Marshall and City Of Rockingham
[2006] WASAT 249
•22 AUGUST 2006
MARSHALL and CITY OF ROCKINGHAM [2006] WASAT 249
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 249 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:12/2006 | 15 MAY 2006 | |
| Coram: | MR P McNAB (MEMBER) | 22/08/06 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Preliminary issues answered "Yes" Development was a home business and the City and the Tribunal have power to vary the requirement stipulated in the City of Rockingham Town Planning Scheme No 2 | ||
| B | |||
| PDF Version |
| Parties: | ARTHUR PATRICK AND JEANETTE ELLEN MARSHALL CITY OF ROCKINGHAM |
Catchwords: | Town planning Development application Preliminary questions Whether proposed business operation a home business or an office Number of proposed employees exceeded maximum permitted under town planning scheme Limitation expressed in both the definitions clause of Scheme and listed as a general requirement Relationship between definition and specific requirement Whether limitation a standard or requirement that may be varied Interpretation of Schemes drafted by town planners Whether New South Wales authority ought to be applied Use of Model Scheme Text Textual indication found permitting variation notwithstanding fixed definition Proposed operation found to be a home business Variation in maximum number of employees permissible Words and phrases: "home business"; "office"; "requirement" |
Legislation: | City of Rockingham Town Planning Scheme No 2 cl 4.16, cl 4.16.2, cl 4.16.2(a), cl 4.20.1, Pt 4, Sch 1 Town Planning Regulations 1967 (WA) Appendix B |
Case References: | Arnold and Commissioner for Land and Planning [2001] ACTAAT 19 Benz v Shire of Denmark [2004] WATPAT 30 Burgess and Commissioner for Land and Planning [2001] ACTAAT 32 Chiefari v Brisbane City Council [2005] QPELR 500 Hope v Bathurst City Council (1980) 144 CLR 1 Jensen v Minister for Planning [2002] ACTAAT 29 Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPELR 648 Napoli v City of Stirling [2004] WATPAT 81 North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) 71 LGRA 222 (NSWCA) Penny v Cooma-Monaro Shire Council (2003) 125 LGERA 353 PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144 Puzey v Commissioner of Taxation (2003) 201 ALR 302 Riley v City of Joondalup [2004] WATPAT 61 Spectator Investments Pty Ltd and City of Joondalup [2005] WASAT 299 Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 (NSWCA) Woollahra Municipal Council v Carr (1985) 62 LGRA 263 (NSWCA) Nil |
Orders | The orders of the Tribunal are: ,1. The preliminary questions are answered in terms of the questions and answers set out in the reasons of the Tribunal, namely:,Q1. As to the proper use classification of the proposal, is the proposed use or development a "Home Business" under TPS 2?,A. Yes, except as to subparagraph (a) of the definition.,Q2. If the proposal is otherwise found to be a "Home Business", is there nevertheless power to vary one restriction exceeded by the proposal, namely, that relating to the maximum number of persons that may be found on site (that is, subparagraph (a): "[must] not employ more than 2 people not members of the Occupier's household")?,A. Yes. |
Summary |
- Applicants
AND
CITY OF ROCKINGHAM
Respondent
Catchwords:
Town planning - Development application - Preliminary questions - Whether proposed business operation a home business or an office - Number of proposed employees exceeded maximum permitted under town planning scheme - Limitation expressed in both the definitions clause of Scheme and listed as a general requirement - Relationship between definition and specific requirement - Whether limitation a standard or requirement that may be varied - Interpretation of Schemes drafted by town planners - Whether New South Wales authority ought to be applied - Use of Model Scheme Text - Textual indication found permitting variation notwithstanding fixed definition - Proposed operation found to be a home business - Variation in maximum number of employees permissible - Words and phrases: "home business": "office": "requirement"
Legislation:
City of Rockingham Town Planning Scheme No 2 cl 4.16, cl 4.16.2, cl 4.16.2(a), cl 4.20.1, Pt 4, Sch 1
Town Planning Regulations 1967 (WA) Appendix B
Result:
Preliminary issues answered "Yes"
Development was a home business and the City and the Tribunal have power to vary the requirement stipulated in the City of Rockingham Town Planning Scheme No 2
Category: B
Representation:
Counsel:
Applicants : Mr A Roberts
Respondent : Mr P Quinlan
Solicitors:
Applicants : Minter Ellison
Respondent : Watts Woodhouse
Case(s) referred to in decision(s):
Arnold and Commissioner for Land and Planning [2001] ACTAAT 19
Benz v Shire of Denmark [2004] WATPAT 30
Burgess and Commissioner for Land and Planning [2001] ACTAAT 32
Chiefari v Brisbane City Council [2005] QPELR 500
Hope v Bathurst City Council (1980) 144 CLR 1
Jensen v Minister for Planning [2002] ACTAAT 29
Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPELR 648
Napoli v City of Stirling [2004] WATPAT 81
North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) 71 LGRA 222 (NSWCA)
Penny v Cooma-Monaro Shire Council (2003) 125 LGERA 353
PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144
Puzey v Commissioner of Taxation (2003) 201 ALR 302
Riley v City of Joondalup [2004] WATPAT 61
Spectator Investments Pty Ltd and City of Joondalup [2005] WASAT 299
Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 (NSWCA)
Woollahra Municipal Council v Carr (1985) 62 LGRA 263 (NSWCA)
Case(s) also cited:
Nil
Summary of the Tribunal's decision
1 This matter came before the Tribunal to answer two preliminary questions concerning the Marshalls' anticipated development, namely a proposal for a commercial operation to be conducted out of a private dwelling house in Rockingham.
2 The first question related to the proper characterisation of the proposed business. The Tribunal considered the nature of the proposed business operation and concluded that it met the definition of a "home business" under the City of Rockingham's Town Planning Scheme, except in one respect.
3 The City's Town Planning Scheme definition placed a limit on the number of non-household employees that could be accommodated in a home business, and this proposal exceeded that limitation. These limitations were repeated elsewhere in the City's Town Planning Scheme as general development requirements.
4 However, the City's Town Planning Scheme permitted standards and requirements to be lifted or varied.
5 The Tribunal had to consider whether the power of variation applied where the definition of "home business" in the City's Town Planning Scheme had a clear, fixed requirement (as here).
6 After considering various interstate and local tribunal and court decisions and the sources of and drafting of the City's Town Planning Scheme, the Tribunal concluded that, on balance, the limitation was capable of variation even though it appeared fixed in a definition.
7 The decision meant that the City of Rockingham would have to reconsider its decision on the merits of Mr and Mrs Marshall's proposal.
Introduction
8 The matter before the Tribunal is an application for development or planning approval for what was said to be a "home business", namely, an approval sought for a business operation in a dwelling house in a residential area, an operation concerned principally with the organisation of the maintenance and repair of rental properties which Mr and Mrs Marshall (applicants) own in the Rockingham area.
9 The matter was heard as a preliminary issue on two questions, as follows.
10 The first issue relates to the proper use classification of the proposal. In particular, is the proposed use or development a "home business" under the City of Rockingham's Town Planning Scheme No 2 (TPS 2 or Scheme)?
11 The second is: if the proposal were found to be a "home business", whether there is power to vary the one restriction exceeded by the proposal, namely, that relating to the maximum number of persons that may be found on site (that is, the occupier "[must] not employ more than 2 people not members of the Occupier's household").
The applicants' proposal
12 The proposal relates to land comprised of a single dwelling at Lot 1496 (No 4) Cambernon Green, Port Kennedy, in the City of Rockingham (City).
13 It is proposed that Mr Robert Owens (an employee of Mr Marshall), being the sole occupier of the subject land, and four additional persons (not being part of the household of the occupier) who are to be employed there, will constitute the business.
14 They will be physically located in the games room of the subject land which is to be used for office purposes. Additionally, one-third of the garage is to be used for purposes associated with the business, namely, the storage and maintenance of equipment (including a utility vehicle and trailer).
The planning framework
15 The Tribunal was taken to the four critical definitions in TPS 2, namely, "home business", "home occupation", "home office" and "office", and further to the Zoning Table and cl 4.16 setting out the additional discretionary criteria for "home occupations" and "home businesses".
16 Clause 4.16.2(a), subparagraphs (i) to (vi), mirror the definition of "home business" set out below. That clause requires the City to be satisfied that these conditions have been met; it also refers to both the "Home Business Policy" (a document not yet in existence) and to various amenity factors which are to be considered in relation to decision-making.
17 The definitions in Schedule 1 to TPS 2 are as follows:
"'home business' means a business, service or profession carried out in a dwelling or on land around a dwelling by an occupier of the dwelling which —
(a) does not employ more than 2 people not members of the Occupier's household;
(b) will not cause injury to or adversely affect the amenity of the neighbourhood;
(c) does not occupy an area greater than 50 square metres;
(d) does not involve the retail sale, display or hire of goods of any nature;
(e) in relation to vehicles and parking, does not result in traffic difficulties as a result of the inadequacy of parking or an increase in traffic volumes in the neighbourhood, and does not involve the presence, use or calling of a vehicle more than 3.5 tonnes tare weight; and
(f) does not involve the use of an essential service of greater capacity than normally required in the zone;
'home occupation' means an occupation carried out in a dwelling or on land around a dwelling by an occupier of the dwelling which —
(a) does not employ any person not a member of the occupier's household;
(b) will not cause injury to or adversely affect the amenity of the neighbourhood;
(c) does not occupy an area greater than 20 square metres;
(d) does not display a sign exceeding 0.2 square metres;
(e) does not involve the retail sale, display or hire of goods of any nature;
(f) in relation to vehicles and parking, does not result in the requirement for a greater number of parking facilities than normally required for a single dwelling or an increase in traffic volume in the neighbourhood, does not involve the presence, use or calling of a vehicle more than 2 tonnes tare weight, and does not include provision for the fuelling, repair or maintenance of motor vehicles; and
(g) does not involve the use of an essential service of greater capacity than normally required in the zone;
'home office' means a home occupation limited to a business carried out solely within a dwelling by a resident of the dwelling but which does not entail clients or customers travelling to and from the dwelling, involve any advertising signs on the premises or require any external change to the appearance of the dwelling;
…
'office' means premises used for administration, clerical, technical, professional or other like business activities;"
18 These definitions originate from the Town Planning Regulations 1967 (WA) Appendix B, Model Scheme Text.
19 The subject land is zoned "Residential" and accordingly, under the Zoning Table, a home business and a home occupation (but not a home office) are listed as discretionary (D) uses (that is, they may be carried out with the City's planning permission). An office is a prohibited (X) use in the Zone.
Is there a home business?
20 On the face of it, on the facts which are either agreed or are largely common ground, the applicants' proposal meets the requirements for a home business in all respects except that it "employ[s] more than [two] people not members of the Occupier's household". That conclusion is reached by consideration of the following matters concerning the nature of a home business.
21 The Encyclopaedic Australian Legal Dictionary defines a "Home business", in relation to "Trade and commerce", as: "[a] business conducted from a person's place of residence". What constitutes a "business" is discussed by the Full Court of the Federal Court of Australia in Puzey v Commissioner of Taxation (2003) 201 ALR 302, at 313, as follows:
"[T]here may be a business, even if that business is small in scope … A person may carry on a business, notwithstanding that the person had some other activity, such as full-time employment. It is not necessary in concluding that a business is carried on that the acts to be undertaken are acts of the person seeking to establish he or she is carrying on a business. So a person may appoint another to take the steps which constitute the business activity …" (Internal citations omitted.)
22 Their Honours there applied, amongst other authority, the well known case of Hope v Bathurst City Council (1980) 144 CLR 1 which stands for the proposition that a business is a "commercial enterprise in the nature of a going concern; [and includes] activities engaged in for the purpose of profit on a continuous and repetitive basis".
23 In Arnold and Commissioner for Land and Planning [2001] ACTAAT 19, the ACT Tribunal, at [39], stated that:
"[I]t is possible to deduce, from the [relevant ACT planning framework], that the concept is intended to provide for relatively small business activities conducted from residential premises. The fact that the [planning framework] specif[ies] a maximum of 40 [square metres] of floor space and a maximum of three workers including at least one bona fide resident can be taken as indicative of the scale of business activity that was envisaged. There is however no specific provision that residential use must remain as the predominant use."
24 In Jensen v Minister for Planning [2002] ACTAAT 29, at [35], the same Tribunal noted:
"Home businesses are of many different kinds. Some involve only the provision of professional services. Others involve the production of goods, wholesaling and retailing. Some of these would require materials to work from, and others would result in the production of materials for sale. … Many home businesses require a motor vehicle, and a number may well require a trailer also for the purpose of transporting goods associated with the business."
25 See also Burgess and Commissioner for Land and Planning [2001] ACTAAT 32 at [74] which followed Arnold and Commissioner for Land and Planning, saying that "the concept is intended to provide for relatively small-scale business activities conducted from residential premises but which are larger than home occupations and which may involve non-resident workers."
26 The Tribunal is satisfied that, prima facie, the proper use classification for the proposed development would be, but for compliance with the limitation against employing more than two people not members of the occupier's household, that of a "home business" under TPS 2. Thus, it would follow that if the limitation on employees cannot be varied or removed, then the proper use classification would be that of an "office", as the premises are clearly proposed to be "used for administration, clerical, technical … or other like business activities". As explained above, that latter use is a prohibited use in the "Residential" zone.
Can the limitation on employees be varied?
27 Clause 4.16.2 dealing with home businesses (referred to above) is to be found in Part 4 of TPS 2 (General Development Requirements). This clause does not find a precise mirror in the Model Text Scheme other than in an indicative way, as follows:
"Part 5 — General development requirements
([Explanatory note] This Part sets out the general requirements which apply to land use and development within the Scheme area and the specific requirements which apply to particular uses and forms of development, such as site requirements, access, parking, building design, setbacks and landscaping, for residential, industrial, rural and other uses.
The site and development requirements should be inserted after clause 5.6. …)"
28 So far as is material, cl 4.20.1 provides as follows:
"[I]f a development is the subject of an application for planning approval and does not comply with a standard or requirement prescribed under the Scheme, the Council may, notwithstanding the non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit."
29 This clause also originates in the Model Scheme Text: see cl 5.5.
30 In New South Wales, the orthodox position may be stated to be - at the risk of some oversimplification - that a decision-maker must treat the definition sections of planning schemes and instruments as, in effect, not amenable to amendment or variation by this route. Thus, definitions are external to or precursors of the actual standards or requirements themselves, and it is only the latter which may be varied pursuant to such clauses: Woollahra Municipal Council v Carr (1985) 62 LGRA 263 (NSWCA); Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 (NSWCA); North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) 71 LGRA 222 (NSWCA). And see the analysis in Penny v Cooma-Monaro Shire Council (2003) 125 LGERA 353 (Pain J).
31 McHugh JA said in Woollahra Municipal Council v Carr, at 269:
"The [proposed] development could not be carried out even if that requirement was eliminated, because there is no other relevant category in the [scheme] which permits a dental surgery with more than three employees in this residential zone. The use of premises as a dental surgery with more than three employees is not the use of a building for professional consulting rooms. It is not within any permitted use or purpose as defined in the Planning Scheme. The respondent's submission requires the rewriting not of a "development standard" but of the definition of a permitted use - "professional consulting rooms". I have reached this conclusion with no enthusiasm, because it places a premium on form and penalises the substance of the matter."
32 The New South Wales position has received some criticism: see, for example, Edgar, Andrew "Standard deviation? The problematic precondition to SEPP 1" (2002) 19 EPLJ 226, 233-234.
33 The view taken in both this Tribunal and its predecessor, generally speaking, seems to favour more flexibility than the New South Wales position would appear to permit: see Benz v Shire of Denmark [2004] WATPAT 30; Riley v City of Joondalup [2004] WATPAT 61; Napoli v City of Stirling [2004] WATPAT 81 (where the President discusses the New South Wales cases); but cf O'Donovan and Town of Vincent [2005] WASAT 120 and Spectator Investments Pty Ltd and City of Joondalup [2005] WASAT 299 (where Senior Member Parry applies and discusses the New South Wales cases).
34 In Chiefari v Brisbane City Council [2005] QPELR 500, Wilson SC DCJ said, at 502 (emphasis added):
"[The definitions under review] are included in [sic] to provide an explanation of the meaning of terms used in the Scheme. They are obviously of general application and intended to cover a variety of circumstances. 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."
35 See also PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144 at 158 to similar effect speaking generally of town planning schemes, and see further Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPELR 648 at [25]: "[P]lanning schemes are to be construed broadly, rather than pedantically or narrowly, and with a sensible practical approach"; "[A]lthough planning schemes have the force of law, they are largely the work of town planners, and are not drawn with the precision of an Act of Parliament". It has been relatedly observed on more than one occasion that "[p]lanning instruments are often poorly drafted but [tribunals] must make some sense of them": Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390 at 402.
36 Nevertheless, because Schemes have the force of law, orthodox legal principles of interpretation should prima facie apply in their construction, and Woollahra Municipal Council v Carr ought to be highly persuasive. Moreover, as we have seen, the Model Scheme Text is the direct origin for all of the clauses under review (other than, significantly, as to the content of cl 4.16.2), and that model instrument is drafted, with some precision, by parliamentary counsel.
37 The Tribunal has not found the resolution of this matter easy. Although the matter is not free from doubt, the Tribunal has concluded that, on the whole, the better view is that the parallel limitation imposed by both the definition clause and the development requirement clause (cl 4.16.2) indicates that the drafter of this instrument favoured (and, importantly, textually so indicated) some flexibility in the Scheme and intended that this was a "requirement" that could be varied by the City (notwithstanding the fixed definition), thus permitting the possibility of a home business with "more than 2 [employees] not members of the Occupier's household".
38 This conclusion would be as a result of reading TPS 2 "as a whole and [applying it] in a practical and commonsense, and not an overly technical way, and in a fashion which [would] best achieve [its] evident purpose."
39 The City must therefore, in effect, reconsider the applicants' proposal upon its merits.
Answers to preliminary questions and orders of the Tribunal
40 The answers to the preliminary questions, therefore, are as follows:
Q1. As to the proper use classification of the proposal, is the proposed use or development a "Home Business" under TPS 2?
A. Yes, except as to subparagraph (a) of the definition.
Q2. If the proposal is otherwise found to be a "Home Business", is there nevertheless power to vary one restriction exceeded by the proposal, namely that relating to the maximum number of persons that may be found on site (that is, subparagraph (a): "[must] not employ more than 2 people not members of the Occupier's household")?
A. Yes.
Orders
41 Consequently, the orders of the Tribunal are:
1. The preliminary questions are answered in terms of the questions and answers set out in the reasons of the Tribunal, namely:
Q1. As to the proper use classification of the proposal, is the proposed use or development a "Home Business" under TPS 2?
A. Yes, except as to subparagraph (a) of the definition.
Q2. If the proposal is otherwise found to be a "Home Business", is there nevertheless power to vary one restriction exceeded by the proposal, namely, that relating to the maximum number of persons that may be found on site (that is, subparagraph (a): "[must] not employ more than 2 people not members of the Occupier's household")?
A. Yes.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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