MAGICHAND CAR WASH FRANCHISOR PTY LTD and TOWN OFCLAREMONT

[2015] WASAT 133

MAGIC HAND CAR WASH FRANCHISOR PTY LTD and TOWN OF CLAREMONT [2015] WASAT 133

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2015] WASAT 133
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:259/2015	Heard:	20 OCTOBER 2015
Coram:	MS L EDDY (MEMBER) MS D QUINLAN (MEMBER)	Delivered:	2/12/15
No of pages:	11	Judgment Part:	1 of 1
Result:	Preliminary question of whether the proposed development is a prohibited use under Town of Claremont Town Planning Scheme No. 3 answered 'Yes' and the proceeding is hereby dismissed
Category:	B
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Parties:	MAGIC HAND CAR WASH FRANCHISOR PTY LTD TOWN OF CLAREMONT
Catchwords:	Town planning ­ Development application ­ Preliminary issue ­ Proposed car wash ­ Town of Claremont Town Planning Scheme No 3 ­ Whether proposed use is a prohibited use in highway zone ­ Defined use classes ­ Whether car wash best fits the use class 'Service Trade' or 'Depot'
Legislation:	Interpretation Act 1984 (WA), s 18 Metropolitan Region Scheme State Administrative Tribunal Act 2004 (WA), s 29(3)(a) Town of Claremont Town Planning Scheme No. 3 cl 14(4), cl 14(5)
Case References:	APN Outdoors and City of Cockburn [2014] WASAT 32 Chiefari v Brisbane City Council [2005] QPELR 500 Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 Shire of Perth v O'Keefe (1964) 110 CLR 529 The Turnball Group v North Sydney Council (1998) 101 LGERA 354
Orders	As the Tribunal has determined that the proposed development comes within the 'Depot' use class, it is incapable of being approved under TPS 3 in the Highway zone. Therefore the Tribunal orders that, pursuant to s 29(3)(a) of the State Administrative Tribunal Act 2004 (WA):,1. The proceeding is dismissed.,2. The decision of the respondent made on 7 July 2015 to refuse development approval for a car wash at Lots 3 and 4, No 218, Stirling Highway, Claremont is affirmed.
Summary	This case concerned a development application seeking approval to develop and use a site for a car wash on Stirling Highway.  The Tribunal was called upon to determine a preliminary issue as to whether the proposed development was a prohibited use under Town of Claremont Town Planning Scheme No 3.,A 'car wash' is not a use mentioned in the list of use classes in Table 1 of Town of Claremont Town Planning Scheme No 3, neither is it a use specifically defined in Town of Claremont Town Planning Scheme No 3.  The respondent submitted that the proposed car wash best fits within the defined 'Depot' use class and that particular use class is a prohibited use in the Highway zone.  The applicant submitted that the proposed car wash best fits within the use class 'Service Trade' which is a permitted use within the Highway zone in Town of Claremont Town Planning Scheme No 3 and therefore capable of being approved.,After consideration of the applicable statutory interpretation principles to Town of Claremont Town Planning Scheme No 3, the Tribunal concluded that the appropriate use class was 'Depot'.  Therefore as 'Depot' is a prohibited use in the Highway zone, the application for review was dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MAGIC HAND CAR WASH FRANCHISOR PTY LTD and TOWN OF CLAREMONT [2015] WASAT 133 MEMBER : MS L EDDY (MEMBER)

MS D QUINLAN (MEMBER)

HEARD : 20 OCTOBER 2015 DELIVERED : 2 DECEMBER 2015 FILE NO/S : DR 259 of 2015 BETWEEN : MAGIC HAND CAR WASH FRANCHISOR PTY LTD

Applicant

AND

TOWN OF CLAREMONT
Respondent

Catchwords:

Town planning ­ Development application ­ Preliminary issue ­ Proposed car wash ­ Town of Claremont Town Planning Scheme No 3 ­ Whether proposed use is a prohibited use in highway zone ­ Defined use classes ­ Whether car wash best fits the use class 'Service Trade' or 'Depot'

Legislation:

Interpretation Act 1984 (WA), s 18

Metropolitan Region Scheme
State Administrative Tribunal Act 2004 (WA), s 29(3)(a)
Town of Claremont Town Planning Scheme No. 3 cl 14(4), cl 14(5)

Result:

Preliminary question of whether the proposed development is a prohibited use under Town of Claremont Town Planning Scheme No. 3 answered 'Yes' and the proceeding is hereby dismissed

Summary of Tribunal's decision:

This case concerned a development application seeking approval to develop and use a site for a car wash on Stirling Highway. The Tribunal was called upon to determine a preliminary issue as to whether the proposed development was a prohibited use under Town of Claremont Town Planning Scheme No 3.

A 'car wash' is not a use mentioned in the list of use classes in Table 1 of Town of Claremont Town Planning Scheme No 3, neither is it a use specifically defined in Town of Claremont Town Planning Scheme No 3. The respondent submitted that the proposed car wash best fits within the defined 'Depot' use class and that particular use class is a prohibited use in the Highway zone. The applicant submitted that the proposed car wash best fits within the use class 'Service Trade' which is a permitted use within the Highway zone in Town of Claremont Town Planning Scheme No 3 and therefore capable of being approved.
After consideration of the applicable statutory interpretation principles to Town of Claremont Town Planning Scheme No 3, the Tribunal concluded that the appropriate use class was 'Depot'. Therefore as 'Depot' is a prohibited use in the Highway zone, the application for review was dismissed.

Category: B

Representation:

Counsel:

Applicant : M Gregory
Respondent : C Slarke

Solicitors:

Applicant : Castledine Gregory
Respondent : McLeods

Case(s) referred to in decision(s):

APN Outdoors and City of Cockburn [2014] WASAT 32
Chiefari v Brisbane City Council [2005] QPELR 500
Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218
North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50
Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Shire of Perth v O'Keefe (1964) 110 CLR 529
The Turnball Group v North Sydney Council (1998) 101 LGERA 354

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 On 14 April 2015, a development application was made to the Town of Claremont (respondent) in relation to Lots 3 and 4, No 218 Stirling Highway, Claremont (site) seeking approval to develop and use the site for a car wash business (proposed development).

2 On 7 July 2015, the respondent refused the proposed development on the basis of the respondent's view that a car wash business fits within a particular use class and that particular use class is a prohibited use in the Highway zone. The applicant has applied to the Tribunal for a review of the respondent's decision.

3 A preliminary issue has arisen for determination as follows:

Is the proposed development a prohibited use under Town of Claremont Town Planning Scheme No 3 (TPS 3).

4 The parties have greatly assisted the Tribunal by providing an agreed bundle of documents and agreed facts. Both parties provided written and oral submissions. The applicant has also provided two witness statements with some further detail of the proposed development.

Background facts relevant to the preliminary issue

5 The site is predominantly zoned Urban under the Metropolitan Region Scheme. It is zoned Highway under TPS 3.

6 The proposed development is a car wash business which would involve interior and exterior cleaning of vehicles manually by employees. The proposed development is not a self­serve car wash and customers would not participate in the cleaning at any point in the process. Operations at the proposed development would be performed as follows:

a) customers leave their vehicle to an attendant and wait in the lounge area; and

b) the external and interior cleaning would be performed in separate designated bays by employees using hand­held equipment such as high pressure hoses, sponges, vacuum, fabric steam cleaner and sander/polisher.

7 A 'car wash' is not a use mentioned in the list of use classes in Table 1 of TPS 3, neither is it a use specifically defined in TPS 3. The applicant submits that the proposed development best fits within the use class 'Service Trade' which is a permitted use within the Highway zone in TPS 3. The respondent submits that the proposed development best fits within the use class 'Depot' which is a prohibited use within the Highway zone in TPS 3.

8 The parties were in agreement that the only two possibly relevant use classes in TPS 3 were 'Depot' or 'Service Trade'. If the Tribunal determines that the appropriate use class is 'Depot' then the proposed development is a prohibited use in the Highway zone and this application for review must be dismissed. If the Tribunal determines that the appropriate use class is 'Service Trade' then the proposed development is a permitted use in the Highway zone and therefore capable of being approved and consequently the application for review could progress to a determination on the merits.

TPS 3

9 Both 'Depot' and 'Service Trade' are defined in TPS 3 as follows:

'Depot' means any part of any land or building used for the maintenance or storage (in the course of transfer from place to place or otherwise) of vehicles, goods or materials of any kind including, without limiting the generality of the foregoing, a builder's yard. The word does not include a warehouse;

'Service Trade' means any part of any land or building used for the repair, servicing or maintenance of goods, generally of a readily portable nature, and without limiting the generality of the foregoing, includes the premises of a bootmaker and a bicycle repair shop[.]

10 Somewhat unusually for a local planning scheme, TPS 3 does not provide for a general discretion to grant development approval in circumstances where a use is not listed in the zoning table. If a use is not listed it is deemed to be prohibited. Clauses 14(4) and 14(5) of TPS 3 provide:

(4) Where in Table No. 1 a particular Use Class is mentioned, that class is deemed to be excluded from any other use Class which by its more general terms would otherwise include that particular use.

(5) If a particular use is not mentioned in the list of Use Classes in Table No. 1 or is not included in the general terms of any of the Use Classes that use shall be deemed to be prohibited.

Interpretation of TPS 3

11 The starting point for the interpretation of TPS 3 is that it has the force of law and the ordinary principles of statutory interpretation apply.

12 Section 18 of the Interpretation Act 1984 (WA) provides:

In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.

13 The High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] found that the primary objective of statutory construction is to interpret the relevant provision so that it is consistent with the language and purpose of the whole of the statute. The High Court explained further at [78]:

… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

14 The leading text by Pearce and Geddes, Statutory Interpretation in Australia (8^th ed, 2014) at paragraph 2.6, helpfully summarises the 'modern approach' as follows:

… The modern approach to statutory interpretation has two aspects. First, it provides that the statutory context is to be considered from the beginning of the interpretive process, not merely when ambiguity has been observed. The approach therefore has a broader application than the statutory provisions concerning the use of extrinsic materials … The second aspect of the modern approach is that 'context' has a wide meaning, including the 'mischief' that is discoverable by the legitimate use of extrinsic materials.

15 More specifically to the town planning context, in Chiefari v Brisbane City Council [2005] QPELR 500, Wilson SC DCJ held at [9] and [10]:

These definitions are included in [sic] to provide an explanation of the meaning of terms used in the Scheme. … They will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.

That said, the words being defined are commonplace and it is obvious a careful attempt has been made in the definitions part of City Plan to circumscribe the meanings those common words are to have throughout it. Both parties accepted that, within the confined arena of a section of a planning scheme devoted to definitions of particular words and phrases, ordinary principles of statutory constructions ought to apply. Statements in other cases in this jurisdiction suggesting a less precise or insistent method of construing planning schemes will apply where, as often happens, parties can point to different parts or passages within those schemes which might touch a particular proposal; but when, as here, reference is being made to a small but central part of the Scheme which ascribes meanings to the terms it uses, general principles of statutory constructions should apply.

16 The Tribunal found in Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238 at [40]:

The latitude and flexibility that has been suggested with respect to the interpretation of planning instruments should not extend to, in effect, 'rewriting' DPS 2.

17 In circumstances where a proposal appears to fall within the general terms of more than one use class, the Tribunal has adopted the 'best fit' approach: APN Outdoors and City of Cockburn [2014] WASAT 32 (APN Outdoors) at [19] and [24]. The Tribunal in APN Outdoors cited Planning and Development, Queensland (Thomson Reuters Looseleaf Service at [1350]) to sound a note of caution that:

… the 'best fit' approach should not be used 'in order to strain a planning scheme definition to comprehend some particular proposal'. To do so would be to grant omniscience to the drafters of the scheme.

18 The applicant referred the Tribunal to the High Court decision in Shire of Perth v O'Keefe (1964) 110 CLR 529 (O'Keefe) at [535] where it was said:

… 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. …

19 The applicant submits that, following O'Keefe, a broad approach to use classification was adopted in North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 (Boyts Radio) at [59]. The respondent brought two further cases to the Tribunal's attention, both of which found that the broad and liberal approach to interpretation found in Boyts Radio and O'Keefe was limited to an existing use and did not apply to a development application: see The Turnball Group v North Sydney Council (1998) 101 LGERA 354 at 366 and Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 at 221.

The applicants argument

20 The applicant argues that the best fit for the proposed development is 'Service Trade' rather than 'Depot' and urges the Tribunal to utilise the purposive approach to interpretation. The applicant submits further that there are no town planning reasons for regulating the use by prohibiting it within the Highway zone, and the proposed development would reasonably be expected within the Highway zone, not the Light Industrial zone.

21 The respondent argues against this approach, suggesting this is putting the 'cart before the horse' as the applicant is urging the Tribunal to consider the merits of the proposed development before it has been determined that it is even permitted to be approved in the Highway zone.

22 The applicant also submits that this approach to interpreting the use classes is founded in cl 14(5) of TPS 3 where it is stated that in circumstances where a particular use is not listed, the Tribunal must consider whether the proposed development is included in the general terms of any of the use classes.

The respondent's argument

23 The respondent argues that the proposed development falls fairly and squarely within the terms of the 'Depot' use class, and only within the general terms of the 'Service Trade' use class, and therefore the best fit is the 'Depot' use class.

24 The respondent submits that the proposed development may constitute 'maintenance' in both the 'Service Trade' and 'Depot' use classes. Further, whilst vehicles could be considered to be 'goods' in the 'Service Trade' use class, the respondent contends that motor vehicles are not goods which are generally of a readily portable nature. Moreover, 'vehicles' are explicitly provided for in the 'Depot' use class and that is the best fit.

25 The respondent conceded in oral submissions that 'goods, generally of a readily portable nature' meant that the goods referred to in 'Service Trade' did not always have to be readily portable. However, the respondent submitted that as the proposed development needed to fall within this exception in 'Service Trade', this was another reason why the best fit was 'Depot'.

26 The respondent submits that the plain and ordinary meaning of the relevant language used in TPS 3 within its context is clear and unambiguous and there is no need to resort to a purposive approach.

Is the proposed development a prohibited use under TPS 3

27 The Tribunal does not need to conduct a meticulous examination of the details of the proposed development to understand that the proposed development is a service car wash business that is not of the self­serve variety.

28 TPS 3 is a town planning scheme that controls development within the town. It is aimed at ensuring orderly and proper planning. Relevant to the present matter, the particular context is that TPS 3 makes provision for what types of use classes are capable of being approved in each of the zones, including the Highway zone.

29 The applicant submits that the dictionary definitions of 'service', 'trade' and 'depot' should be considered when interpreting the relevant use classes in TPS 3. However, the relevant use classes in TPS 3 are defined as meaning expressly stated things. TPS 3 does not use the style of definition that offers examples of what a use class includes. The approach suggested by the applicant is simply not open as these terms have been given specifically defined meanings in TPS 3.

30 The applicant urges the Tribunal to take what it calls a purposive approach to interpretation which, it says, would result in 'Service Trade' being the best fit. However, we agree with the respondent's submission that the applicant's approach appears outcome driven and does not accord with the established principles of statutory interpretation. It may be open for the Tribunal, in interpreting TPS 3 and applying ordinary principles of statutory interpretation, to correct obvious drafting errors, avoid grammatical absurdity, and apply context as well as purpose. However, it is not open for the Tribunal to rewrite TPS 3 to achieve an outcome. We do not accept that it is open to us to look to which zone we think this particular development might logically be placed and, from there, work out how the proposed development should be classified in the land use table.

31 The type of car wash proposed is a service business within the ordinary meaning of that term. However, we are not determining whether the proposed development is a service business as that term is ordinarily understood. We are required to consider whether the proposed development fits within the general terms of any of the use classes that are identified and defined in TPS 3.

32 The parties both agree that a car wash can be considered to be 'maintenance' of a vehicle. The Tribunal accepts that as correct. 'Maintenance' appears in both 'Service Trade' and 'Depot'. 'Depot' includes maintenance of a 'vehicle'. 'Service Trade' includes repair, service and maintenance of 'goods'. A car is a type of 'goods'. We are satisfied that the proposed development could arguably fit within the general terms of both 'Service Trade' and 'Depot'. Where it does, as here, fit within the general terms of more than one use class, we are required to determine which is the best fit use class.

33 'Service Trade' relates to goods, and is limited to 'goods, generally of a readily portable nature'. We are not satisfied that vehicles are readily portable goods. They can travel under their own steam, and can be transported, but are not readily transportable. Even though the limitation in 'Service Trade' is only 'generally' readily portable goods, so that it is arguable that a vehicle could come within that description, it is not an obvious or easy fit.

34 'Service Trade' includes repair, service and maintenance of goods. 'Depot' refers to the maintenance of vehicles but does not mention repair or service. The repair or service of a vehicle comes expressly within the use class 'Motor Repair Station'.

35 In the Tribunal's view it is pertinent that the word 'vehicle' is explicit in the definition of 'Depot'. There is no specific reference to 'vehicle' in 'Service Trade', only 'goods'. The categories of use classes in TPS 3 include a number of uses specifically related to vehicles; for instance, 'Car Park', 'Depot', 'Motor Repair Station', 'Drive Through', 'Service Station', 'Transport Depot' and 'Vehicle Sales'. We also note that vehicles are expressly excluded from the use classes 'Landscaped Open Space' and 'Shop'. This suggests an intention to generally deal with uses relating to vehicles separately to, or distinct from, other goods. The large size of vehicles as compared to most common goods, the space they take up, the noise, fumes and other characteristics of vehicles provide a logical basis why uses relating to vehicles might be expected to be dealt with differently in TPS 3 than uses dealing with other goods.

36 For these reasons the Tribunal finds that the proposed development best fits within the 'Depot' use class. 'Depot' is a prohibited use in the Highway zone. Consequently the Tribunal's answer to the preliminary question is 'Yes', the proposed development is a prohibited use under TPS 3.

Orders

As the Tribunal has determined that the proposed development comes within the 'Depot' use class, it is incapable of being approved under TPS 3 in the Highway zone. Therefore the Tribunal orders that, pursuant to s 29(3)(a) of the State Administrative Tribunal Act 2004 (WA):

1. The proceeding is dismissed.

2. The decision of the respondent made on 7 July 2015 to refuse development approval for a car wash at Lots 3 and 4, No 218, Stirling Highway, Claremont is affirmed.

I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS L EDDY, MEMBER