MacARTHUR and SHIRE OF AUGUSTA-MARGARET RIVER
[2005] WASAT 294
•10 NOVEMBER 2005
MacARTHUR and SHIRE OF AUGUSTA-MARGARET RIVER [2005] WASAT 294
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 294 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:459/2005 | DETERMINED ON THE PAPERS | |
| Coram: | MR J JORDAN (MEMBER) | 10/11/05 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | The application is dismissed The order issued by the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | NEVILLE JOHN MacARTHUR SHIRE OF AUGUSTA-MARGARET RIVER |
Catchwords: | Section 10(2) notice Short stay accommodation Grouped dwelling development Holiday chalets and cabins Application of policy Existing use right |
Legislation: | Residential Design Codes of Western Australia 2002 Town Planning and Development Act 1928 (WA), s 10, s 10(2) |
Case References: | Nil Nil |
Orders | 1. The application to have the notice issued under s 10 of the Town Planning and Development Act 1928 (WA) is dismissed and the order issued by the respondent under s 10 is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : MacARTHUR and SHIRE OF AUGUSTA-MARGARET RIVER [2005] WASAT 294 MEMBER : MR J JORDAN (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 10 NOVEMBER 2005 FILE NO/S : DR 459 of 2005 BETWEEN : NEVILLE JOHN MacARTHUR
- Applicant
AND
SHIRE OF AUGUSTA-MARGARET RIVER
Respondent
Catchwords:
Section 10(2) notice Short stay accommodation Grouped dwelling development Holiday chalets and cabins Application of policy Existing use right
Legislation:
Residential Design Codes of Western Australia 2002
Town Planning and Development Act 1928 (WA), s 10, s 10(2)
(Page 2)
Result:
The application is dismissed
The order issued by the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant : Mr Neville MacArthur
Respondent : Mr Andrew Lacey
Solicitors:
Applicant : Self-represented
Respondent : As Agent
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 Mr Neville John MacArthur (applicant) leases four of seven grouped dwellings erected in a block at Lot 1 Blackwood Avenue, Augusta. The applicant was using the four grouped dwellings for the purposes of short stay accommodation for tourists in conjunction with other premises he operates as tourist accommodation. The Council of the Shire of Augusta-Margaret River (respondent) served a notice on the applicant under s 10(2) of the Town Planning and Development Act 1928 (WA) (Act) ordering that the use cease because planning consent is required for this use and no approval had been given.
2 The applicant says that, as similar use had previously been made of the grouped dwellings, the use should be allowed to continue because of the council's policy PE.37 "Holiday Houses – Short Stay Use of Residential Dwellings" (policy). He says he had been led to believe the use could proceed without planning approval and, in any event, the use made of the grouped dwellings is now only different in that the length of stay is shorter.
3 The Tribunal has found that the permanent short stay accommodation use made of the grouped dwellings is not the same as a holiday home and so the development does not attract the benefit of the council's policy. Further, the Tribunal considers a change of use from grouped dwellings used as permanent accommodation to short stay accommodation use for tourists to be development which requires planning approval and no planning approval has been granted.
4 The Tribunal has decided that the order issued by the council is to be affirmed.
Background
5 In March 2000, the Shire of Augusta-Margaret River granted planning consent for seven grouped dwellings (also called units) on Lot 1 Blackwood Terrace, Augusta (subject land). The subject land has an area of just over 2000 square metres with a road frontage of about 24 metres at the eastern end and a depth of about 86 metres. The seven grouped dwellings are single storey and run from the front boundary westward to the rear of the subject land. Each faces the driveway access adjacent to the northern side boundary. The units are brick and tile and are attached
(Page 4)
- to each other in a slightly staggered form going up a gentle slope from the Blackwood Terrace frontage.
6 The applicant leased four of the grouped dwellings and in late 2004 commenced hiring them to tourists for the purpose of short stay accommodation.
7 The applicant operates "Baywatch Manor Resort", an approved two-storey purpose built budget travellers' accommodation building, two lots to the south and separated from the subject land by a vacant lot.
Section 10 notice
8 On 5 April 2005, the respondent wrote to the applicant advising that:
"Use of the Land for Short Stay Accommodation is 'Development' under the Town Planning and Development Act 1928 (the Act).
Council's Planning consent to undertake the Development was and is required under Council's Town Planning Scheme No. 19 (as amended) (the Scheme) prior to its commencement. On the facts presently before Council, no such approval was given. Accordingly, the Development must be regarded as unlawful. Under its existing Town Planning Schemes, Council does not have the power to grant retrospective planning approval. Accordingly, an approval cannot be granted for the Development."
9 The respondent then served on the applicant a notice of the same date stating:
"TAKE NOTICE THAT pursuant to section 10 of the Town Planning and Development Act 1928 (the Act) you are directed within 65 days after the service of this Notice on you, to cease using the Land for Short Stay Accommodation".
10 The applicant has lodged an application for review of this notice.
Planning framework
11 The subject land is zoned "Residential" in Town Planning Scheme No 19 (TPS 19).
12 Under Sch 1 of TPS 19 are the following definitions:
(Page 5)
- "Holiday Cabins and Chalets means an attached, semi-detached or detached residential type building occupied for holiday accommodation by persons for a period of not more than a total of three (3) months in any one (1) twelve (12) month period.
Short Stay Accommodation means the occupation of a chalet, caravan, camp or any other form of tourist accommodation within the 'Tourist Accommodation' zone or within a Tourist Accommodation Development approved by the Council in any zone, by persons for a period of not more than a total of three (3) months in any one (1) twelve (12) month period."
13 Under the "Residential" zone of the Zoning and Development Table of TPS 19, holiday cabins and chalets have no symbol in the cross-reference and so are not permitted in that zone.
14 When the grouped dwellings were approved, the Residential Planning Codes 1991 (1991 Codes) defined "grouped dwellings" as:
" ... a dwelling which is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above another, except where special conditions of landscape or topography dictate otherwise."
15 The 1991 Codes defined "dwelling" as:
"A building or portion of a building being used or adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family."
16 In March 2003, the respondent adopted the policy. The policy was based on the definition of "dwelling" in the 1991 Codes. The objectives of the policy include:
"To establish clear guidelines for the short stay use of holiday house accommodation within the Shire."
17 For the purposes of the policy the following definitions apply:
" 'holiday house' – means a building together with rooms and outbuildings separate from such a building but ancillary thereto, designed primarily as a dwelling house but does not include a 'bed and breakfast' facility which might also from time to time
(Page 6)
- be used for short stay accommodation for no more than six people at anyone time including people that are members of the owner's family but including all people where the owner is a company.
'short stay' – means a period of not more than a total of three (3) months within any one (1) twelve (12) month period."
18 The policy also states, importantly:
"The Council recognises that, in certain locations, the renting of residential dwellings for short stay holiday accommodation is a legitimate way in which alternative, short stay tourism accommodation can be provided within the Shire."
19 The respondent's resolution when adopting the policy included the following:
"To determine that the provisions of existing Schemes no 11, 16, 17, 18 and 19 do extend to affect control over the land use category of holiday houses involving the short term rental of single dwellings and that, as from the date of the resolution by Council on this point, all such proposals for the establishment of holiday houses shall form the subject of applications for planning approval under the scheme in force over the property and to perpetuate that control under the provisions of proposed district town planning scheme no 1."
20 The respondent sent out a letter to home owners accompanying the policy which included advice that:
"Using a residential home for short term holiday accommodation without Council's planning consent may be an unlawful use of that home."
21 And:
"The use of a building for human habitation on a permanent basis is a planning use that has different legislative controls from the use of a building on a temporary or short term basis. To recognise this distinction, Council uses the R-Codes definition to identify dwellings for the purpose of its town planning schemes, but has adopted the term holiday house in its Policy PE.37 to refer to buildings used for short stay residential
(Page 7)
- purposes. Short stay means periods of occupation, which collectively do not exceed three months in any twelve month period."
22 The letter continued:
"The position adopted by Council when adopting Policy PE.37 was that premises used as a holiday house before the change of Policy position (namely 24th March 2003) would not require approval given that they had been established during the period when planning control over this form of development had not been exercised. Premises to be changed to use for holiday house purposes after that date require prior Planning Consent under each of the Shire's town planning schemes. Council would apply Policy PE.37 and, specifically will notify the owners of the land in the vicinity of the property or advertise the proposal for wider public comment, as it deems fit."
23 In other words, notwithstanding that TPS 19 does not include the power to grant retrospective approval, the respondent resolved that holiday houses used for short stay purposes before 24 March 2003 may continue to be used for the purpose and council will not intervene.
Discussion
24 In 2000 the respondent approved an application for development of seven grouped dwellings on the subject land. It is the applicant's submission that the use of some of the grouped dwellings for short stay accommodation commenced not long after their completion. This was, apparently, by the owner and also by the then proprietors of a nearby motel.
25 In late 2004 the applicant made inquiries of officers of the respondent about the use of four units as short stay accommodation. The parties differ on the advice given: the applicant says he was only advised of health requirements and was told planning approval would not be necessary; the respondent says the applicant was always advised the matter would be referred to the planning department. While this misunderstanding may explain the applicant's actions, it is not of itself a basis for any particular decision on the matter in this instance.
26 The use of the four grouped dwellings as short stay accommodation for tourists commenced on 26 December 2004 and there is no dispute they
(Page 8)
- were in use for this purpose when the s 10 notice was served in April 2005.
27 In its letter to the applicant of 5 April 2005 which accompanied the s 10 notice, the respondent also said:
"It has been determined that if an application was made to Council, it may grant approval for one of the strata-titled units to be used for Short Stay Accommodation if no significant objections were received. However, Council cannot grant approval for the use of two or more of the units. Two or more associated units used for Short Stay Accommodation purposes are classed as Holiday Cabins and Chalets. Under the scheme, this use is not permitted in the zone on which the land is situated."
28 This advice from the respondent is, with respect, confusing. By definition, holiday cabins and chalets "means an attached, semi-detached, or detached residential type building occupied for holiday accommodation" for a period of not more than a total of three months. The definition is worded in the singular, not like the definition of grouped dwellings which requires two or more dwellings, presumably so that there can be planning control of the development of a single chalet or a single holiday cabin. Use as suggested by the respondent would result in a single residential type building used for short stay accommodation attached to six units used for permanent accommodation. Why short stay accommodation in such circumstances is not characterised as holiday cabins and chalets is not clear, and this use is prohibited in the "Residential" zone.
29 In this instance, however, the applicant is not concerned with a single dwelling or one grouped dwelling, but is arguing that he should be allowed to continue using the four grouped dwellings he leases as short stay accommodation.
30 The applicant refers to the letter of March 2003 circulated by the respondent when the policy was adopted. The letter says the "position adopted" by the respondent is that:
"premises used as a holiday house before the change of policy position ... would not require approval, given that they had been established during the period when planning control over this form of development had not been exercised."
(Page 9)
31 The applicant submits that the policy was introduced to deal with short stay accommodation proposals subsequent to March 2003 and was never intended to apply to dwellings already used for short stay purposes prior to that date.
32 From the submissions made to the Tribunal, it might be that one or more of the grouped dwellings was previously used as what came to be defined as a holiday house. The assertion is not supported by any evidence, but the respondent does not dispute the comments made by the applicant. In any event, the applicant is not proposing to continue the use of the dwellings as holiday houses, that is, as a permanent dwelling used from time to time as short stay accommodation. The use the applicant commenced in December 2004 and wants to continue is that of permanent short stay accommodation which would operate in conjunction with the premises on other lots that comprise the applicant's tourist accommodation business. In other words, the applicant is not proposing the continuation of a use that might have been happening prior to March 2003. He is proposing a different use.
33 It is not clear from the papers, but if the use prior to March 2003 was not as defined in holiday house but was just short stay accommodation, that does not help. Such a use does not enjoy the benefit of the policy and was never a lawful use in the absence a planning approval. From when TPS 19 was gazetted in 1998 the definition of short stay accommodation has included a requirement that, if in certain zones, including the "Residential" zone within which the subject land is situated, the use must be within a tourist accommodation development approved by the respondent. This has never been the situation. The Tribunal's view is that the policy is an attempt to deal with holiday houses as defined, that is, a dwelling that includes occasional short stay accommodation, not for the control of short stay accommodation as a permanent use in itself.
34 The applicant does not accept the contention that use as short stay accommodation changes the nature of the building. The applicant argues that the existing development is still clearly grouped dwellings and the only difference is the intended length of stay. This, it is said, does not change the character of the buildings from grouped dwellings to one designed for short stay accommodation.
35 The respondent refers to the original approval as grouped dwellings and the definition of dwellings as buildings "used, adapted, designed or intended to be used for the purpose of human habitation on a permanent basis … ".
(Page 10)
36 The Tribunal is of the view that short term holiday use is not simply a variation of the grouped dwelling use that was approved. TPS 19 differentiates between short stay accommodation, which is associated with tourist and holiday uses, and dwellings used on a permanent basis. It is not accepted that if a person does not change the appearance of a dwelling, they can, if they so wish, change the use of that dwelling to full time short stay tourist accommodation without reference to the planning controls because it might be a more commercially viable option. To change from a dwelling to short stay accommodation is a change of use and under cl 3.2.3 of TPS 19, a change of use must be granted planning consent by the respondent. Such an approval has not been obtained.
37 It is noted the applicant makes reference to other premises used as short stay accommodation, but the circumstances of these other uses coming into being is not known and the existence of them does not, of itself, provide a basis for setting aside the planning controls in place. Reference is also made to the service station on the lot adjoining to the north and the bakery over the road. The applicant says that because of the impact of these uses, short stay accommodation is more appropriate for the subject land. Under TPS 19, these are non-conforming uses on "Residential" zoned lots. As such, the Tribunal accepts the applicant's submission that that they have an impact on the current local character, but does not accept that the planning objectives and controls for the zone should therefore be set aside.
Conclusion
38 It is the applicant's submission that in issuing the s 10 notice, the respondent has misinterpreted the requirement to obtain approval under TPS 19. Examination of TPS 19 shows that if the use is "Holiday Cabins and Chalets", as asserted by the respondent, and there is an argument for this, such a use is not permitted in the "Residential" zone in which the subject land is situated. If the use is "Short Stay Accommodation" as defined, it is permitted in the "Residential" zone if part of a Tourist Accommodation Development approved by the respondent. No such approval has been granted. As set out above, the Tribunal has also found that the use the applicant wishes to make of the grouped dwellings does not attract the benefit of the policy.
Order
39 The application to have the notice issued under s 10 of the Town Planning and Development Act 1928 (WA) is dismissed and the order issued by the respondent under s 10 is affirmed.
(Page 11)
- I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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