MARTIN and CITY OF KALAMUNDA
[2019] WASAT 127
•6 DECEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MARTIN and CITY OF KALAMUNDA [2019] WASAT 127
MEMBER: MR S WILLEY, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 6 DECEMBER 2019
FILE NO/S: DR 30 of 2019
BETWEEN: ROHAN JAMES MARTIN
Applicant
AND
CITY OF KALAMUNDA
Respondent
Catchwords:
Town planning - Development application - Preliminary question - Land use classification - Principles of interpretation of planning schemes - Whether proposed use is properly classified as 'home business' or 'light industry' - Gunsmith - Amenity - Resident fears and concerns
Legislation:
Interpretation Act 1984 (WA), s 5, s 18
Liquor Control Act 1988 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, reg 8(1)(c), reg 10(4)
Planning and Development Act 2005 (WA), s 87(4), s 256, s 257B(2), Pt 5
Shire of Kalamunda Local Planning Scheme No 3, cl 1.4, cl 1.5(d), cl 3.3(6), cl 4.2.1, cl 4.3, cl 4.3.2, cl 4.4, cl 4.4.1, Sch 1
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Preliminary issue determined
Summary of Tribunal's decision:
Mr Rohan Martin (applicant) seeks approval to operate what he says is a 'home business' in a shed next to his dwelling. The proposed use involves repairs to rifles or what may be commonly referred to as the work of a gunsmith. No testing of firearms will occur at the dwelling and no sales are involved. No handguns will be repaired; only rifles.
The City of Kalamunda (City) refused the development application on the basis that the proposed use is a 'light industry' which is a prohibited use in the Residential zone. The City's position was that the definitions of 'light industry' (and 'industry') in the Shire of Kalamunda Local Planning Scheme No 3 (LPS 3) were more specific in that they referred to the activities in question and therefore should be preferred.
The preliminary issue for the Tribunal is the proper classification of the proposed use. Both of the uses contested for (home business and light industry) are premised on there being no adverse amenity impacts arising from the proposed activities. The City's expert evidence was that there would be no adverse amenity impacts arising from the proposed use other than the fear and concerns that may result from a gunsmith being located in the locality.
The Tribunal found that any fears and concerns of residents, while understandable, were not reasonable in the circumstances. No evidence was presented that would suggest that the presence of a home business in the nature of gunsmith in the locality would result in an increased safety risk for the community.
The Tribunal considered that reading and applying LPS 3 as a whole, the proposed use was a home business and not a light industry. This was primarily due to the scale of the proposed activities.
Category: B
Representation:
Counsel:
| Applicant | : |
| Respondent | : |
Solicitors:
| Applicant | : | In Person |
| Respondent | : | In Person |
Case(s) referred to in decision(s):
ALH Group Property Holdings Pty Ltd and Presiding Member of the Metro Central Joint Development Assessment Panel [2018] WASAT 63
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19
Johnson v Minister for Planning [2018] WASC 334
Liu v Fairfield City Council [1996] NSWLEC 272; (1996) 130 LGERA 230
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211
Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rando and City of Gosnells [2019] WASAT 6; (2019) 96 SR (WA) 247
Re Shire of Mundaring; Eex parte Solomon [2007] WASCA 132
Sanders v City of South Perth [2019] WASC 226
Self Help Addiction Resource Centre Inc v Glen Eira City Council [2005] VCAT 2647; (2005) 145 LGERA 124
Snashall v Sydney City Council (1981) 46 LGRA 88
van der Feltz v City of Stirling [2009] WASC 142; 137 LGERA 236
Warr and Town of Cambridge [2019] WASAT 27; (2019) 97 SR (WA) 27
Warr v Town of Cambridge [2019] WASC 362
West Australian Shalom Group Inc and City of Swan [2019] WASAT 80
Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106; (2017) 219 LGERA 397
Woolworths Ltd and City of Joondalup [2009] WASAT 41; (2009) 61 SR (WA) 38
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is essentially a land use classification question which is to be determined as a preliminary issue on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
The preliminary issue is the proper classification of the proposed land use under the Shire of Kalamunda Local Planning Scheme No 3 (LPS 3).
Mr Rohan James Martin (applicant) seeks approval to 'carry out gunsmith works from shed/workshop on [Lot 286]' (the proposed use).
The respondent considers that the proposed use is classified as a 'Industry - Light' (a 'light industry') which is a prohibited use in the relevant zone. The applicant considers that the proposed use is properly classified as 'home business' for the purposes of LPS 3. A home business is capable of approval on Lot 286; a light industry is not.
For the reasons that follow the proper classification of the proposed use is as a 'home business' and it is therefore a use that is capable of approval under LPS 3.
Agreed facts
For the purposes of determining the preliminary issue the following facts have been agreed.
The subject land is Lot 286 (HN 43) Golden Crescent, High Wycombe (Lot 286). Lot 286 contains an existing residential dwelling and associated outbuilding and is zoned Residential with a coding of R20 pursuant to LPS 3. Map 2 of LPS 3 indicates that Lot 286 sits within what may be described as a typical suburban residential context.
The application for the proposed use was made on 19 October 2018. The respondent refused the application on 11 January 2019. The reasons for refusal need not be set out but include that the proposed use is more akin to an industrial use.
The applicant describes the activities that would comprise the proposed use as including woodwork repairs to stocks, scope fitting, free floating barrels, adjusting triggers, and truing actions. The proposed workshop has an area of 40m2.
The applicant proposes that these activities would be for no more than 10 hours a week and that the activities would not be carried on outside of normal business hours. The applicant is currently employed in a flight-in fly-out role so is away for periods of time.
The gunsmith works will only be undertaken on rifles (and not handguns) and would involve the use of hand tools, not large machinery. No sale of firearms or ammunition is proposed.
Local Planning Scheme No 3
Principles of interpretation
LPS 3 is a local planning scheme made pursuant to Pt 5 of the Planning and Development Act 2005 (WA) (PD Act). LPS 3 has force and effect as if enacted by the PD Act: s 87(4) of the PD Act. LPS 3 is subsidiary legislation and is therefore a 'written law' for the purposes of s 5 of the Interpretation Act 1984 (WA) (Interpretation Act).
Pursuant to s 256 of the PD Act, the Planning Minister has prepared regulations for local planning schemes. Schedule 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) includes a set of 85 local planning scheme clauses which are known as the 'deemed provisions'.
By force of s 257B(2) of the PD Act (together with reg 8(1)(c) and reg 10(4) of the LPS Regulations), these 'deemed provisions' have effect and may be enforced as part of each local planning scheme. It follows that the deemed provisions form part of LPS 3.
By reason of s 18 of the Interpretation Act a construction that would promote the purpose or object underlying the written law (whether stated in the written law or not) should be preferred to a construction that would not promote that purpose or object.
Section 18 of the Interpretation Act is not directed to a construction which 'will best achieve' the object of the legislation, but is rather directed to a choice between a construction that would promote the underlying objects or purposes of the legislation, as against one which would not: Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368 at [37] (Banks-Smith J).
Even though LPS 3 has statutory effect and the orthodox rules of construction apply, it is relevant, as matter of legislative context, that planning schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament: Sanders v City of South Perth [2019] WASC 226 at [98]-[99] (Quinlan CJ) (Sanders).
Planning schemes are to be construed broadly and sensibly, not pedantically: Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 at [84] (Buss P, Murphy and Mitchell JJA) (Australian Unity); Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132 at [25] (McLure JA, Steytler P and Pullin JA agreeing) and Johnson v Minister for Planning [2018] WASC 334 at [125] (Smith AJ).
The Court of Appeal has noted (Australian Unity at [82]), that:
[T]he terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies. Placing a counter-intuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.
In accordance with the orthodox principles of construction, LPS 3 is to be read as a whole: City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 at [48] (Murphy JA, Mazza JA and Edelman J) (Lamont); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (Brennan CJ, McHugh J, Gummow J, Kirby J and Hayne J) (Project Blue Sky).
LPS 3 must also be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky at [70]. Where a conflict emerges between the language of different provisions, that conflict must be alleviated, to the extent possible, by adjusting the meaning of the competing provisions to achieve a result that will best give effect to the purpose and language of the provisions while maintaining the unity of all the provisions: Project Blue Sky at [70].
It is also the case that in construing a statute, I am to strive to give meaning to every word that has been chosen by the legislature so as to avoid words being rendered redundant: Project Blue Sky at [71]; Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106; (2017) 219 LGERA 397 at [55] (Kiefel and Bell JJ); at [130] (Keane J).
Previous Tribunal decisions have outlined that questions of classification between competing land use definitions can sometimes be tantamount to trying to unravel a 'Gordian knot': ALH Group Property Holdings Pty Ltd and Presiding Member of the Metro Central Joint Development Assessment Panel [2018] WASAT 63 at [57] (ALH); Rando and City of Gosnells [2019] WASAT 6; (2019) 96 SR (WA) 247 at [56]. In classifying land uses, the activities that comprise the particular land use are key: ALH at [64].
In Western Australia the question of land use classification is sometimes made easier by reason of provisions within local planning schemes that require the more specific definition is to prevail over the more general. The effect of such a provision is that '[put simply], where a land use falls within two definitions, the more specific definition is to prevail': ALH at [58].
Clause 4.4.1 of LPS 3 is such a provision. However, for reasons that I will explain, cl 4.4.1 of LPS 3 has no application in this instance.
Relevant scheme provisions
LPS 3 was gazetted on 22 March 2007 and comprises the scheme text and maps: cl 1.4. One of the purposes of LPS 3 is 'to control and guide land use and development': cl 1.5(d). The aims of LPS 3 include (set out in cl 1.6) inter alia:
(a)to zone land in the Scheme area so as to strategically promote the orderly and proper development by making suitable provision for the use of land within the Scheme area; and
(b)to secure the amenity, health and convenience of the Scheme area and the residents thereof.
Clause 4.2.1 of LPS 3 includes four objectives for the Residential zone (which are not presently relevant).
Clause 4.3 explains how the Zoning Table is to be interpreted. Put shortly, an 'A' use is a use that is not permitted unless approved in the exercise of discretion after advertising. 'X' uses are prohibited in the relevant zone: cl 4.3.2 of LPS 3.
It is not in contest that 'home business' is an 'A' use in the Residential zone which means that it is a use capable of approval in the exercise of discretion. 'Light industry' is prohibited in the Residential zone.
Clause 4.4 relates to the interpretation of the Zoning Table. Clause 4.4.1 provides that where a specific use is mention in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.
Schedule 1 to LPS 3 includes the following land use definitions.
'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 any 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 and normally required in the zone[.]
'industry' means premises used for the manufacture, dismantling, processing, assembly, testing, servicing, maintenance and repairing of goods [sic] products, and if on the same land as any of these operations, the storage of goods, the work of administration or accounting, the selling of any goods by wholesale or retail and the provision of amenities for employees, where incidental operations carried out on the land[.]
'industry - light' means an industry -
(a)in which the processes carried on, the machinery used, and the goods and commodities carry to and from the premises do not cause any injury to or adversely affect the amenity of the locality;
(b)the establishment or conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services[.]
'shop' means premises other than a bulky goods showroom, a liquor store - large or a liquor store - small used to sell goods by retail, to hire goods, or to provide services of a personal nature, including hairdressing or beauty therapy services[.]
The question of amenity for the purposes of classification
In this instance there is a contest as to the proper classification of the proposed use. As has been explained, the applicant's position is that the proposed use is properly classified as a 'home business' and is therefore permissible. The respondent's position is that the proposed use is classified as 'light industry' and is therefore prohibited.
Both of these land use definitions are premised on there being no adverse amenity impacts arising from the activities. Therefore, as part of the land use classification exercise, the question of amenity must be evaluated.
In Warr and Town of Cambridge [2019] WASAT 27; (2019) 97 SR (WA) 27 (Warr) the Tribunal observed that land uses which are premised on there being no adverse amenity impact must be classified according to their context and locality. The Tribunal set out the following in relation to a 'light industry' land use which is similar to the applicable definition in LPS 3 (at [43]):
The use class 'Industry Light' is a land use that must be classified according to its context. That is, in order to be a light industry the Tribunal must reach a view that the use (being the processes carried on, the machinery used and the commodities entering and exiting the relevant premises) will not have an adverse impact on the particular locality. That necessarily involves the Tribunal, as part of the land use classification exercise, evaluating the proposed use in the context of the relevant locality to ascertain if there will be an adverse impact. The scope of uses that may be properly classified as light industry will depend, in part, on the relevant locality. What may be properly classified as a light industry in one locality may not be so classified in another.
An appeal against the Tribunal's decision in Warr was allowed but not on the question of land use classification: Warr v Town of Cambridge [2019] WASC 362 (Allanson J).
Because each of the definitions contended for by the parties is premised on a finding on amenity, I offered the parties the opportunity to call expert evidence on that issue. The respondent filed an expert witness statement from an urban and regional planner. The applicant did not file expert evidence.
Expert evidence - Mr Benjamin Laycock
The respondent submitted a witness statement from Benjamin Luke Laycock, an urban and regional planner with the firm Altus Planning. Mr Laycock has been a planner since 2012.
The applicant did not call any expert evidence but instead filed submissions in reply to Mr Laycock's evidence.
Mr Laycock's evidence was that Lot 286 sits within a fairly typical suburban area. Dwellings are predominantly single storey on similar sized allotments. The streetscape is relatively uniform with each property maintaining street access via individual crossovers with the balance of the setback area being paved or planted with grass or gardens.
Mr Laycock considered that the locality is quiet with no obvious signs of commercial activity. In terms of the planned or future amenity, the area is planned to remain a relatively low density residential area.
It is Mr Laycock's opinion that the proposed use will not cause noise impacts on the locality. He was also of the opinion that the proposed use is acceptable from a visual amenity perspective. That is, there are no physical works associated with the proposed use that are of concern.
Mr Laycock's evidence was that the details on traffic associated with the proposed use are 'vague' and there is a prospect that traffic may become 'more noticeable'. However, given that the applicant proposes to be working for only 10 hours per week on weekdays between 9.00 am and 5.00 pm, Mr Laycock's view was that the propose use is unlikely to result in a significant adverse impact on the amenity of the locality. It is also the case that the applicant proposes to pick up and drop off most of the firearms to be repaired; rather than them being delivered to his residential address.
The only concern that Mr Laycock had in relation to the proposed use is how the presence of a gunsmith in the locality may be perceived by residents and the fears this may cause. Mr Laycock referred to a submission from an adjoining neighbour that they would feel unsafe in their home with their children if approval was granted.
Because of these perception issues, it was Mr Laycock's opinion that 'the proposed use has the potential to adversely affect the residential amenity that is currently enjoyed by the residents of the locality'.
Respondent's submissions
The respondent's submissions on the preliminary issue focused on the activities involved with the proposed use as a gunsmith.
Of the eight activities identified in the definition of 'Industry', the respondent contends that the activities described by the applicant (that comprise the proposed use) will incorporate six of these activities.
These activities and their corresponding recognition within the definition of 'Industry' in LPS 3 are as follows:
(a)woodwork repairs (which comprises manufacturing and repairs);
(b)scope fitting (which comprises assembly and testing);
(c)adjusting triggers (which comprises testing, servicing and maintenance); and
(d)truing actions (testing).
The respondent considers that these gunsmith activities are sufficient to classify the proposed use as an 'industry' for the purposes of LPS 3.
The respondent further submits that the definition of 'industry' should be used to determine whether an activity is an 'industry' or not for the purposes of LPS 3.
Once an industrial activity is found, the question is then what category of industry the proposed activities falls within. Where there is no adverse amenity impacts and service loading issues, the activities may be classified as a 'light industry'.
The respondent made submissions based on the decision of ALH that the key issue in classifying land uses are the activities in question. ALH is discussed at [92]-[100] below.
The respondent submits that the most specific definition is that of 'light industry' and that the proposed use should be classified accordingly. If the proposed use is light industry, it is a prohibited use on Lot 286.
Applicant's submissions
In his responsive submissions, the applicant does not agree that the activities that comprise the proposed use include six of the eight industrial activities set out in the definition of 'industry'. The applicant submits that the proposed use incorporates only two of these activities.
These activities and their corresponding recognition within the definition of 'industry' are as follows:
(a)woodwork repairs (which comprises repairing);
(b)scope fitting (which comprises assembly);
(c)adjusting triggers (which comprises repairing); and
(d)truing actions (which comprises repairing).
The applicant submits that the proposed use includes what may be termed two industrial activities: (i) being the repair of damaged, broken or not working correctly firearms so that they are once again in good condition; and (ii) the assembly of firearms, being the process of putting parts of a machine or mechanism together.
The applicant further submits that proposed use will only involve the repair of rifles. He will not be manufacturing firearms. He will not perform any test of firearms on Lot 286. Any firearm testing will be done in a permitted area (a rifle range).
The applicant contends that these two activities (repair and assembly) are not sufficient to consider the proposed use to be an industry for the purposes of LPS 3.
The applicant further submits that the definition of home business in LPS 3 is a broad land use definition primarily used to describe various small-scale business or hobby activities that can occur in residential zones and areas of residential character so long as they are incidental to the predominant residential use of land and will not cause any adverse impact to the amenity of that residential area.
In this instance the proposed use will not cause any adversity adverse impact on the amenity of the nearby residential areas. Therefore, the applicant submits, the proposed use is properly classified as 'home business'.
Analysis and disposition
The proposed use is not an incidental use of residential land
I do not accept the applicant's submissions that the proposed use is merely an incidental use of residential land. As a matter of planning law, an incidental use is a use that arises as an incident of a dominant land use. The term 'incidental use' is defined in Sch 1 to LPS 3 to mean 'a use of premises which is ancillary and subordinate to the predominant or primary use'.
The garaging of a motor vehicle at a dwelling is common example of an incidental activity. That is because the presence of the motor vehicle is an ordinary incident of the use of the land for residential purposes. No separate approval is required to keep a motor vehicle at a dwelling because, as a matter of planning law, the storage of a motor vehicle is considered to be part and parcel of the use of land for residential purposes: Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 at 216 (Gibbs CJ, Murphy, Wilson and Brennan JJ agreeing).
On the other hand, a 'home business' (being a small-scale gunsmith) is not a necessary, ancillary or ordinary incident of the use of the land for residential purposes. As a matter of planning law, it is a separate use that requires approval.
Will the proposed use cause amenity impacts?
The evidence before the Tribunal, in the form of the witness statement from Mr Laycock on behalf of the respondent, raises no issues with the proposed use from an amenity perspective aside from the question of residents' perceptions and fear in terms of concerns about safety.
Whilst Mr Laycock did raise the point that the traffic may become 'more noticeable', I do not consider that the operation of a home business gunsmith (in a 40m2 shed) is likely to cause traffic issues that will adversely affect the amenity of the locality.
In terms of resident fears in the context of amenity, this is an issue that arises not infrequently. Amenity is an umbrella concept under which a wide range of planning considerations may sit; LA Stein, Principles of Planning Law (OUP, 2008) at 189.
There are many land uses which, of their nature, may raise amenity concerns for surrounding residents. For example, land uses that involve the sale of alcohol, premises which display adult content, some medical or treatment facilities as well as some places of worship or community uses, can sometimes be of concern to residents.
However, the only aspects of a proposed land use that are relevant to the question of amenity are the town planning impacts that arise from that use. Planning is generally not concerned with questions of morality or taste: Liu v Fairfield City Council [1996] NSWLEC 272; (1996) 130 LGERA 230 at 233 (Murrell AJ); Snashall v Sydney City Council (1981) 46 LGRA 88 (McClelland CJ) (Snashall).
In Shashall an adult shop was refused not because of matters of taste or morality but because of the legitimate visual amenity impacts that would be caused by the proliferation of that use in the relevant locality. McClelland CJ noted (at 96) that:
A planning authority is not a custodian of morals. However, that does not mean that, under the guise of tolerance, it should turn its back on considerations of urban amenity and aesthetics.
I immediately accept that firearms and the ownership of firearms is, quite properly, an issue for many in society. The idea of a small gunsmith operating in a particular locality will, no doubt, be of concern for some residents. However, a gunsmith is not an illegal land use.
Residents' fears and concerns, without more, will rarely be determinative in an evaluation of amenity. In Self Help Addiction Resource Centre Inc v Glen Eira City Council [2005] VCAT 2647; (2005) 145 LGERA 124 (Self Help) it was stated (at [56]) that:
While we can appreciate the concern expressed by the resident objectors on these matters, in any assessment of the amenity impacts of this proposal, a distinction must be drawn between what people perceive the impacts of this use will be, and the reality of those impacts. It is perfectly reasonable for the residents to hold the fears that they do, but from the Tribunal's perspective we must be satisfied that there is a factual or realistic basis to those fears in order for us to conclude that this use will result in the amenity impacts alleged by the residents.
The analysis of the Victorian Civil and Administrative Tribunal in Self Help has been cited by the Tribunal on a number of occasions: Woolworths Ltd and City of Joondalup [2009] WASAT 41; (2009) 61 SR (WA) 38 at [76]; John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19 at [130]; West Australian Shalom Group Inc and City of Swan [2019] WASAT 80 at [163].
In the present circumstances, Mr Laycock did not suggest that approval of the proposed use will result in an increased security risk for residents or that the crime-rate in the locality will rise. Rather, Mr Laycock's view is that the mere presence of a gunsmith may adversely affect the amenity of some residents who may harbour fears or concerns over such a use being located in their neighbourhood.
If residents do have such concerns, those concerns are certainly understandable. However, they are not reasonable. The respondent has produced no evidence to suggest any kind of link between the presence of a gunsmith and any crime related activities. Aside from the issue of residents' perceptions, Mr Laycock's overall opinion was that the proposed use will not result in any adverse amenity impacts on the locality.
Based on the materials before me, the residents' concerns in relation to the proposed use fall within the Self Help category. That is, while the residents' perceptions may be reasonable, they are not based on reality. No factual or other basis has been presented to the Tribunal that would allow a conclusion that the residents' fears and concerns may be realised.
It follows that I do not accept Mr Laycock's evidence that resident fears or perceptions are an appropriate basis upon which to conclude that the proposed use will result in an adverse amenity impact on the locality.
Accordingly, I find that the proposed use will have no adverse impact on the amenity of the locality.
Industry and light industry in the context of LPS 3
The use class 'industry' is a broad use class to cover all industrial processes. Once a use is an 'industry' it may then be further classified as either a 'cottage', 'extractive', 'general', 'light', 'rural' or 'service' industry.
If the industrial processes are such that they do not have an adverse effect on the amenity of the locality and do not impose an undue load on essential services, the industrial use may be classified as a 'light industry' for the purposes of LPS 3.
The use class 'industry' in LPS 3 is directed to 'premises' used for activities relating to the manufacturing, processing, dismantling, processing, assembly, testing, servicing, maintenance and repair of goods or products.
The definition of 'industry' in LPS 3 (set out at [31]) is an example of why planning schemes need to be read and applied in a common sense manner. The definition, read literally, is difficult to comprehend. Words appear to be missing (for example between 'goods' and 'products'). It is also unclear whether the list of industrial activities in the definition are to be read disjunctively or conjunctively.
However, reading and applying LPS 3 in a common sense and practical manner, the list of activities that comprise the industry land use must be read disjunctively. It simply cannot be the case that only if a use comprises all eight activities then it may be classified an 'industry' for the purposes of LPS 3. Rather, it must be the case that if any of the eight activities set out in the definition are present, then the use may be an 'industry'. Otherwise the definition makes no sense.
The proposed use, on the applicant's submissions, includes only two industrial activities. However, this does not mean that it cannot be an industrial use. An industrial use can include only one activity (such as, for example, the manufacturing of a product).
In this instance, the key activities relate to the nature of the proposed gunsmith business. Those activities are the repairing and assembly of firearms. In my view, those activities comprise an industrial process and therefore may be an industrial use.
However, in order to be classified as 'industry', the question is whether the proposed use will occur within 'premises' used for the carrying out of industrial activities.
That is an issue which I will address below.
The proposed use falls within the terms of home business in LPS 3
On the materials before me, I am satisfied that the proposed use falls within the terms of 'home business' as defined in LPS 3.
I accept that a gunsmith falls within the meaning of a 'business' for the purposes of the definition of home business. The term 'business', in the context of LPS 3, carries its ordinary and common meaning: van der Feltz v City of Stirling [2009] WASC 142; 137 LGERA 236 at [90] (Murphy J). The definition of 'business' in the Australian Oxford Dictionary (2nd ed, Oxford University Press) includes 'one's regular occupation, profession or trade' (page 174).
For the reasons explained, I also find that the proposed use will not injure, or adversely affect, the amenity of the neighbourhood. The proposed workshop is 40m2 and therefore within the limits of a 'home business' established by LPS 3.
ALH and the focus on the activities that comprise the land use
The respondent's submissions refer to ALH as to why the proposed use is properly classified as a 'light industry'. The respondent submits that the land use which best describes the activities in question is 'light industry' and, because of that, the proposed use should be so classified.
In ALH there was a contest between two definitions relating to a proposed Dan Murphy's liquor outlet. The size of the premises was 1,140m2 of which 790m2 was to be dedicated to the display and sale of packaged liquor.
The applicant submitted that the use was properly classified as a 'tavern' because the premises were to operate under an existing tavern licence pursuant to the Liquor Control Act 1988 (WA) (LC Act). The land use 'tavern' was defined to mean 'premises [the] subject of a tavern licence granted under the provisions of the [LC Act]'.
The respondent development assessment panel (DAP) contended that the proposed Dan Murphy's was a 'Liquor Store (Large)' for the purposes of classification. A 'Liquor Store (Large)' was defined to mean:
… premises -
(a)the subject of a liquor licence granted under the [LC Act]; and
(b)in which the whole of, or a portion of, the premises with a net lettable area of more than 300 square metres is used to display and sell packaged liquor for consumption off the premises.
The relevant planning scheme included a provision (cl 3.3(6)) which has the same effect as cl 4.4.1 of LPS 3. That is, where a particular use is defined, it is then deemed to be excluded from any other use which by its more general terms might otherwise include that use. The Tribunal accepted the applicant's submission that the effect of such a provision was that 'where a land use falls within two definitions, the more specific definition is to prevail over the more general': ALH at [58].
The applicant argued that 'tavern' was the more specific land use because the premises were to operate under that particular licence (of the six liquor licences available under the LC Act). The definition of 'Liquor Store (Large)', on the other hand, referred to any licence granted under the LC Act that involved premises with a net lettable area greater than 300m2.
The DAP argued that for the purposes of cl 3.3(6) the focus, in terms of classification, must be on the activities in question. At [63] of ALH the Tribunal set out the DAP's submission that the definition of 'Liquor Store (Large)':
more specifically encapsulates the proposed use of the [s]ite for a Dan Murphy's store, because the definition specifically addresses the size of the proposed development (i.e. a net lettable area of more than 300m2) and the particular activities proposed to be undertaken at the [s]ite (i.e. the whole or a portion of the premises with a net lettable area of more than 300m2 is used to display and sell packaged liquor for consumption off the premises).
(original emphasis)
The Tribunal found that the applicant's focus on the licencing arrangements under the LC Act ignored the activities that comprised the particular use. In finding that the Dan Murphy's was a 'Liquor Store (Large)' the Tribunal concluded that '[i]n a land use classification exercise, the activities that comprise the particular use are key and cannot be ignored': ALH at [64].
The Tribunal found that the Dan Murphy's was properly classified as 'Liquor Store (Large)' and, by application of cl 3.3(6) of LPS 3, was therefore excluded from being classified as a 'tavern': ALH at [65][71].
LPS 3 must be read as a whole and applied in a common-sense manner
The respondent's submissions on ALH can largely be accepted. I agree that the land use which best describes the proposed activities is light industry. However, that conclusion does not, in this instance, answer the land use classification question that arises.
The principle that emerges from ALH will be of assistance in some land use classification exercises. Those cases involve questions where there is a contest as to land use classification, where there are specific and more general land uses the activities in question may fall within. In such circumstances, as ALH makes clear, the activities that comprise the particular use will be 'key' in resolving the question as to the correct classification.
However, ALH does not necessarily assist in the context of where a general land is classified by reference not to activities per se, but by the scale of the activities in question.
It is settled law that LPS 3 is to be read and applied as a whole: Lamont at [48]; Project Blue Sky at [69]. The use class 'home business' has a broad application and is discretionary or permissible across a range of zones. It is a use class that enables a 'business, service or profession' to be 'carried out in a dwelling or on land around a dwelling by an occupier of the dwelling'. A 'home business' must also meet all of the criteria set out from (a) to (f) of the definition.
The evident purpose of the use class 'home business' is to allow commercial enterprises of such a small scale that they can be conducted in, in this instance, residential areas. There is nothing in the terms of LPS 3 which suggests that uses of the nature of a gunsmith cannot be a 'home business' provided that such a use falls within the terms of the definition.
The emphasis of the 'home business' definition in LPS 3 is not on describing the land use activities per se (other than that they must be the activities of a 'business, service or profession') but on ensuring that whatever the activities in question are, they are of a scale appropriate to be located in the context of a dwelling, including in residential areas.
Therefore, in this instance, the respondent's focus on ALH is misplaced. This is because the definition of 'home business' in LPS 3 is not focussed on describing any relevant activities. Rather, the definition includes a range of criteria to establish a scale at which some commercial activities (being the activities of a 'business, service or profession') may be properly conducted within or on land surrounding a dwelling.
If the respondent's submissions were correct, no proposed land use would be classified as a home business, no matter how small scale and benign from a planning viewpoint, if another definition within LPS 3 referred to the proposed activities in question in more detail.
By way of an example, a hairdresser or beauty therapist who wanted to operate a home business (that had no adverse amenity impacts) from his or her dwelling with one employee would be a 'shop' under LPS 3 if the respondent's submissions on ALH were accepted. That is because the definition of 'shop' (set out at [31]) engages more directly with the activities in question as there is a specific reference to 'hairdressing' and 'beauty therapy service'. A 'shop' is a prohibited use in the Residential zone in LPS 3.
The result of such an approach would be that the 'home business' use class would become largely redundant. LPS 3 is a legislative instrument, albeit largely the work of town planners, but the ordinary principles of construction apply: Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 at [21].
In constructing LPS 3, I should strive to give the chosen words meaning and endeavour to arrive at a harmonious construction which would not result in words (or provisions) becoming redundant: Project Blue Sky at [70]-[71].
I am also mindful that I am required to have regard to the purpose of LPS 3 pursuant to s 18 of the Interpretation Act. The evident purpose of LPS 3, read and applied as a whole, is to establish a range of land uses; their respective permissibly across the various zones and to generally control and regulate 'development'. Amongst those land use is the use class 'home business' which is designed to allow small scale commercial activities to take place within and on land around dwellings.
The underlying purpose of the 'home business' use class would be defeated if ALH were applied in the manner urged by the respondent. To adopt such an approach would not be reading and applying LPS 3 in a practical and common sense manner: Australian Unity at [84]. I therefore do not accept the respondent's submissions on the application of ALH. There is a legitimate role - in town planning terms - for the 'home business' use class within LPS 3.
In my view, where a particular use falls within the terms of a 'home business', it cannot then be a 'premises used for the manufacture, dismantling, processing assembly, testing, servicing, maintenance and repairing of goods products …' so as to be an 'industry' for the purposes of LPS 3.
I therefore consider that cl 4.4.1 of LPS 3 has no application in this instance. Whilst the proposed use may involve some of those industrial activities, it is of such a minor scale and impact that it is not properly an 'industry' for the purposes of LPS 3. Rather, the proposed use is properly classified as a 'home business'.
Conclusion
For these reasons, the applicant's construction of LPS 3 should be accepted. The proposed use is properly classified as a 'home business' and therefore is a use that is capable of approval in the Residential zone of LPS 3.
Orders
The Tribunal orders:
1.The proposed use is properly classified as a 'home business' for the purposes of the Shire of Kalamunda Local Planning Scheme No 3.
2.The matter is listed to a directions hearing in the Class 2 list to determine the future conduct of this matter.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR S WILLEY, MEMBER
6 DECEMBER 2019
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