MOLES and CITY OF ARMADALE - [2021] WASAT 140

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   MOLES and CITY OF ARMADALE [2021] WASAT 140
MEMBER:   DR S WILLEY, SENIOR MEMBER
HEARD:   14 OCTOBER 2019, 8-12 FEBRUARY 2021, 14 SEPTEMBER 2021, 7 OCTOBER 2021
DELIVERED          :   2 NOVEMBER 2021
FILE NO/S:   DR 83 of 2019
DR 69 of 2019
DR 154 of 2018
DR 153 of 2018

BETWEEN: DAVID MOLES
First Applicant
JULIE MOLES
Second Applicant
AND
CITY OF ARMADALE
Respondent

Catchwords:

Town planning - Enforcement - Written direction - Commercial vehicles - Commercial vehicle parking - Transport depot - Sea container - Storage - Principles that inform the discretion as to written direction - Application for review dismissed
Town planning - Development application - Principles of interpretation of a planning scheme - Commercial vehicle - Commercial vehicle parking - Annual approval - Planning history of the site - Uncertainty
Town planning - Development application - Rural pursuit application - Classification of land uses - Multiple land uses proposed - Transport depot - Planning history of site - Uncertainty

Legislation:

Acts Amendment and Repeal (Competition Policy) Act 2003 (WA), s 6, s 22
Building Regulations 2012 (WA), Sch 4, cl 2
City of Armadale Local Planning Scheme No 4, cl 1.5, cl 1.6, cl 1.7, cl 3.2.13, cl 3.3.2, cl 3.4.1, cl 3.4.3, cl 3.4.4, cl 4B.4, cl 4B.4.5, cl 4B.4.6, cl 4B.4.7, cl 5B.4.5, Sch 1
Interpretation Act 1984 (WA), s 5, s 18
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 2, cl 1, cl 37, cl 64, cl 67, cl 67(w), cl 90(2)
Planning and Development Act 2005 (WA), s 68(1)(a), s 162(1), s 214, s 255, s 257B(2)
Road Traffic (Administration) Act 2008 (WA), s 5
Road Traffic (Vehicles) Act 2012 (WA)
Road Traffic (Vehicles) Regulations 2014 (WA)
Road Traffic Act 1974 (WA), s 15(1)
Road Traffic Legislation Amendment Act 2012 (WA), s 8
State Administrative Tribunal Act 2004 (WA), s 29(3)

Result:

Written directions varied
Applications for review otherwise dismissed

Category: B

Representation:

Counsel:

First Applicant	:	Mr S J Blyth
Second Applicant	:	Mr S J Blyth
Respondent	:	Ms C Hamilton and Ms A M Wood

Solicitors:

First Applicant	:	Lewis Blyth & Hooper (Gosnells)
Second Applicant	:	Lewis Blyth & Hooper (Gosnells)
Respondent	:	Kott Gunning

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

2 Thomas Road Pty Ltd v Shire of Serpentine-Jarrahdale [2021] WASC 339
ALH Group Property Holdings Pty Ltd and Presiding Member of the Metro Central Joint Development Assessment Panel [2018] WASAT 63
Auscon Pty Ltd and Town of Cambridge [2021] WASAT 116
Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463
Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
Bransby v City of Wanneroo [No 2] [2020] WASC 396
Bretherton v Moonee Valley City Council [2000] VCAT 1151
Brikmakers and City of Swan [2021] WASAT 66; (2021) 102 SR (WA) 314
Cann and Shire of Augusta-Margaret River [2021] WASAT 22
Castle and Shire of Serpentine-Jarrahdale [2019] WASAT 122
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Chapman and City or Armadale [2011] WASAT 205
Churches and Shire of Collie [2019] WASAT 76
City of Armadale v Chapman [2012] WASC 423
City of Noarlunga v Fraser (1986) 42 SASR 450; (1986) 61 LGRA 324
City of Swan v Taylor [2005] WASCA 88
Claude Neon Limited v City of Perth [1983] WAR 147
Conomos v Chryssochoides (1997) 97 LGERA 113
Daniele v Shire of Swan (1998) 20 WAR 164; (1998) 100 LGERA 325
Dao Ji Association and City of Gosnells [2020] WASAT 10
Director General of Department of Transport v McKenzie [2016] WASCA 147; (2016) MVR 306
D'Orazio Enterprises Pty Ltd and the City of Stirling [2016] WASAT 99; (2016) 90 SR (WA) 107
Evangel Christian Fellowship Inc and Shire of Serpentine Jarrahdale [2017] WASAT 159
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
G&G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel [2018] WASAT 9; (2018) 94 SR (WA) 36
Godenzie and City of Geraldton-Greenough [2010] WASAT 107
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
Humich and City of Gosnells [2008] WASAT 298
IpilatesPerth Pty Ltd and City of Joondalup [2020] WASAT 52
John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19
Landcorp and City of Stirling [2011] WASAT 202
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) 73 LGRA 349
Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301
Norman v Gosford Shire Council [1975] HCA 15; (1975) 132 CLR 83
Northcote Food Wholesalers Pty Ltd v Northcote City Council (1994) 84 LGERA 54
Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
Quarry Products (Newcastle) Pty Ltd v Roads and Maritime Services [No 3] [2012] NSWLEC 57
Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132
Sanders v City of South Perth [2019] WASC 226
Shire of Murray v Ivo Nominees Pty Ltd [2020] WASCA 45; (2020) 243 LGERA 89
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
West Coast Enterprise Pty Ltd and Shire of Exmouth [2007] WASAT 316
Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These reasons arise from four different applications for review relating to 34 Rails Crescent, Wungong (the Land). The Land is owned by David and Julie Moles as joint tenants (together the Applicants).
Each of the applications relates to the Land. By way of broad overview, the Applicants operate an earthmoving company (Moles Earthmoving) and have had occasion to bring to the Land, vehicles and machinery which is owned by Moles Earthmoving.
The frequency and extent of the presence of vehicles and machinery belonging to Moles Earthmoving on the Land lies at the heart of these proceedings. The City of Armadale is the respondent in these proceedings (City or Respondent).
The four related proceedings are as follows:
DR 153 of 2018: is an application to review a written direction pursuant to s 214 of the Planning and Development Act 2005 (WA) (PD Act). The written direction required that the use of the Land for an (unauthorised) 'transport depot' and/or 'home business', cease and required the Applicants to remove a sea container and other plant and equipment that was located on the Land. The written direction was issued to David Moles;
DR 154 of 2018:     is an application to review a written direction that was issued to Julie Moles that was identical to that which was issued to David Moles.
I will refer to these written directions together at the Written Directions.
DR 69 of 2019:      is an application to review the Respondent's decision to refuse to 'renew' a permit allowing the parking of a commercial vehicle on the Land (a truck and trailer). The permit is renewed on an annual basis. I will refer to this proceeding as the Commercial Vehicle Parking Application.
DR 83 of 2019:      is an application to review the Respondent's decision to refuse the Applicants' application for a 'rural pursuit' on the Land. I will refer to this application as the Rural Pursuit Application. The Respondent considers that the Rural Pursuit Application is a 'sham' application in that it is an application to cloak the fact that the Applicants just want to, in effect, be able to store Moles Earthmoving vehicles and machinery under the guise that they are undertaking a rural pursuit on the Land.

Summary outcome

For the reasons that follow, I have largely found in favour of the Respondent in this matter.
By way of broad overview, this case is ultimately about how the Applicants have used the Land since approximately 2016. Clause 67(w) of the Deemed Provisions[1] directs me, in relation to applications for development approval, to have 'due regard' to 'the history of the site where the development is to be located'. In D'Orazio Enterprises Pty Ltd and the City of Stirling[2] the Tribunal stated that:
[P]lanning law permits, if not requires, regard to be had to the full history of the site and the existing situation on the site in the context of proposed development without any artificial limitations on that task.
[1] Being the provisions contained in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA). The effect of cl 90(2) of the Deemed Provisions is that the Planning Regulation and Development (Local Planning Schemes) Regulations 2015 (WA) do not apply to either the Rural Pursuit Application or the Commercial Vehicle Parking Application.
[2] D'Orazio Enterprises Pty Ltd and City of Stirling [2016] WASAT 99; (2016) 90 SR (WA) 107 at [78].
In the context of this proceeding, I have had particular regard to the history of the Land in the exercise of discretion in relation to the Commercial Vehicle Parking Application and the Rural Pursuit Application. As I will come to, that site history does not read well for the Applicants.
In ordinary circumstances, site history is unlikely to be a particularly relevant factor in the exercise of planning discretion. However, in this instance I have given it significant weight because of the opaque and uncertain nature of the applications that arise for my determination. However, these reasons should not be viewed as a statement that site history will always be relevant in the exercise of planning discretion. This case very much turns on its particular facts.
I find that the site history, which is not contested in any substantive sense, evinces a determined effort on the part of the Applicants to store or keep a range of commercial vehicles, plant and equipment, as well as a sea container, on the Land in a manner that infringes the requirements of the City of Armadale Local Planning Scheme No 4 (LPS 4). This is so, despite the fact that the City has been trying to work with the Applicants since 2017 to regularise the use of the Land.
In the exercise of discretion, I have found, at various points, which I will come to, that the site history inclines me to refuse the applications for review. That is particularly so because, in the context of both the Commercial Vehicle Parking Application and the Rural Pursuit Application, I am far from certain as to what exactly the Applicants are seeking approval for.
Having regard to that site history, and having regard to the range of factors that arise under cl 67 of the Deemed Provisions, I am not inclined to grant an approval to the Applicants where there is any doubt, ambiguity or uncertainty as to what is approved and what is authorised to be on the Land. In an overall sense, I am not satisfied that either the Rural Pursuit Application nor the Commercial Vehicle Parking Application should be approved on their merits.
It is also the case that I have found that the correct and preferable decision is to affirm the Written Directions, albeit I am going to vary the time in which they must be complied with. I have power to vary the Written Directions.[3]
[3] Section 29(3) State Administrative Tribunal Act 2004 (WA).
As I have outlined above, I find that the correct and preferable decision is to refuse the Rural Pursuit Application and the Commercial Vehicle Parking Application.
However, in refusing these applications, I have stressed that the Land should be able to accommodate a rural pursuit. Indeed, I consider that such a land use would generally be encouraged by the applicable planning framework. However, I do not consider that the Applicants need to rely on access to the range of commercial vehicles to undertake that rural pursuit to the extent that they outline in the Rural Pursuit Application.
As I outline in the reasons that follow, I have found that the Applicants' Rural Pursuit Application comprises two separate and discrete land uses for the purposes of the LPS 4.
The first is a rural pursuit which, stripped of its commercial vehicle overlay, is not objectionable. Indeed, as I explain, there is an argument that simply planting out one's garden and keeping chickens is not 'development' that requires approval in a Special Rural Zone, although I accept questions of degree and scale arise. However, the correct and preferable decision is to refuse the Rural Pursuit Application, largely on the basis that the proposed commercial aspects of the application, including the quid pro quo arrangements with local restauranters, was wholly undeveloped and therefore uncertain.
The second use is either a 'transport depot' or 'storage', both of which are prohibited in the Special Rural Zone. While the Applicants presented the Rural Pursuit Application as an 'integrated application', I have found that the connection between the proposed commercial vehicles involved, and the rural pursuit activities, to be too loose to be a single land use.
I have also found that the correct and preferable decision is to refuse the Commercial Vehicle Parking Application on the basis that it too is uncertain.
This is because the Applicants do not seek a renewal of the Commercial Vehicle Parking Permit (CVP Approval). If that were the case, I would have allowed the application for review. However, what the Applicants' seek is to vary that approval and to store on the trailer 'soil, small plant and equipment' as well as adjusting the commencement time. In the context of the history of the Land as well as having regard to amenity considerations, I find the proposal to store 'soil, small plant and equipment' on the trailer to be far too uncertain to warrant approval in the exercise of planning discretion.

Background

The following background can properly be described as tedious. However, having regard to the nature of the issues in contest in these proceedings, it is necessary to set out the events leading up to the making of these applications in some detail.
This background, which is not contentious, is drawn from the parties' respective Statements of Issues, Facts and Contentions as well as materials contained in the Respondent's s 24 bundle.
The Land is (now) zoned 'Special Rural' under LPS 4 and 'Rural' in the Metropolitan Region Scheme. The Land has an area of 1.244 hectares. The Land sits within what may be described as a typical special rural context. Lots surrounding the Land are of a similar size and contain dwellings and a range of rural activities.
On 2 December 2008, the Applicants became the registered proprietors of the Land (being Lot 26 of Plan 13366 Certificate of Title Volume 1578 Folio 27).
On 16 July 2013, Moles Earthmoving was registered as a business name. The Land is the nominated principal place of business and address for service. The business name holder is the Trustee for the D&J Moles Family Trust. The nominated organisation representative for Moles Earthmoving is Julie Moles.
Moles Earthmoving equipment includes, but is not limited to:
a)a Yanmar front end loader registration 1COG964 (3.48 tonnes) which was referred to in the Written Directions (Yanmar Loader);
b)a Yanmar excavator (unregistered) (2 tonnes) referred to in the Written Directions (Yanmar Excavator);
c)a Volvo excavator (unregistered) (14.5 tonne) referred to in Written Directions (Volvo Excavator); and
d)a blue Isuzu tip back trailer registration (reg) 1BZG665, which (2.3 tonnes), referred to in the Written Directions (Blue Isuzu). The Blue Isuzu is owned by Moles Earthmoving but is not used by, or in connection with, Moles Earthmoving.
On 17 July 2015, the Applicants lodged an application for planning approval for:
a)an ancillary dwelling to accommodate the parents of Julie Moles (Ancillary Dwelling); and
b)a 12 metre x 12 metre Colorbond shed for storage of a caravan and vintage cars (Shed).
On 8 September 2015, the City granted approval to the Ancillary Dwelling and the Shed.
On 9 February 2016, the Applicants lodged an application for planning approval for a revised form of the Ancillary Dwelling (due to several amendments and structural changes). On 17 September 2016, the City again approved the Ancillary Dwelling.
On 3 March 2016, the City issued a building permit for the Ancillary Dwelling.
On 30 June 2016, the City wrote to Julie Moles stating a sea container may be permitted on property that holds a current building licence, if used in conjunction with that build (as a builder's shed) until completion, and noting the current construction of the Ancillary Dwelling on the Land.
The City advised that it would not generally approve the keeping of a sea container without a valid building licence, however should the Applicants wish to do so, they may submit a request in writing to the Manager of Planning Services for consideration.
On 13 February 2017, the City produced a planning compliance running sheet for 'unauthorised commercial vehicle parking & sea container' on the Land. No further action was taken or recorded.
On 13 July 2017, following a complaint received by the City, the City produced a planning compliance running sheet for unauthorised commercial vehicle parking at the Land.
On 14 July 2017, two City officers conducted a site visit at the Land and spoke with Julie Moles. The officers saw a dump truck and a sea container on the Land, and a separate gated section where it appeared earthmoving equipment and/or trucks had been stored. Mrs Moles was advised that the Land cannot be used as a storage depot for her company's earthmoving machines and that the City would follow up with a letter.
Following the site inspection on 14 July 2017, the City wrote to the Applicants by letter dated 17 July 2017, stating a transport depot is an 'X' use on land zoned Rural Living (which the Land was then zoned), and the Land could not be used to store earthmoving machinery for any period of time.
In its letter of 17 July 2017, the City required, within 28 days, the removal of:
a)all earthmoving machinery and associated equipment;
b)all commercial vehicles not currently under assessment for development approval; and
c)any sea containers (given construction of the Ancillary Dwelling had been completed),
from the Land. An additional inspection would be conducted after 28 days.
On 11 August 2017, Lewis Blyth & Hooper wrote to the City on behalf of the Applicants (Letter) with a submission that:
(a)the 'Applicants own and operate Moles Earthmoving, which has 10 items of plant and equipment but the vast majority of these are, at no time, on the Land but simply move from working site to working site;
(b)the Land is not being used as a 'transport depot' within the meaning of that definition in LPS 4;
(c)there is an exception in cl 5B.4.5 of LPS 4 for parking of a commercial vehicle used for the purposes of an approved rural use or rural industry should apply;
(d)the Applicants' activities on the Land fit with a 'Rural Pursuit' zone classification in LPS 4;
(e)the Applicants intend to remove the Scania truck reg 6MO 063 from the Land by no later than 31 December 2017;
(f)the Volvo BL71 has a front and rear bucket and is a 'farm tractor'; and
(g)the area in which the Shed is to be constructed has been cleared, and the sea container is being used for the safe storage of materials to be used to construct the Shed and is located behind an existing shed and out of sight from the Land in any event.

The Letter enclosed a copy of an application for development approval for the parking of the Scania truck reg DB 4104 and trailer reg 1TOQ 792 at the Land. The submission explained that these will be used at the Land for:
i)importation of sand, soil improvers, plants and firewood;
ii)the removal of excess vegetation and debris, tree stumps and the like; and
iii)the transportation of other plants and equipment (which the Applicants do not own) to upgrade and improve the Land as a whole.
On 15 August 2017, the City wrote to Lewis Blyth & Hooper stating:
a)the City will accept for assessment, an application for keeping the Scania truck reg DB 4104 and trailer reg 1TOQ 792 (this was later lodged 16 August 2017 as 10.2017.317.1);
b)the Scania truck reg 6MO 063 must be removed within the next 14 days;
c)the Volvo BL71 is classified by its manufacture as a backhoe, but the City may consider the use of it as a tractor if it is registered as such; and
d)the approval for the Shed will expire on 8 September 2017. Sea containers may be permitted on a property which holds a current building permit if used in conjunction with that build until completion. There is no current building permit on the property or firm plans regarding future development of the Shed, and the sea container must be removed.
On 16 August 2017, the City received an application for development approval from the Applicants for 'Parking of truck reg: DB 4104 and associated trailer reg 1TOQ 792' on the Land (CVP Application) and attached a Commercial Vehicle Parking Details Form.
On 21 August 2017 Lewis Blyth & Hooper wrote to the City attaching copies of:
a)a licence and motor vehicle insurance policy for Volvo BL71 backhoe reg 1COH526 (Volvo backhoe) in the name of Renato Bortolo Moles for payment due before 26 June 2017;
b)a licence and motor vehicle insurance policy for the Volvo backhoe in the name of Renato Bortolo Moles. Paid 23 June 2016 and expiry date 25 June 2017;
c)a WA Department of Transport 'Application for Agricultural Machinery or Agricultural Special Purpose Vehicle Concession (Farm Tractor/Plant) form (VL 18 Form)' dated 21.08.17 for Volvo backhoe reg ICON 523 (with Julie Moles as the applicant);
and stated that:
d)the Applicants intend to lodge an application for planning approval for the Scania truck reg 6MO 063 to remain at the Land;
e)the Volvo backhoe is in the name of Renato Bortolo Moles, but is being transferred to Julie Moles;
f)the class of vehicle for the for the Volvo backhoe is 'B' (and enclosed is a copy of the licence and two documents that together confirm the class of vehicle);
g)the Applicants have the capacity to make a VL 18 Form application to the WA Department of Transport, however the Volvo backhoe already appears to be appropriately registered, and requests reconsideration of the need to make an application to the WA Department of Transport;
h)the statutory declaration on the VL 18 Form states that:
'I Julie Moles, sincerely declare that I am carrying on farm activities and that I own or lease the vehicle described herewith, which will be used exclusively in the business of farming during the currency of the licence'.[;]
i)the Applicants may, for a small fee, be asked by their neighbours to make the Volvo backhoe available to create a fire break, and the declaration would appear to exclude this. For that reason, they again seek reconsideration of the need to formally apply to the WA Department of Transport; and
j)the Applicants will seek to extend the approval period for the Shed for two years, expiring 8 September 2019, and make an application for a building licence. It was their understanding the sea container could remain on site for the duration of those approvals to house equipment relating to the building of the Shed.
On 25 August 2017, the City wrote to Lewis Blyth & Hooper, stating:
a)the City is in the initial stage of assessment for the CVP Application (notifying neighbours with an opportunity to comment);
b)the City will be satisfied that Volvo backhoe is not being used as a commercial vehicle if it is provided with proof that it is registered as a tractor with the WA Department of Transport; and
c)there is no current valid building permit on the Land, and the planning approval for Shed will expire on 8 September 2017. If a building application for the Shed is received before 8 September 2017 the sea container can be temporarily retained. The sea container must otherwise be removed.
On 21 August 2017, Lewis Blyth & Hooper wrote to the City, stating:
a)the CVP Application is receiving both support and opposition. The City appears to support the application, which is before the relevant committee on 21 November 2017;
b)the Applicants have put the Scania truck reg 6M0 063 on the market for sale;
c)the Applicants have received by email dated 6 September 2017 a response from the Department of Transport WA confirming that the Volvo backhoe is already a B class vehicle under the Road Traffic (Vehicles) Regulations 2014 (WA) and is therefore already registered as 'an agricultural machine';
d)the vehicle is already registered in the manner proposed by the City;
e)the Applicants attended the City's offices on 18 August 2017 to submit an application to extend the planning approval for the Shed;
f)the City's staff informed the Applicants that:
i)the approval for the Shed had not expired and an extension of that approval was not required;
ii)an extension was not required for the Shed on account of the approval being jointly for the construction of the Ancillary Dwelling and the Shed; and
iii)as the Ancillary Dwelling had been completed, the approval remained on foot;
g)the Applicants now wish to proceed with the construction of the Shed, in respect of which building approval is required;
h)the Applicants have contacted a building contractor seeking plans to accompany a building application, which is expected to be lodged by 6 October 2017;
i)the sea container will be used to store building equipment and the like relating to the construction of the Shed; and
j)the Applicants seek the City's indulgence regarding the sea container on the basis they will make a building application as aforesaid.
Lewis Blyth & Hooper emailed the City on 3 October 2017 and attached:
a)a response from the Department of Transport WA which it had previously omitted; and
b)a copy of an email from the Concessions Team, Drive and Vehicle Services, Department of Transport WA, to Julie Moles dated 6 September 2017, headed 'RE:FW: Definition of Class 8 vehicles'. The Department of Transport stated in its email:
'Good Afternoon Julie,
Thank you for your enquiry
Please find enclosed a copy of the Road Traffic (Vehicles) Regulations 2014.
The definition of a B class vehicle is located on page 24 under Part 2 Division 4 - Classification of vehicle licences.
Please let us know if there is anything else that you require.'
On 5 December 2017, the City had conditionally approved the CVP Application for the parking of the Scania truck reg DB 4104 and associated trailer reg 1TOQ 792 on the Land for a period of 12 months, expiring 30 November 2018 (CVP Approval).
On 26 March 2018, a City officer visited the Land. No one was home at the time of site inspection. The City officer reported seeing five commercial vehicles parked on the handstand next to a large sea container and took six photos of the machines and sea container at the Land. The City officer checked the City's records and none of the five vehicles were part of the CVP Approval and made a record of the site visit.
On 22 May 2018, the City (Executive Manger Development Services) separately served the Written Directions pursuant to s 214 of the PD Act. The Written Directions specified that:
a)since the City's visit on 26 March 2018, the Land has been used for unauthorised development, including use of the Land for:
i)unauthorised commercial vehicle parking;
ii)an unauthorised transport depot and/or home business; and
iii)storage, including the placement of a sea container and the placement of various commercial vehicles, plant and equipment,
without the consent of the City under LPS 4 (the Unlawful Activities), and requires the Applicants:
b)within 65 days of the date of service of the Written Directions, to restore the Land as near as practicable to its condition immediately before the Unlawful Activities stated to the City's satisfaction by removing each of the following:
i)the sea container;
ii)various unauthorised commercial vehicles, plant and equipment including but not limited to:
A.a blue tip back trailer;
B.a yellow Yanmar Loader (bobcat type vehicle) - the word 'R&M Moles' visible on the lifting fork;
C.a yellow Yanmar excavator;
D.a yellow compactor/roller; and
E.a yellow Volvo backhoe excavator - marked 'Moles Earthmoving'
The Applicants lodged an application to review the Written Directions on 25 June 2018.
On 27 June 2018, Julie Moles sent an email to the City attaching a letter dated 24 June 2018 which outlined that:
a)she would like to request a meeting to provide information concerning neighbourhood issues;
b)she has previously discussed the same matter with a councillor on 28 May 2018 who suggested she put in writing;
c)the issues have inflicted adverse effect on mental and physical health of several individuals; and
d)a meeting should be held as a matter of urgency to allow her the opportunity to verbally present and request to be sound recorded by the City for future reference.
On 6 July 2018, Julie Moles wrote to the Mayor of the City to request an urgent meeting to discuss multiple issues.
On the same day, the City's Executive Director Development Services emailed Mrs Moles to advise that while her concerns were acknowledged, they do not influence (from the City's perspective) or affect the requirement for the Applicants to comply with LPS 4. Mrs Moles was requested to comply with the Written Directions, and that there would be a site inspection following the expiry of time specified in the Written Directions.
On 24 July 2018, Julie Moles applied for a building permit for the Land. The building work was to 'replace front and side boundary fencing approximately 360 metres in total, with storage of the fencing materials on site during construction in a secure sea container'.
On 31 July 2018, the City issued BA4 Building permit to builder JG Moles for the following works at the Land 'Replacing of front and, side boundary fencing (approximately 360 metres total) with Dog Mesh, posts and rails/wire' (Fence Permit).
On 31 July 2018, the City also issued a BA3 Certificate of design compliance for the Fence Permit on the Land.
On 21 August 2018, Lewis Blyth & Hooper wrote to the City on behalf of the Applicants with submissions in relation to the items/machinery identified in the Written Directions:
a)the 'Yanmar bobcat' and the 'Yanmar excavator' are used equally at the Land and as part of Moles Earthmoving. The current (12 month) approved CVP Approval should be varied to allow these two items to be stored on the truck/trailer;
b)the 'roller' is kept at the Land and is not designed for commercial purposes;
c)the Blue Isuzu is registered and is designed for commercial purpose but is only notionally used by Moles Earthmoving;
d)LPS 4 makes provision for 'Rural Pursuit' in respect of the Land (being then zoned 'Rural Living'):
i)there are the agricultural activities on the Land (vegie garden, fruit trees, plants, flowers);
ii)to the extent that the Written Directions address the Blue Isuzu, the bobcat and the roller, these are all used in respect of these rural pursuits; and
ii)the City may impose conditions that the Blue Isuzu and roller are to be stored on hardstand areas (out of sight of the road) when not used; and
e)the sea container is lawfully on the Land as a result of the Fence Permit. The Applicants also intend to construct the Shed once funds permit.
On 16 October 2018, the City's Development Services Committee recommended that the City (at the City's Council Meeting held 22 October 2018):
a)not support the Applicants' proposal to park additional commercial vehicles or retain the sea container at the Land; and
b)authorise the commencement of prosecution proceedings for the sea container for the 12 month period prior to the issuance of the recent building permit dated 31 July 2018.
At its meeting on 22 October 2018, the City resolved to:
a)not support the Applicants' proposal to park additional commercial vehicles or retain the sea container on the Land; and
b)authorise the commencement of prosecution proceedings for the sea container for the 12 month period prior to the issuance of the recent building permit dated 31 July 2018.
On 28 November 2018, the Applicants lodged an application for development approval for the 'Parking of truck DB 4104 and trailer 1TOQ 792 including any load as per attached Commercial Vehicle Parking Details Form' and attached copies of vehicle licence and motor injury insurance policies for the Scania truck reg DB 4104 and trailer reg 1TOQ 792, and a site plan of the Land with a handwritten notation of 'truck parking area'.
On 6 December 2018, Lewis Blyth & Hooper wrote to the City, referring to Applicants' application to renew the CVP Application, and to amend three approval conditions as follows:
a)condition 1 - to add extra vehicles (yellow bobcat, yellow excavator and Volvo excavator) by storing these on the approved trailer;
b)condition 3 - to vary the start-up time to 6 am; and
c)condition 6 - so that 'maintenance' includes a wash down and cleaning of vehicles.
On 17 December 2018, the Applicants lodged an application for development approval for a change of use of the Land to 'Rural Pursuit (a), (c), (e)'. On the application form, under the question 'Nature of any existing buildings and/or use', the Applicants included the following 'Equipment required as per attached'. The attached information included details as to the following equipment:
Yanmar excavator: required for 'bushfire safety, stormwater management and control, rural pursuit, property improvements'.
Yanmar loader: required for 'bushfire safety and management, maintaining driveways and pathways for disabled access, stormwater management and control, rural pursuit'.
On 18 December 2018, the City wrote to the Applicants returning the application for development approval lodged 17 December 2018 due to insufficient plans and details. The Applicants were requested to resubmit a new application.
On 18 December 2018, the City wrote to the Applicants referring to the CVP Approval renewal (including seeking amendments to the approval conditions) and stated:
a)the application to renew the CVP Approval is valid;
b)the request to vary the renewal of the CVP Approval is not valid;
c)the City is not prepared to consider a variation of a renewal of the CVP Approval and that a new development application would be required; and
d)that the Applicants should advise the City by 7 January 2019 if they wish to proceed with the application to renew the CVP Approval.
On 21 December 2018, Lewis Blyth & Hooper wrote to the City in support of, and to supplement, the Applicants':
(a)application for renewal of the CVP Approval;
(b)application for development approval for use of the Land for the purposes of a 'Rural Pursuit'; and
(c)prospective application for a building licence to construct a shed and use of the sea container for storage during build.
On 3 January 2019, the Applicants wrote to the City and advised they wished to progress the application to vary the CVP Approval.
In relation to the letter sent by solicitors Lewis Blyth & Hooper, the City's solicitors sent a reply on 11 January 2019 which stated:
a)the development application for use of the Land for the purposes of a 'Rural Pursuit' had been returned by the City on 18 December 2018 due to it being incomplete;
b)there is no current building permit application;
c)the City considered the submissions made in the Applicants' letter to the City on 21 December 2018, but remains of the view, the vehicles, the subject of the Written Directions meet the requirements for characterisation as 'commercial vehicles' and are therefore not currently permitted to remain on the Land; and
d)the City is seeking this matter be programmed for hearing in the Tribunal on all issues as further mediation or negotiation appears futile.
On 14 February 2019, the Applicants re-lodged an amended application for development approval to allow the Land to be used for the purpose of a 'Rural Pursuit (a), (c), (e)'. The application was previously lodged on 17 December 2018 and returned by the City on 18 December 2018 as incomplete.
In a manner identical to that set out at [60], on the application form, under the question 'Nature of any existing buildings and/or use', the Applicants included the following 'Equipment required as per attached'. The attached information included details as to the following equipment:
Yanmar excavator: required for 'bushfire safety, stormwater management and control, rural pursuit, property improvements'.
Yanmar loader: required for 'bushfire safety and management, maintaining driveways and pathways for disabled access, stormwater management and control, rural pursuit'.
On 19 February 2019, the City's Development Services Committee considered the application to renew the CVP Approval and recommended that the City (at the Council Meeting to be held 25 February 2019):
a)refuse the renewal application for the parking of a 1992 9.7 tonne commercial vehicle and a 2013 2.7 tonne commercial trailer at Lot 26 on the Land for the following reasons:
i)approving the application will have a significant effect on the amenity of the surrounding neighbourhood;
ii)the applicants have not demonstrated that the amenity of the neighbourhood will not be prejudicially affected by the emission of light, noise, vibration, smell, fumes, smoke or dust or the storage of unlicensed, derelict and or damaged motor vehicle; and
iii)the proposal is inconsistent with the objectives of the then Rural Living zone of LPS 4.
b)advise the Applicants of the Council's decision in this regard.
On 25 February 2019, the Council carried the City's Development Services Committee recommendation to refuse the renewal of the CVP Approval (for the reasons set out at [68] above).
On 6 March 2019, the City advised the Applicants that the renewal of the CVP Approval had been refused. This decision is the basis of the Commercial Vehicle Parking Application.
On 12 April 2019, the City advised the Applicants that the City had refused the application to use the Land for the purposes of a Rural Pursuit. The stated reason for refusal was that the application was not considered to be a 'Rural Pursuit' because the proposal by its terms - involved the parking and garaging of two or more 'commercial vehicles' which fits the land use definition of 'Transport Depot' under LPS 4. A 'Transport Depot' was an 'X' use within in the 'Rural Living' zone. This decision forms the basis of the Rural Pursuit Application.
On 6 March 2020, the Land was rezoned to Special Rural in LPS 4. A 'Transport Depot' is an 'X' use in the Special Rural Zone.

Having set out that background, I now turn to the relevant principles of construction for LPS 4.

Principles of construction

LPS 4 is a local planning scheme continued pursuant to s 68(1)(a) of the PD Act. LPS 4 is also a 'written law' for the purposes of s 5 of the Interpretation Act 1984 (WA) (Interpretation Act). LPS 4 is to be read and applied in accordance with the orthodox canons of construction: Brikmakers and City of Swan.[4]
[4] Brikmakers and City of Swan [2021] WASAT 66; (2021) 102 SR (WA) 314 [30].
The primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all the provisions of the statute: 2 Thomas Road Pty Ltd v Shire of Serpentine-Jarrahdale[5]; Director General of Department of Transport v McKenzie.[6]
[5] 2 Thomas Road Pty Ltd v Shire of Serpentine-Jarrahdale [2021] WASC 339 [35] (Smith J) (2 Thomas Road).
[6] Director General of Department of Transport v McKenzie [2016] WASCA 147; (2016) MVR 306 [46] (Buss P, Murphy JA & Beech J agreeing).
Importantly, LPS 4 is to be construed in accordance with its evident town planning purpose: Cann and Shire of Augusta-Margaret River[7]; Landcorp and City of Stirling.[8]
[7] Cann and Shire of Augusta-Margaret River [2021] WASAT 22 [70].
[8] Landcorp and City of Stirling [2011] WASAT 202 [26].
By reason of s 18 of the Interpretation Act, a construction that would promote the purpose or object underlying the written law (whether stated or not) is to be preferred as against a construction that would not promote that purpose or object.
However, s 18 does not direct me to apply a construction which 'will best achieve' the object of the legislation. Rather, s 18 of the Interpretation Act operates where there is more than one construction open. In such circumstances, s 18 provides that I should choose 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[9]; see also Dao Ji Association and City of Gosnells.[10]
[9] Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368 [37] (Banks-Smith J).
[10] Dao Ji Association and City of Gosnells [2020] WASAT 10 [96].
In construing a legislative provision the task is not to have regard to any assumptions about the desired operation of the relevant provisions of an Act: 2 Thomas Road[11]; Certain Lloyd's Underwriters v Cross[12]; see also Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd.[13]
[11] 2 Thomas Road [39].
[12] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J).
[13] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194[21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
However, as a matter of legislative context, it is relevant that planning schemes are not ordinarily drafted by Parliamentary Counsel: Sanders v City of South Perth[14]. As a result, planning schemes should be construed broadly and sensibly, not pedantically: Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton[15]; Re Shire of Mundaring; Ex Parte Solomon & Ors.[16]
[14] Sanders v City of South Perth [2019] WASC 226 [98][99] (Quinlan CJ).
[15] Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 [84] (Buss P, Murphy and Mitchell JJA) (Australian Unity).
[16] Re Shire of Mundaring; Ex Parte Solomon [2007] WASCA 132 [25] (McLure JA, Steytler P and Pullin JA agreeing) (Re Shire of Mundaring).
LPS 4, like all local planning schemes in Western Australia, includes the 'Deemed Provisions'. The Deemed Provisions are contained in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations). The Deemed Provisions apply perforce of s 257B(2) of the PD Act (together with reg 8(1)(c) and reg 10(4) of the LPS Regulations).

Principles that apply to written directions under the PD Act

In the context of the Written Directions, it is also the case that even if I find that there has been 'illegal development' for the purposes of s 214 of the PD Act, I retain a residual discretion as to whether to affirm the Written Directions: IpilatesPerth Pty Ltd and City of Joondalup (IpilatesPerth).[17]
[17] IpilatesPerth Pty Ltd and City of Joondalup [2020] WASAT 52 [26] (IpilatesPerth).
In IpilatesPerth, the principles that inform the exercise of discretion pursuant to s 255 of the PD Act were explained as follows by reference to, inter alia, the decision of Morea Architects and Town of Vincent.[18] These principles include:
(a)It is in the public interest of the proper and orderly development and use of land that planning law should generally be complied with. It is expected that, ordinarily, those who carry out subdivision or development will comply with planning legislation and any applicable approval. As Kirby P (as he then was) observed in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361 at 365 [Warringah Shire Council] unless the legislative purpose of planning is upheld, private advantage may accrue to individuals which others cannot enjoy.
(b)The impact of the contravention of the scheme on the relevant locality and the environment. This will involve an assessment as to whether the breach is technical in nature in that it is unnoticeable other than to those well versed in the relevant law.
(c)The factual circumstances in which the planning scheme was contravened.
(d)The time that has elapsed since the unauthorised development was undertaken.
(e)The expense and inconvenience which would be involved in remedying the contravention of the planning scheme.

Relevant scheme provisions

[18] Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301 [63] (Morea Architects).

LPS 4 includes a number of provisions which are relevant to these proceedings, although, of course, LPS 4 is to be read and applied as a whole.
Clause 1.5 sets out the purpose of LPS 4 which includes to 'control and guide land use and development' as well as to 'make provision' for the enforcement of LPS 4. Clause 1.6 sets out the aims of LPS 4 including 'to preserve and enhance the amenities of the district and to manage land uses so as to minimise conflicts between otherwise incompatible land uses'.
Clause 1.7 provides that 'unless the context otherwise requires' words and expressions from LPS 4 have the same meaning as they have in either:
(i)the PD Act;
(ii)Sch 1 to LPS 4 (if the term is a defined term); or
(iii)the Residential Design Codes.
Clause 3.2.13 sets out the objectives of the 'Special Rural' zone as follows:
(a)To provide for a bushland and/or semi-rural lifestyle based on defined lot sizes, land form and natural environmental characteristics with potential to undertake development incidental to the residence as well as a range of small scale agricultural land uses compatible with the site and locality's amenity and natural values.
(b)To ensure development is sited, designed and managed in harmony with the natural environment and so as to protect the vegetation, rural landscape and amenity of the site and locality.
The Zoning Table (cl 3.3.2 and Table 1) provides that the land use class 'commercial vehicle parking' is an 'A' use in the Special Rural Zone. An 'A' use means that the use is not permitted unless approved in the exercise of discretion following advertising pursuant to cl 64 of the Deemed Provisions. Likewise, a 'home business' is an 'A' use.
The use class 'transport depot' is prohibited in the Special Rural Zone. The use class 'rural pursuit' is a 'D' use, meaning that it is a use that may be approved in the exercise of planning discretion.
Clause 4B.4 of LPS 4 deals with car parking and vehicular access (including parking of commercial vehicles) in the rural zones of LPS 4 (including the Special Rural Zone). The following provisions are included:
4B.4.5No person shall park a commercial vehicle except for immediate delivery or loading purposes normally associated with a domestic or rural use, unless approved by the local government except in accordance with the following requirements:
a)on-site provision for garaging or parking of the vehicle behind the front building setback line, is to be made in a manner satisfactory to the local government; and
b)the amenity of the neighbourhood is not to be prejudicially affected by the emission of light, noise, vibration, smell, fumes, smoke or dust.
4B.4.6 Nothing in sub-clause 4B.4.5 restricts the parking of a commercial vehicle used for the purpose of an approved rural use or rural industry.
4B.4.7 An application for parking a commercial vehicle shall be subject to an application for annual approval and if in the opinion of the local government, a nuisance or annoyance to the owners or occupiers of land in the locality occurs as a consequence of the parking of a commercial vehicle, the local government may revoke or refuse to renew its approval.

The following definitions are found in Sch 1 to LPS 4:

commercial vehicle	means a licensed or unlicensed vehicle (including any trailer or attachment) whether in a serviceable condition or not, used, designed or intended to be used in the course of trade or commerce and includes vehicles described in the First Schedule to the Road Traffic Act 1974, but does not include a caravan, farm tractor, motor car, motor carrier, motor cycle, station sedan, station wagon or utility[.]
commercial vehicle parking	means premises used for the parking or garaging of a commercial vehicle[.]
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[.]
rural pursuit	means any premises used for – (a) the rearing or agistment of animals; (b) the stabling, agistment or training of horses; (c) the growing of trees, plants, shrubs or flowers for replanting in domestic, commercial or industrial gardens; (d) a riding school; or (e) the sale of produce grown solely on the lot, but does not include agriculture – extensive or agriculture – intensive[.]
storage	means premises used for the storage of goods, equipment, plant or materials[.]
transport depot	means premises used for the parking or garaging of two or more commercial vehicles, or premises used for the transfer of goods or people from one such vehicle to another and includes the maintenance and repair of such vehicles[.]

Issues for determination

The parties consider that the following issues arise for determination.

Written Direction Applications

1)Whether the Land is being used for unauthorised commercial vehicle parking. In particular whether:
a)the yellow compactor/roller is a 'commercial vehicle' for the purposes of LPS 4;
b)the Blue Isuzu is a 'utility' for the purposes of the definition of commercial vehicle in LPS 4; and
c)the yellow Yanmar excavator or the yellow Yanmar bobcat are:
i)commercial vehicles for the purposes of LPS 4; and/or
ii)authorised to be at the Land for firebreak management.

2)Whether the Land is being used for the purposes of a 'transport depot' for the purposes of LPS 4. In particular whether:
a)the transfer of items between commercial vehicles at the Land would constitute a transport depot; and
b)the truck and trailer combination, the subject of the Commercial Vehicle Parking Application constitutes one or two commercial vehicles for the purposes of ascertaining whether the Land is being used for the purposes of a transport depot.

3)Whether the Land is being used for the purposes of 'home business' for the purposes of LPS 4.
4)Whether the Land is being used for 'storage' for the purposes of LPS 4. In particular whether:
a)the sea container is being stored at the Land; and
b)if the yellow Yanmar excavator and/or the yellow Yanmar bobcat are not commercial vehicles and are not otherwise authorised to be on the Land for firebreak management (Issue 1), these items are being stored at the Land.

5)Whether the directions notices should be affirmed, varied or set aside.

Commercial Vehicle Parking Application

6)Whether the application for renewal of the authorisation for commercial vehicle parking should be approved (vehicle registration DB 4104 and trailer registration ITOQ 782).

Rural Pursuit Application

7)Whether the proposed activities described by the applicants require approval under LPS 4.
8)If the proposed activities do require approval under LPS 4, whether the proposed development is properly classified as a Rural Pursuit for the purposes of LPS 4.
9)If the proposed development is properly classified as a Rural Pursuit, whether the proposed development should be approved in the exercise of discretion.
10)Whether the parking of a commercial vehicle connected to an incidental use or an approved use (including any approved commercial vehicle parking), rural use or rural industry is to be considered in determining whether there is a transport depot on the Land for the purposes of LPS 4.

Evidence

Applicants' witnesses

The Applicants called the following witnesses:
a)Mrs Julie Moles (Exhibits 17, 28 and 29);
b)Mr Patrick Dawkins (Exhibit 18), an owner of nearby land who visits his property mainly on weekends. He sets out that in his experience it is common to have tractors, trailers and light utilities on land in this locality;
c)Ms Sandy Halligan (Exhibit 19), an owner of adjoining land. Ms Halligan's evidence is that she drives past the Land and considers that the gardens on the Land are 'really good' and 'tidy' and that she had not noticed that commercial vehicles were being parked on the Land;
d)Ms Una Yvonne Bridson (Exhibit 20), an owner of nearby land. Ms Bridson supports the Rural Pursuit Application; and
e)Ms Anne Sciarrone (Exhibit 21), an owner of nearby land. Ms Sciarrone supports the Rural Pursuit Application.
The only witness who was required to give oral evidence for the Applicants was Mrs Julie Moles. Mrs Moles evidence, across three witness statements, detailed inter alia the history of Moles Earthmoving and their purchase of the Land (including telephone enquiries made with the City).
Mrs Moles also explains the presence of vehicles and machinery on the Land. Mrs Moles is a qualified horticulturalist. Mrs Moles also put forward definitions of 'utility vehicle' as well as providing as responsive statement to the evidence of Mr Darren Cole (discussed below).

Respondent's witnesses

The City called the following witnesses:
(a)Mr David Catchlove (Exhibit 10), a compliance officer at the City. Mr Catchlove did not give oral evidence at the hearing;
(b)Mr Cole (Exhibits 26 and 27), the bushfire coordinator at the City. Mr Cole gave evidence as to management of firebreaks and the kind of equipment that would be needed, and how long it would take, to manage the firebreaks on the Land;
(c)Mr Glen Windass (Exhibits 11 and 24), the manager of Statutory Planning at the City. Mr Windass gave evidence about the manner in which the City had dealt with the Land and the question of the parking of commercial vehicles as well as the Rural Pursuit Application. He outlines the complaints that have been made to the City about the use and appearance of the Land; and
(d)Ms Sarah Wilkins (Exhibits 12 and 25), liaison and compliance officer at the City. Ms Wilkins gave evidence (including photographs) as to her site views of the Land in July, September and November 2017. Ms Wilkins was not required to give oral evidence.

Overview of the parties' cases

As I have explained, the genesis of all these proceedings is the City's concerns at the presence or storage of vehicles, plant and machinery on the Land, including some plant and equipment that is owned and used by Moles Earthmoving.
The City's 'investigations' as to the nature of the activities on the Land resulted in:
a)the City issuing the Written Directions. This, in turn, led to the Applicants seeking a review of those directions pursuant to s 255 of the PD Act. These applications comprise the Written Direction Applications;
b)the Applicants applying for and obtaining the CVP Approval which was initially granted for a 12 month period. The application to renew the CVP Approval was refused and forms the basis of the Commercial Vehicle Parking Application; and
c)the Applicants' application to undertake Rural Pursuits which was refused and which forms the basis of the Rural Pursuit Application.
In this way, these applications all have, at their core, the question of what vehicles, machinery, plant and equipment are present on the Land and which of these are, or should be, authorised to remain on the Land. This backdrop also informs and was the genesis for the Rural Pursuit Application, even though it is an application that is prospective in nature.
It is plain from the City's case that it is concerned as to the presence and extent of, to use an inelegant collective term, 'machinery' on the Land. The City regards the Rural Pursuit Application as a 'sham application' in the sense that it will be deployed by the Applicants as a device to allow, or to authorise, the keeping of further 'machinery' on the Land.
The Applicants do not deny, in large part, the presence of that 'machinery' on the Land, although they disagree with the extent to which some of that 'machinery' may be present (as the equipment is also used by Moles Earthmoving as required).
While I did hear a range of evidence, expert and otherwise, in large part the issues that are before me are questions of law that I must determine on the basis of facts (which are, as I have stated, in large part agreed).
That is especially so in the context of the Written Directions where the issues include classification, for the purposes of LPS 4, of the activities that are occurring on the Land. However, in saying that, I accept that in evaluating the question of whether something is 'development' in a town planning sense, questions of degree often arise: Claude Neon Limited v City of Perth[19]; Shire of Murray v Ivo Nominees Pty Ltd.[20]
[19] Claude Neon Limited v City of Perth [1983] WAR 147, 149 (Pidgeon J).
[20] Shire of Murray v Ivo Nominees Pty Ltd [2020] WASCA 45; (2020) 243 LGERA 89 [41] (Buss P, Mazza JA, Beech JA).

Analysis and disposition

Issue 1: Is the Land being used for commercial vehicle parking?

In particular whether:
a)the yellow compactor/roller is a 'commercial vehicle' for the purposes of LPS 4;
b)the Blue Isuzu is a 'utility' for purposes of the definition of 'commercial vehicle' in LPS 4;
c)the yellow Yanmar Excavator or the yellow Yanmar bobcat are:

Furthermore, now that there may be some clarity on some of the issues that have been in contest with the City, the Applicants may wish to consider their options in terms of progressing rural pursuits on the Land, including whether development approval is in fact needed.

Issue 10: Whether the parking of a commercial vehicle connected to an incidental use or an approved use (including any approved commercial vehicle parking), rural use or rural industry is to be considered in determining whether there is a transport depot on the Land for the purposes of LPS 4

This issue, as agreed between the parties, is not, I must say, entirely clear to me.
In any event, this issue is ultimately whether, in evaluating the question of whether there is a 'transport depot' on the Land, I am able to have regard to the presence of other commercial vehicles that are on the Land either on the basis that such vehicles are incidental to an existing lawful use or the subject of a separate approval, such as for commercial vehicle parking.
I have set out the relevant definition of 'transport depot' at [91]. For ease of reference I repeat it below:

transport depot

means premises used for the parking or garaging of two or more commercial vehicles, or premises used for the transfer of goods or people from one such vehicle to another and includes the maintenance and repair of such vehicles[.]

I have already set out some analysis of the relevant provisions relating to commercial vehicle parking within LPS 4 at [187]-[191]. To my mind, those provisions inform how this issue should be approached. As I explained at [188], cl 4B.4.6 provides that the restriction on commercial vehicles that applies by reason of cl 4B.4.5, does not apply to commercial vehicles that are associated with (are 'part and parcel' of') an approved rural use or rural industry.
The drafting of cl 4B.4.5 to cl 4B.4.7 tends to indicate that it is not the case that the mere presence of a certain number of vehicles on a lot means that it must be, for the purpose of LPS 4, regarded as a 'transport depot'. In my view, LPS 4 requires that the purpose or rational for the presence of each commercial vehicle to be ascertained.
If the commercial vehicles are 'part and parcel' of an approved rural use, then the use class 'transport depot' does not arise. This is because the Land would not be being used for 'the parking or garaging of two or more commercial vehicles, or premises used for the transfer of goods or people from one such vehicle to another'. Rather, the Land would be being used for the rural use. By reason of cl 3.4.1 of LPS 4, the commercial vehicles which may be properly regarded as being 'part and parcel' of a rural use, cannot also form part of a 'transport depot'.
As for the whether the presence of a commercial vehicle approved pursuant to cl 4B.4.7, could then be considered in relation to a question as to whether the use class transport depot arose, for the same reasons, the answer must be no. The use class transport depot would not arise as the commercial vehicles would be authorised by reason of an approval.
In my view, only where the presence of the commercial vehicles on land is either not authorised or does otherwise fall within another applicable land use, does the question of whether the use class transport depot arises.

Some final thoughts on the Rural Pursuit Application

This question does not arise based on my findings on Issue 8. However, I will add, for completeness, that if I were of the view, which I am not, there is only land use proposed by the Applicants being the rural pursuit, then I would nevertheless refuse it. My reasons follow.
A development approval is a unilateral act of the planning authority that is enduring in nature. The public nature and enduring effect of a development approval was explained by Spigelman CJ in Winn v Director General of National Parks and Wildlife[73] in the following terms:
A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has … an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.
[73] Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508, [4].
See also House of Peace Pty Ltd v Bankstown City Council.[74]
[74] House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 [23] (Giles JA, Mason P and Stein JA).
The development approval can authorise the construction of a building or structure or to undertake a range of activities, or both. Once granted, the development approval is to be interpreted according to its terms including other documents which need to be incorporated either expressly or by necessary implication: Quarry Products (Newcastle) Pty Ltd v Roads and Maritime Services [No 3].[75]
[75] Quarry Products (Newcastle) Pty Ltd v Roads and Maritime Services[No 3] [2012] NSWLEC 57 [112] (Sheahan J).
If were to accept the Rural Pursuit Application as proposed by the Applicants, then I would need to assess its overall impact, including the impact that arises from the proposed regular presence of the Yanmar Loader and the Yanmar Excavator.
In that assessment, I am also required by the Deemed Provisions to inter alia have due regard to the fact to the planning history of the Land. That history involves the ongoing presence of the sea container and the other commercial vehicles (the truck and trailer combination) which already impact on the amenity of the locality.
Taking all of these factors into consideration, in my view, the amenity impacts of the Rural Pursuit Application, in an overall sense, would be contrary to orderly and proper planning because it would authorise additional commercial vehicles to remain on the Land on a regular basis.
The cumulative effect of the range of commercial vehicles on the Land would have an adverse amenity impact on the locality and therefore should not be approved. I would have therefore reached the conclusion having regard to, and applying, the well-known principles in relation to amenity set out in Tempora Pty Ltd v Shire of Kalamunda[76] and Sunbay Developments.[77] In this regard, see also Cranston and Shire of Serpentine-Jarrahdale.[78]

Conclusion

[76] Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, 304.

[77] Sunbay Developments [21].

[78] Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19, [76]-[78].

For the foregoing reasons, I find that the correct and preferable decision is to affirm the Written Directions. However, as I have explained, I retain a discretion as to whether to vary them. I will vary the Written Directions to allow the Applicants 70 days from the date of these orders in which to comply with the requirements of the Written Directions.
I have also found that the correct and preferable decision is to dismiss the application for review of the Commercial Vehicle Parking Application on the basis that, as presented, it is too uncertain. I do consider that the Applicants and the City need to work together as to what the terms of a commercial vehicle parking arrangement on the Land may look like. However, it is not acceptable for the Applicants' to seek approval to store a trailer and then use that trailer to store further commercial vehicles on the Land (as that would no longer be commercial vehicle parking).
With respect to the Applicants' Rural Pursuit Application, I have found that what is proposed is two separate land uses. To the extent that the application involves a 'transport depot' or 'storage' uses, such uses are not permissible in the Special Rural Zone and cannot therefore be approved.
The rural pursuit application, stripped of its commercial vehicle component, should nevertheless be refused for two related reasons. First, the commercial arrangements proposed are wholly undeveloped and therefore uncertain. As I said, I am not even sure there is a commercial aspect to the rural pursuits.
Second, I am not certain that approval would be needed for the proposed rural pursuits if that is involved is planting out the Applicants' garden and the keeping of a few chickens. The Applicants' should reflect on these reasons and then engage with the City as to how best to progress their rural pursuit aspirations for the Land.
Orders
The Tribunal orders:
DR 69 of 2019 and DR 83 of 2019
1.The decision under review is affirmed.
2.The application for review is dismissed.
DR 153 of 2018 and DR 154 of 2018
1.The decision under review is varied as per Order 2.
2.Direction 2 in the City of Armadale's written direction issued pursuant to s 214(2) and s 214(3) of the Planning and Development Act 2005 (WA) and dated 22 May 2018 is varied as follows:
Delete the words:
'Within 65 days of the date of the service of this Written Direction on you …'.
And inserting the following:
'Within 70 days of the date of the Tribunal's orders in DR 153 of 2018 and DR 154 of 2018 …'.
3.The application for review is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
2 NOVEMBER 2021