Park's favour.
Leave was then granted for the applicants to withdraw their proceeding.
Category: B
Representation:
Counsel:
Applicants: Mr M Hotchkin
Respondent: Mr D Nicholson
Solicitors:
Applicants: Hotchkin Hanly
Respondent: McLeods
Case(s) referred to in decision(s):
AAA Egg Company Pty Ltd and Shire of Gingin [2013] WASAT 149
City of Nedlands Aged Persons Home Trusts Inc v City of Nedlands [2012] WASAT 75; (2012) SR (WA) 323
City of Perth v Food Plus Pty Ltd (1982) 51 LGRA 222
Food Plus Pty Ltd v City of Perth (No 2) (1982) 5 APA 414
O'Keefe v Shire of Perth [1964] WAR 89
Perth Vet Emergency Pty Ltd and City of Stirling [2013] WASAT 204
Shire of Perth v O'Keefe (1964) 10 LGRA 147
Wellington v Surfcoast Shire Council (2011) 186 LGERA 147
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The subject land in this review is No 18 (Lot 101) Twickenham Road, Burswood (subject land), Town of Victoria Park (Town). The site is approximately 1,000 m² in size and is currently improved by what is said to be 'a three level brick and iron showroom', but is colloquially known as the 'tree house' because of the presence of a large tree trunk that appears to grow through the roof of the modern building erected at the front of the lot.
Certain preliminary issues have arisen concerning the alleged existence of non-conforming use rights connected with the subject land. More detail of these issues and the history of the site are given in the comprehensive set of agreed facts, which are set out below.
The Tribunal has concluded, for the reasons that follow, that no relevant non-conforming uses exist on the subject land.
The Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
Procedural history
This case has had, unfortunately, numerous false starts and refinements of the preliminary issues to be decided.
After a mediation that did not settle the matter in November 2013, the matter was programmed, by consent, for a preliminary hearing in February 2014. That hearing culminated in the filing of revised submissions, a supplementary witness statement and an amended agreed statement of the preliminary issue to be decided.
As a consequence of the resumed hearing on 25 March 2014, further information concerning the proposal was supplied to the Town for its consideration. However, the matter did not progress towards any settlement.
Further witness statements and submissions were ordered to be filed on 17 April 2014, ahead of the resumed hearing of the matter on 18 June 2014. Subsequently, on 29 July 2014, the applicants were given leave to reopen their case on a limited basis, and the Tribunal received further submissions and an affidavit from Mr Dunwoodie,a retired town planning official in the City of Perth.
The matter became a reserved decision of the Tribunal shortly thereafter.
The original case: the proposed development
The original case, as commenced by the applicants dated 1 May 2013, referred to a 'mixed use development [for the subject land] comprising Shop, Showroom, Motor Vehicle Sales Premises [and] 3 multiple dwellings'.
Another way to describe the proposed development is as an upmarket brand shop with the display of certain expensive designer goods in a complex of three residential units and a café. This proposal could also be described as a 'retail concept store'.
That proposal was refused by the Town on 18 September 2013. The primary reason given for the refusal was that Motor Vehicle Sales Premises is a prohibited use in the relevant town planning zone under the Town of Victoria Park Town Planning Scheme No 1 (TPS 1). A number of other regulatory concerns were expressed by the Town, such as access arrangements to the property.
The agreed facts dated 13 January 2014 (see below) admit a proposed commercial use for the subject land described as 'motor vehicle sales'. Nevertheless, the evidence received during the hearing on 25 March 2014 suggested that what was actually being proposed was a form of unique boutique display - a 'bespoke' operation. There was in fact not to be any test driving, no direct sales on the premises or the servicing of vehicles.
Non-conforming use rights as originally claimed
The original grounds of review asserted existing nonconforming use rights arising out of a previous lawful use as a caravan sales premises. The logic of the original main grounds of review relied, in part, upon the current definition of 'Motor Vehicle Sales Premises' in TPS 1, which includes land or buildings used for the display and sale of new or secondhand caravans.
Thus, there was, it was submitted, some basis for linking the sale of caravans with an 'extension' to motor vehicle sales in the form envisaged in the proposal. In subsequent submissions, Mr McKellar, the then agent for the applicants, traced the use of the development of the land through previous planning instruments and approved uses. I will return to the effect of this planning history in a moment.
Agreed preliminary issues
As mentioned, it was necessary for the parties to refine, with more precision, the relevant issues before the Tribunal and, on 21 February 2014, the following agreed amended statement of preliminary issues was filed:
a)Whether nonconforming uses exist on the subject site;
b)If so the nature and extent of those rights;
c)Whether the application proposes an alteration or extension of a nonconforming use, or the erection, alteration or extension of a building used in conjunction with a nonconforming use, to which cl 18(2) of the Town of Victoria Park's Town Planning Scheme 1 (TPS 1) applies;
d)Whether the application proposes a change of use of land from a nonconforming use to another nonconforming use, to which cl 18(3) of TPS 1 applies;
e)If the answer to question (d) is 'yes', whether the proposed nonconforming use is:
(i)less detrimental to the amenity of the locality than the original nonconforming use; and
(ii)closer to the intended purpose of the Office/Residential Zone.
However, it is necessary to view these agreed preliminary issues through the scope of the review. They must be read, of course, in the context of the applicants' application, the Town's refusal decision and the associated planning issues before the Tribunal. The answers to the questions posed cannot be advisory, hypothetical or at large: they must be viewed through the lens of the application for review.
I should note for the record at this point that, on 12 May 2014, the applicants' agents wrote to the Tribunal withdrawing any suggestion of the use of an 'unlisted use' category in the possible extension of nonconforming existing use rights. That suggestion had arisen out of the discussions in the further hearing on 25 March 2014.
Finally, it is to be noted that some of the issues identified in the agreed amended statement of preliminary issues might, had the applicants been successful, have required the calling of further evidence.
The agreed facts
The agreed facts as at January 2014 appear in the document 'Statement Of Agreed Facts Re Preliminary Issue' dated 13 January 2014. This document is reproduced in its entirety, in substance, immediately below. I note that that document also records certain agreed aspects of the planning framework. The parties have also filed an agreed bundle of documents, including the previous City of Perth Zoning Bylaw No 63 (By-law 63), dating from 1961, which is central to the case.
The agreed facts and related matters are as follows:
Proprietorship of the land
1.The Applicants are the registered proprietors of No. 18 Twickenham Road, Victoria Park; being Lot 101 on Plan 77286 and the whole of the land contained in Certificate of Title Volume 1863 Folio 639 [the subject land].
2.The Applicants became the registered proprietors of six one eighth shares in the land on 27 May 1985 (three one eighth shares to Peter Lynch and three one eighth shares to Fay Lynch, the remaining two shares were held by Anne-Marie Lynch).
3.On 26 September 1994, AnneMarie Lynch transferred the remaining two one eighth shares to Peter Lynch.
Principal Structures on the [subject land]
4. The [subject land] currently contains two buildings, comprising:
a.A brick and iron building of approximately 150m² in floor area located at the rear of the Property (the 'Rear Building'); and,
b.A three storey brick, iron and wood building of approximately 200m² in base floor area located at the front of the Property (the 'Front Building').
5.On 17 May 1985 the Applicants applied to the Respondent's municipal predecessor, the City of Perth ('City'), for approval to commence development of a '150m² single level brick and iron storeroom'.
6.Planning approval was granted for the Rear Building on 27 June 1985 by the City under the Metropolitan Region Scheme.
7.The City also issued a Certificate of Local Authority for Factory Buildings certifying that the Rear Building was in conformity with the City of Perth Zoning By-law No. 63 [bylaw 63], which was at that time in force.
8.On or about 28 June 1985 detailed design plans for the 'Proposed Storeroom' comprising the Rear Building were approved by the City's Building Department and a building licence issued.
Approval of Front Building
9.On 20 December 1985 the City of Perth City Planning Scheme No 1 (Former Scheme) was gazetted.
10.On 8 September 1993 the Applicants applied to the City for approval of the Front Building, described in the application as a proposed 3 storey showroom and residence.
11.The land use classification of 'Showroom' was defined under the Former Scheme in the following terms:
'Showrooms' means a building or part of a building in which goods are displayed but in which the predominant use is not the sale of goods.
12.The application was considered at Council's meeting on 28 September 1993.
13.By letter dated 27 October 1993, planning approval was granted by the Respondent for the proposed showroom and residence.
14.The Applicants subsequently submitted amended plans for the proposed development, which depicted the upper floors of the building being used for 'Office' purposes rather than as a residence. The amended plans were approved by the City's planner.
15.The land use classification of 'Office' was defined under the Former Scheme in the following terms:
'Office ' means premises used for:
(a)the conduct of the administration requirements for the secretarial of accounting services of a business of industry;
(b)the practice of a profession; or
(c)the provision of business services.
16.A building licence for the proposed development in its amended form was granted by the City on 21 February 1995.
Use of the [subject land]
17.The Applicants operate a commercial enterprise from the [subject land] (the 'Enterprise') incorporating the use of both the Rear Building and the Front Building.
18.The Enterprise trades under the name of 'Open Road Rentals WA'.
19.A brochure depicting products made available for sale and hire by the Enterprise as at October 2013 [is included in the agreed bundle of documents].
Current Scheme
20.The [subject land] is currently situated within the scheme area of the Town of Victoria Park's Town Planning Scheme No. 1, which was gazetted on 30 September 1998 ('TPS 1').
21.The [subject land] is zoned 'Office/Residential' under TPS 1.
Application for approval of mixed use development
22.By letter dated 24 September 2012, written in response to a Land Use and Zoning Enquiry made in relation to the [subject land], the Respondent stated to the Architect for the Applicant, Mr Anthony Rechichi, in reference to the Rear Building:
'... 18 Twickenham Road was issued with an approval for a "Three Storey Office/Showroom" in 1993 with an existing "Warehouse" located at the rear of the property ...
A Warehouse is an "X" (prohibited) use, however in accordance with Clause 18 of TPS 1, a "non-conforming" use may remain in use so long as the use is not discontinued for a period of six months or more'.
23.On 1 May 2013 the Applicants applied for approval of development described in the application form as 'Proposed additions and alterations to existing showroom/warehouse building comprising new retail lifestyle store, new showroom, new small motor vehicles sales and 3 residential dwellings' (Application).
24.The Application proposes a mixed use development comprising:
a.residential use comprising 3 multiple dwellings; and,
b.commercial uses comprising:
i.shop
ii.showroom
iii.motor vehicle sales.
25.The use class of 'Motor Vehicles and Marine Sales Premises' is defined in Schedule 1 of TPS 1 as follows:
'any land or buildings used for the display and sale of new or second hand motor-cycles, cars, trucks, caravans and boats or any one or more of them and may include the servicing of motor vehicles sold from the site'.
26.The use class of 'Motor Vehicles and Marine Sales Premises' proposed by the application is an 'X' or prohibited use within the Office/Residential zone.
27.The Application was refused by the Respondent by notice dated 18 September 2013.
28.The Respondent's reasons for refusal of the application included the following:
'(1)Motor Vehicle Sales premises is an "X" (prohibited) use within the Office/Residential Zone under Town Planning Scheme No. 1'.
The summary of the parties' respective positions on the preliminary issues is also set out in that document, as follows:
1.As stated in its reasons for refusal of the Application, the Respondent [submits] that it does not have the discretion to approve the Application under TPS 1, due to the proposed Motor Vehicle Sales use being an 'X' use in the Office/Residential Zone.
2.The Applicant [submits] that discretion does exist to approve the Application under TPS 1 due to, inter alia, the existence of nonconforming use rights[.]
Land use activities
The first task of the Tribunal in such cases is to characterise both the past and present structures and activities taking place on the subject land (considered at any relevant point in time) from a planning perspective.
Some of the material relevant to this task appears in the statement of agreed facts. In addition, one of the co-applicants, Mr Lynch, deposed in his witness statement,as to certain activities that were taking place on the subject land. These matters were as follows:
10.From the time of establishment of the Enterprise on the Property in 1985 and until this day, the Enterprise involved, and still involves, the conduct of the following activities within the Property:
(a)The manufacture of specialised camping equipment including tents, camper trailers and poptop caravans;
(b)Sale of camper trailers and poptop caravans, amongst other camping equipment;
(c)Rental of camper trailers and other camping equipment;
(d)Repair of camper trailers, poptop caravans, camping equipment in addition to the occasional repair of motor boat canvas, trailers and horse floats;
(e)Warehousing and storage of camper trailers, poptop caravans and camping equipment.
Importantly, Mr Lynch specifically identifies the activities at subparagraphs (a), (d) and (e) above as taking place in the rear building on the subject land.
In the cross-examination of Mr Lynch, the following additional matters emerged:
•The business was engaged in dealing with predominately canvas products.
•Generally speaking, half of the rear site that is, the storeroom/warehouse was used for the storage of tents, (although it was not clear if that was also in a showroom capacity); the other half was for the storage of canvas products.
•In 1985, there had been some 35 trailers on the subject land; this was now down to about six or seven.
•The business would also occasionally sell caravans on a consignment basis.
•The business did not need to advertise.
This evidence leads to the Tribunal's findings below that this mainly retail and hire enterprise operated over or on the whole of the site, with various interrelated activities to be considered as a single integrated enterprise.
The respondent's arguments
The respondent's main arguments (or concessions) advanced by Mr Nicholson, counsel for the respondent were, in summary, that:
1)the 1985 approval was for a storeroom which forms what is now the rear use of the subject land;
2)the 1993 approval was for a showroom on the land; the rear use could be seen as subsumed into the dominant showroom approval; and
3)some of the activities at the rear of the site could be seen as incidental to the showroom activity.
However, the respondent did not concede that everything that was taking place on the site over the years could necessarily be regarded as approved or lawful.
More importantly, the respondent also drew attention to cases dealing with the interrelationship between the Metropolitan Region Scheme (MRS) and Bylaw 63 to which I will refer in detail below.
The applicants' arguments
Counsel for the applicants, Mr Hotchkin, essentially argued that the nonconforming existing use rights flow from the actual activities taking place on the subject land, activities which, he submitted, were partly or wholly authorised or acknowledged or acquiesced in, by the respondent or its predecessor local authorities. He submitted that deference should be shown to this position.
Mr Hotchkin contended that the Tribunal was dealing with a quite different planning framework from that which was previously in place, and that one should not view the planning approvals, such as they were over the years, through the prism of modern planning regulation so as to deny his clients any reasonable rights flowing from their longstanding use and associated nonconforming existing use rights.
In particular, Mr Hotchkin submitted that no narrow view should be taken of the permitted classes of land use to be found in Bylaw 63.
Relevant principles found in Western Australian planning law
The local cases, for example, Food Plus Pty Ltd v City of Perth (No 2) (1982) 5 APA 414 (Food Plus) make it clear that, historically, development proposals, absent any town planning scheme, were to be decided under the MRS, 'taking into account' Bylaw 63. The former Tribunal held that development approvals must be 'in accordance with' any such zoning bylaws and that any land use must be a 'permitted use' under, relevantly, Zone 7 of Bylaw 63: see Food Plus, at 418.
This aspect of the decision was not challenged or commented on in a subsequent appeal to the Supreme Court: see, City of Perth v Food Plus Pty Ltd (1982) 51 LGRA 222, where conditions consequently imposed were reviewed.
No authority has been cited to me that suggests that it is permissible to gloss over the specific classes of land use permitted under Bylaw 63 (or its equivalent) to arrive at generalised conceptions of, say, a warehouse use or a building used for storage, shorn of the drafter's express limitations.
In addition, there is the High Court of Australia decision of Shire of Perth v O'Keefe (1964) 10 LGRA 147 (O'Keefe), decided, it appears, under analogous 1960 bylaws in force immediately before the coming into force of Bylaw 63 (in October 1961).
Thus, the material reproduced at pages 148 149 of O'Keefe, suggests that the basic structure of early town planning for Perth was the same as appears in Bylaw 63. That is, regulation was achieved by the creation of zones and classes of permitted buildings or land use for a relevant 'purpose'. (See also the decision at first instance found in O'Keefe v Shire of Perth [1964] WAR 89 (Jackson J) which also sets out some of this planning detail.)
The nonconforming use rights provisions found in the bylaws considered in O'Keefe, namely Bylaws 372 to 374, were drafted in broadly similar terms to the relevant clauses of bylaw 63 and, for that matter, its modern successor. cf O'Keefe at page 148, with cl 9 of Bylaw 63 and cl 18 of TPS 1.
Justice Kitto (with Owen J concurring) held (O'Keefe at 149) that references to purpose in this context were 'used [by the drafter] in an objective sense to refer to the end which is seen to be served by a particular use of premises, rather than in a subjective sense to indicate the object in the minds of particular individuals'. With respect, this formulation remains good law, as is his Honour's view (O'Keefe at page 150) that:
The application of the bylaw in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date.
His Honour was talking there specifically in terms of nonconforming use rights.
Importantly, O'Keefe also dealt with a claim that under the 1960 bylaws, a lawful use with nonconforming use rights, as a pottery making business in a residential area (which was a permissible 'Light Industry' purpose), extended to all 'Light Industry' purposes.
The High Court reversed the decision of the Supreme Court of Western Australia (O'Keefe v Shire of Perth [1964] WAR 89) which had held that the purpose of use so preserved extended to all 'Light Industry' purposes. As Menzies J said (O'Keefe, at page 151):
It is conceded that pottery making falls within the description of light industry but it does not follow, either in logic or in town planning, that use for one purpose which falls in to the category of light industry is to be regarded as use for any purpose which falls in to that category.
It is clear here that the process of characterisation of purpose for any proposed land use in respect of the 1985 approval is satisfied by, and only by, the selection of that part of By-law 63, cl 3, Class 'C', sub-class 'C8' (referring to the relevant zone, Zone 7), which reads 'buildings for the storage and sale of goods in bulk' (emphasis added). No other sub-class has relevance as, after all, the 1985 MRS approval, the associated two sets of plans and the application itself all refer to development in terms of a stand-alone brick constructed 'storeroom'.
On the facts presented to me in this review, that is the only category of land use purpose available under Bylaw 63.
The evidence of Mr Dunwoodie
The certificate of Mr Dunwoodie, dated 28 June 1985, prepared for the purposes of the Factories and Shops Act 1963 (WA) confirms the zoning but otherwise refers to the structure as a 'brick and iron shed' (emphasis added).
Mr Dunwoodie's other evidence, admitted only to give 'historical context to the circumstances in which any relevant planning approval or related instrument was issued or granted', cannot, with respect, add or detract from the established, objective facts: see the cases discussed at [23] - [31] in AAA Egg Company Pty Ltd and Shire of Gingin [2013] WASAT 149 (cited by Mr Nicholson) on ascertaining the true nature and scope of a grant of planning approval.
For the sake of completeness, I should add that the Town's apparent later acceptance that the rear building might have nonconforming use rights as a previously approved warehouse cannot be sustained upon the facts and analysis referred to above. After all, a 'Warehouse' use was expressly delimited to a 'Warehouse for wholesale trade purposes' (emphasis added) and there is simply no evidence in either case (that is, for the approved use as a storeroom building or when viewing the use as a warehouse use) of continuous use in the specific terms of the by-law subclass referred to above. In addition, as appears below, the enterprise has operated over or on the whole of the site as a single integrated enterprise with various retail and hire elements.
Thus, the combined effect of O'Keefe and Food Plus is that at the relevant dates of repeal and preservation of non-conforming use rights, as to the rear section of the subject land, no non-conforming use rights arose in respect of a building for the storage and sale of goods in bulk.
That is the only conclusion that satisfies the need for consistency with a purpose or purposes identified in Bylaw 63, and prevents any wider class of purposes being identified as classes of permitted use for nonconforming use rights purposes.
In City of Nedlands Aged Persons Home Trusts Inc v City of Nedlands [2012] WASAT 75; (2012) SR (WA) 323 (City of Nedlands), references are made, at page 329, to the Victorian case of Wellington v Surfcoast Shire Council (2011) 186 LGERA 147 (Wellington) as follows:
In [Wellington], Deputy President Dwyer, in a lengthy decision, discussed the relevant principles [concerning non-conforming use rights], drawing attention to the bundle of rights that flow from preservation as a nonconforming use, including the right to intensify, and even that of permitting some adverse amenity impacts therefrom, all in the context of a 'planning unit' of relevant land use. Deputy President Dwyer referred to the relevant part of the site in the case … as an 'integrated whole': see Wellington, at [144]. Deputy President Dwyer did not rule out, however, separate land uses attracting independent non-conforming use rights.
A single planning unit is a concept well known in planning law in this State. See, for example, La Rosa v City of Wanneroo (2006) 154 LGERA 11.
… The non-conforming use rights require the characterisation of the relevant purpose, namely, 'the end to which land is seen to serve', crystallised as at the date of approval or, in this case, lawful development, and so far as is necessary as … the date of commencement of TPS 2.
As the authorities make clear (see, for example, the cases collected in Wellington), we are concerned with actual use, not use measured against categories of prohibited use. Here, the 'integrated whole' of the lawful development [of the Aged Person Home], which probably runs at least from the date of the approved building licence … was, as the plans accompanying that approval clearly show, comprised of two interrelated components; residential and hospital care.
Essentially, that situation has not changed to the present time, but the hospital part of the use has, of course, transmogrified and evolved over time through that of a nursing home to that of hospice care. Such evolutionary changes are recognised and permitted under the principles of preservation of existing use rights.
The liberal approach permitted by the courts (see the references above in Wellington, and to O'Keefe at page 150 (referred to above) – namely, references to no 'meticulous examination' or 'precise cataloguing of individual items of goods dealt with') combined with the right to intensify, nevertheless do not permit the creation of nonconforming use rights beyond those identified above.
1993 approval
For completeness, I turn to consider the other approval applying to the front portion of the subject land.
As the evidence makes clear, the 1993 approval under the then in force City of Perth City Planning Scheme No 1 (1985 scheme) was for a three storey showroom and residence, later amended to 'showroom' and 'offices' purposes. A 'showroom' was defined in the 1985 scheme in terms of '… a building or part of a building in which goods are displayed but in which the predominant use is not the sale of goods' (emphasis added).
Two observations may be made about that approval.
First, it is an approval that, so far as is relevant, is confined to a particular defined use, namely, a showroom in a particular building. Secondly, the approval was not, in its own terms, connected in any obvious way with the rear building, except to acknowledge its physical presence or existence.
It is not clear to what extent, if any, the front building has actually continuously displayed goods the 'predominant use' of which has not been 'the sale of goods'.
This is mainly because the enterprise operated over or on the whole of the site as a single integrated enterprise, with elements of sales, display, hire, and repair, of canvas products, camping equipment, trailers, caravans, floats (with associated storage and administration). Those activities, according to the evidence, more or less took place over the entire site, presumably according to business necessity, convenience and the physical layout of the site, including the internal layout of the two buildings.
In my view, no planning approval or approvals has or have been given by any local authority at any point over the relevant years that adequately authorises, covers or regularises the whole of the activities on the subject land when considered as a single planning unit. (See further on the discussion of this concept of a 'single planning unit' in City of Nedlands at 329 (above), and Perth Vet Emergency Pty Ltd and City of Stirling [2013] WASAT 204, at [29]).
It is clear that there was, at best, the possibility of some lawful use from time to time of the front building but if, and only if, the interrelated and integrated activities of the enterprise on the subject land were suitably isolated into separate activities and transactions.
However, the invitation to take this wholly artificial course in the context of this case should be resisted as, amongst other things, it would be inconsistent with notions of orderly and proper planning for a site that is considered to be a single planning unit in the context of the facts found here. This may be perhaps especially so where the proposed new development (said to be built upon non-conforming use rights for the whole site) appears itself to be integrated over the whole of the site with a new structure, albeit one keeping a significant amount of the structure of the front building and some walls from the rear storeroom.
Have the applicants discharged the onus upon them?
The applicants have, in my view, a practical onus of showing that the land or buildings were 'being lawfully used' in terms of any by-law or scheme and not relevantly discontinued within the meaning of the various nonconforming use savings clauses in force from time to time: See, in particular, cl 18(1)(a) of TPS 1.
Although this was demonstrated upon the facts, to some degree, in Perth Vet Emergency Pty Ltd and City of Stirling [2013] WASAT 204 (a case which has some parallels to this review because of a similar reliance on City of Perth historical approvals), the applicants were ultimately unsuccessful there because of a discontinuance of rights over time.
Shortly put, I do not think that this onus has been discharged here by the applicants in the legal framework that I have identified. Consequently, the issue of rights arising from the application of cl 18(1)(a) of TPS 1 or its predecessor instruments does not arise.
The preliminary questions reserved by the parties will be answered in the negative.
I should say, in conclusion, that the approvals relied upon here were from another era, almost unrecognisable in our modern town planning and regulatory environment. Whatever the practical necessities that have led to a rather liberal regime of past regulation and approvals under an inadequate 1960s model, the Rule of Law would be undermined by ignoring the clear obligation to show regard to, respect for and consistency with the planning controls expressed in the previous Bylaw regime, particularly in questions of establishing nonconforming use rights.
I will hear from counsel on the future course of the review.
Orders
1.The Tribunal, for the reasons given, determines the questions reserved for preliminary determination as follows:
a)Q. Whether non-conforming uses exist on the subject site;
A. No. There are no relevant non-conforming uses existing on the subject site.
b)Q. If so the nature and extent of those rights;
A. Unnecessary to answer.
c)Q. Whether the application proposes an alteration or extension of a non-conforming use, or the erection, alteration or extension of a building used in conjunction with a non-conforming use, to which cl 18(2) of the Town of Victoria Park's Town Planning Scheme 1 (TPS 1) applies;
A. Unnecessary to answer.
d)Q. Whether the application proposes a change of use of land from a non-conforming use to another non-conforming use, to which cl 18(3) of TPS 1 applies;
A. Unnecessary to answer.
e)Q. If the answer to question (d) is 'yes', whether the proposed non-conforming use is:
(i)less detrimental to the amenity of the locality than the original non-conforming use; and
(ii)closer to the intended purpose of the Office/Residential Zone.
A. Unnecessary to answer.
2.The applicants have leave to withdraw their application for review, and the application is withdrawn.
3.There is no order as to costs.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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