Moore and City Of Wanneroo

[2017] WASAT 145

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   MOORE and CITY OF WANNEROO [2017] WASAT 145

MEMBER:   JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD:   2 AND 6 NOVEMBER 2017

DELIVERED          :   21 NOVEMBER 2017

FILE NO/S:   DR 198 of 2017

BETWEEN:   JOHN CHARLES MOORE

Applicant

AND

CITY OF WANNEROO
Respondent

Catchwords:

Town planning ­ Development application ­ Remedial massage centre ­ Innominate or unlisted use ­ Service Industrial zone ­ Whether remedial massage is not consistent with the objectives and purposes of the zone ­ Whether consistency with purposes / intent of zone is to be determined separately from consistency with objectives of zone ­ Proper approach to interpretation and application of planning schemes ­ Whether remedial massage is 'entertainment activity', 'recreational activity' or a 'complementary business service' to recreational activities ­ Words & phrases: 'complementary business service', 'entertainment activity', 'recreational activity', 'remedial massage'

Legislation:

City of Wanneroo Town Planning Scheme No 2, cl 1.9.1, cl 1.9.3, cl 3.2.2, cl 3.3, cl 3.6, cl 3.7, cl 3.7.2(b), cl 3.12.1, cl 3.12.2, cl 6.2.1, cl 6.2.2, cl 6.2.4, Table 1, Table 2, Sch 1
Interpretation Act 1984 (WA), s 56(1)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 10(4), Sch 2 (deemed provisions) cl 67
Planning and Development Act 2005 (WA), s 252(1), s 257B

Result:

Conditional development approval granted for remedial massage centre

Summary of Tribunal's decision:

Mr John Moore and his wife, Ms Fan Yoke Chan, have conducted a remedial massage business with development approval at premises in Irwin Road, Wangara for the past four years.  They wish to relocate their business to premises in Arrigo Street, Wangara, about 500 metres away.

The new site is zoned 'Service Industrial' under the City of Wanneroo Town Planning Scheme No 2.  Remedial massage centre is an innominate or unlisted use under the Scheme.  The City refused Mr Moore's application for development approval for change of use to enable the business to operate at the new site.  Mr Moore sought review of that decision by the Tribunal.

The principal issue for determination by the Tribunal was whether the proposed remedial massage centre use:

(as the City contended) is not consistent with the objectives and purposes of the zone and is therefore 'not permitted', that is, it is a use which must be refused consent under the Scheme; or

(as Mr Moore contended) is consistent with the objectives and purposes of the zone and is therefore 'permitted', that is, it is a use which may not be refused consent, but may be conditioned under the Scheme, or may be consistent with the objectives and purposes of the zone, in which case it is a use which may be approved or refused in the exercise of planning discretion under the Scheme.

The Tribunal determined that the proposed use may be consistent with the objectives and purposes of the zone, because it is a 'complimentary business service' to 'recreational activities' (such as martial arts centres, gyms and dance centres) which are permissible and exist in the zone, it can be accommodated in the zone and it would not detrimentally affect the amenity of the area.

The Tribunal also determined that the correct and preferable decision in the circumstances of this case is to grant conditional development approval for the proposed use.

The City proposed four conditions to regulate the approved development.  The only condition in dispute related to the hours of operation.  The Tribunal restricted the hours of operation to those proposed by Mr Moore, namely 9 am to 8 pm seven days a week, rather than more restricted hours proposed by the City.  This is because there was evidence that other businesses in the area operate in the evenings and that martial arts centres operate on weekends, and the Council had approved recreation centre uses without imposing any conditions restricting hours of operation (even though two of these were proposed to operate in the evenings).

Finally, the Tribunal noted that the City has been aware since an earlier decision of the Tribunal in May 2010 that remedial massage centre is an innominate or unlisted use under the Scheme, but does not appear to have initiated a Scheme amendment to list that use and nominate its permissibility in the various zones.  The Tribunal observed that it is in the interests of orderly and proper strategic and statutory planning for an identified innominate use to be specifically listed in the Zoning Table and for the Scheme to expressly nominate whether the use is prohibited, permitted (but may be conditioned), or may be approved or refused in the exercise of planning discretion, in the various zones.  The Tribunal observed that this would provide greater certainty and avoid public and private resources having to be incurred is the complex task of assessment as to whether an unlisted use is consistent with, may be consistent with, or is not consistent with the objectives and purposes of the zone.

Category:    B

Representation:

Counsel:

Applicant:     Mr T Cockman

Respondent:     Mr M Gregory

Solicitors:

Applicant:     Justice Legal Pty Ltd

Respondent:     Castledine Gregory

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

Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44

Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312

Pearce and City of Wanneroo [2010] WASAT 77

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. For the past four years, Mr John Moore and his wife, Ms Fan Yoke Chan, have conducted a business trading as Touch of Asia providing 'deep tissue remedial massage' services at Unit 3 No 1 Irwin Road, Wangara.  That property is zoned 'Business' under the City of Wanneroo Town Planning Scheme No 2 (DPS 2 or Scheme) and Mr Moore and Ms Chan sought and obtained development approval from the City of Wanneroo (City or Council) for change of use to 'remedial massage facility' to authorise that development.

2. Mr Moore and Ms Chan wish to relocate their remedial massage business to Unit 6 No 4 Arrigo Street, Wangara (site), which is about 500 metres away from their current business premises  The site forms part of a six unit strata complex and is currently used as a martial arts centre.  Mr Moore and Ms Chan have made an offer to purchase the strata lot comprising the site.

3. The site is zoned 'Service Industrial' under DPS 2 and 'Industrial' under the Metropolitan Region Scheme (MRS).

4. On 13 April 2017, Mr Moore applied to the City for development approval under DPS 2 and the MRS for change of use of the site to 'remedial massage parlour'.  More appropriately and consistently with the Tribunal's decision in Pearce and City of Wanneroo [2010] WASAT 77, the proposed use is described as 'remedial massage centre' and will be referred to as such in these reasons.

5. The Tribunal determined in Pearce and City of Wanneroo as follows [28]:

   … As a 'massage centre' is not specifically mentioned in the Zoning Table (Table 1) of DPS 2 and cannot reasonably be determined as falling within the interpretation of one of the use categories under the Scheme, it is an unlisted use for the purposes of cl 3.3 of the Scheme.

6. Clause 3.3 of DPS 2 states as follows:

   If the use of the land for a particular purpose is not specifically mentioned in Table 1 and cannot reasonably be determined as falling within the interpretation of one of the use categories the Local government may:

   (a)determine that the use is consistent with the objectives and purposes of the particular zone and is therefore permitted; or

   (b)determine that the proposed use may be consistent with the objectives and purposes of the zone and thereafter follow the 'D' procedures of Clause 6.2.2 in considering an application for development approval; or

   (c) determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore not permitted.

7. It is common ground in this case that, following Pearce and City of Wanneroo, the proposed remedial massage centre use is a 'use of land for a particular purpose that is not specifically mentioned in Table 1 [the Zoning Table] [of DPS 2] and cannot reasonably be determined as falling within the interpretation of one of the use categories' in terms of cl 3.3 of the Scheme.  The proposed use is therefore an innominate or unlisted use for the purposes of the Scheme and its permissibility is to be determined by the City (and by the Tribunal or review) in accordance with paras (a), (b) and (c) of cl 3.3 of DPS 2.

8. On 8 May 2017, the Council refused Mr Moore's development application for the following reason:

   The proposed Unlisted Use (Massage Parlour) is not consistent with the objectives and purposes of the Service Industrial zone stated in Clause 3.12 of District Planning Scheme No. 2 and therefore, is not permitted in accordance Clause 3.3 of District Planning Scheme No. 2.

9. On 12 June 2017, Mr Moore sought review by the Tribunal of the Council's decision pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).

10. The principal issue for determination in this review is whether the proposed remedial massage centre use:

    •(as the City contends) 'is not consistent with the objectives and purposes of the [Service Industrial] zone and is therefore not permitted' (cl 3.3(c) of DPS 2), that is, it is a use which must be refused consent under the Scheme (cf cl 3.2.2 and cl 6.2.4 of DPS 2 '''X" Uses'); or

    •(as Mr Moore contends) 'is consistent with the objectives and purposes of the [Service Industrial] zone and is therefore permitted' (cl 3.3(a) of DPS 2), that is, it is a use which may not be refused consent by reason of the unsuitability of the use, but may be conditioned under the Scheme (cf cl 3.2.2 and cl 6.2.1 of DPS 2 '''P" Uses'), or 'may be consistent with the objectives and purposes of the [Service Industrial] zone' (cl 3.3(b) of DPS 2), in which case it is a use which may be approved or refused in the exercise of planning discretion under the Scheme (cf cl 3.2.2 and cl 6.2.2 '''D" Uses'). 

11. For reasons set out below, in my view, the proposed remedial massage centre use may be consistent with the objectives and purposes of the Service Industrial zone and is therefore a use which may be approved or refused in the exercise of planning discretion under the Scheme.  As indicated further below, if (as I have determined) the proposed development can be approved in the exercise of planning discretion, the City does not raise any substantive planning issue against development approval being granted for the proposed use.  In particular, the City does not contend that the proposed development would have any adverse impact on the amenity or character of the locality or that it would have any other adverse planning impact. 

12. As the proposed development is permissible and the City has not identified any substantive issue militating against development approval being granted, the correct and preferable decision in this case is to grant conditional development approval for the proposed use.

13. As indicated further below, there is a dispute between the parties in relation to the hours of operation that the proposed development should be restricted to under a condition of development approval.  For reasons set out below, Mr Moore's and Ms Chan's current trading hours of 9.00 am to 8.00 pm seven days a week should also be permitted in relation to the remedial massage centre use at the site. 

Is the proposed remedial massage use not consistent with the objectives and purposes of the zone?

1. The objectives and purposes of the Service Industrial zone are set out in cl 3.12 of the Scheme as follows:

   3.12.1The Service Industrial Zone is intended to provide for a wide range of business, industrial and recreational developments which the Local government may consider would be inappropriate in Commercial, Business and General Industrial Zones and which are capable of being conducted in a manner which will prevent them being obtrusive, or detrimental to the local amenity.

   3.12.2The objectives of the Service Industrial Zone are to:       

   (a)accommodate a range of light industries, showrooms and warehouses, entertainment and recreational activities, and complementary business services which, by their nature, would not detrimentally affect the amenity of surrounding areas;

   (b)ensure that development within this zone creates an attractive façade to the street for the visual amenity of surrounding areas.

2. The City submits that the proposed remedial massage centre use is not consistent with the objectives and purposes of the Service Industrial zone for two reasons.

3. The City submits that, on the proper interpretation of cl 3.3 of the Scheme, a proposed unlisted use must be assessed as to whether it is consistent with, may be consistent with, or is not consistent with the stated 'purposes' (or intent) of the particular zone and then must be assessed separately as to whether it is consistent with, may be consistent with, or is not consistent with the stated 'objectives' of the particular zone, in order to determine whether the use is capable of approval under the Scheme.  The City submits, therefore that cl 3.12.1 and cl 3.12.2 of DPS 2 create two separate requirements or 'hoops' for the development application made by Mr Moore.

4. The City submits, further, that if the proposed use is found not to be consistent either with the intent (or purposes) of the Service Industrial zone stated in cl 3.12.1 of DPS 2 or with the objectives of the Service Industrial zone stated in cl 3.12.2 of DPS 2, then it is 'not permitted' under cl 3.3(c) of the Scheme.  As indicated earlier, the words 'not permitted' mean that the use must be refused consent under the Scheme (cf cl 3.2.2 and cl 6.2.4 of DPS 2 '''X" Uses').

5. The City also refers to the joint evidence of the town planning expert witnesses, Ms Amanda Butterworth, who was called by the City, and Mr Cane Spaseski, who was called by Mr Moore.  The town planning expert witness both expressed the opinion that a remedial massage centre is capable of approval in and is consistent with the objectives and purposes of the Business zone and the Commercial zone under the Scheme.  The town planning expert witnesses also both expressed the opinion that a remedial massage centre use would therefore not be inappropriate in the Commercial and Business zones.

6. The City submits, in consequence of its proposed interpretation of cl 3.3 of DPS 2 and the joint evidence of the town planning expert witnesses (that the proposed remedial massage centre use would not be inappropriate in the Commercial and Business zones), that the proposed remedial massage centre use 'fails to get through a critical hoop' in cl 3.12.1 of DPS 2 and is, therefore, 'not permitted' under cl 3.3(c) of DPS 2 and hence must be refused consent.

7. In short, the City's first submission as to why it says that the proposed use is not consistent with the objectives and purposes of the Service Industrial zone is that the use would not be inappropriate in the Commercial and Business zones, whereas, it contends, cl 3.12.1 of DPS 2 precludes from the Service Industrial zone all business, industrial and recreational developments which would not be inappropriate in the Commercial, Business and General Industrial zones.

8. I do not accept the City's first submission for the following reasons.

9. The principles in relation to the proper interpretation of provisions of local planning schemes were set out by the Tribunal in Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 as follows [20] ­ [21]:

   Under s 87(4) of the PD Act, [a local planning scheme] 'has full force and effect as if it were enacted by [the PD Act]'. The Court of Appeal has recently said the following in relation to statutory interpretation:

   The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46­47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78]. (City of Kwinana v Lamont [2014] WASCA 112 at [47]).

   In giving the words of a planning scheme the meaning that the maker of the scheme is taken to have intended them to have, the terms of the planning instrument:

   … will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.

   (Chiefari v Brisbane City Council [2005] QPELR 500 at 502 (Wilson J); referred to by the Tribunal in Galloway and Associates and City of Melville [2007] WASAT 238 at [41]).

10. In my view, on its proper interpretation, cl 3.3 of DPS 2 does not create two separate requirements or 'hoops' of consistency with the purposes (or intent) of the zone, on the one hand, and consistency with the objectives of the zone, on the other, that a proposed unlisted use must separately, successfully pass through before it can be approved. 

11. Clause 3.3 of DPS 2 uses the composite expression 'the objectives and purposes of the particular zone' in each of par (a) and par (c) and uses the same composite expression without the word 'particular' in par (b).  In light of this composite expression in cl 3.3 of DPS 2 and the proper approach to giving the words of a planning scheme the meaning that the maker of the scheme is taken to have intended them to have, referred to earlier, in my view, cl 3.12.1 and cl 3.12.2  of DPS 2 do not prescribe separate requirements or 'hoops', but rather must be read as a whole and applied in a practical and commonsense, and not in an overly technical way, and in a fashion which will best achieve their evident planning purpose.

12. The evident planning purpose of cl 3.12.1 and cl 3.12.2 of DPS 2 is for the Service Industrial zone to accommodate a wide range of light industries, showrooms, warehouses, entertainment activities, recreational activities and complementary business services which can be suitably accommodated in the zone and which, by their nature, would not detrimentally affect the amenity of the area.

13. Furthermore, in my view, it could not have been the intention of the maker of the Scheme to preclude from the Service Industrial zone all business, industrial and recreational developments which would not be inappropriate in the Commercial, Business and General Industrial zones, for the following four reasons.

14. First, cl 3.12.1 uses the words 'may consider', rather than 'does consider' or 'considers'.  The use of the word 'may' indicates a legislative intent to confer discretion and flexibility; cf s 56(1) of the Interpretation Act 1984 (WA) ('Where in a written law the word may is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion').

15. Secondly, the evident purpose of the words 'which the [l]ocal government may consider would be inappropriate in Commercial, Business and General Industrial Zones' is to accommodate in the Service Industrial zone business, industrial and recreational developments which the Council may consider would be inappropriate in the Commercial, Business and General Industrial zones, not to preclude from the Service Industrial zone all business, industrial and recreational developments which would not be inappropriate in those other zones.

1. Thirdly, even if a particular business, industrial or recreational development would not be inappropriate in the Commercial, Business or General Industrial zones, it may nevertheless not merit development approval in the exercise of planning discretion in those zones.

2. Fourthly, if cl 3.12.1 of DPS 2 would preclude from the Service Industrial zone all business, industrial and recreational developments which would not be inappropriate in the Commercial, Business and General Industrial zones, then parts of cl 3.12.2 of DPS 2 would be rendered otiose.

3. The objectives and purposes of the Commercial zone are set out in cl 3.7 of the Scheme as follows:

   3.7.1The Commercial Zone is intended to accommodate existing or proposed shopping and business centres where the planning of the locality is well advanced.

   3.7.2The objectives of the Commercial Zone are to:

   (a)make provision for existing or proposed retail and commercial areas that are not covered currently by a Structure Plan;

   (b)provide for a wide range of uses within existing commercial areas, including retailing, entertainment, professional offices, business services and residential.

   (emphasis added)

4. As the objectives of the Commercial zone include to 'provide for a wide range of uses within existing commercial areas, including … entertainment … [and] business services …' (cl 3.7.2(b) of DPS 2), entertainment and business services uses within existing commercial areas would not be inappropriate in the Commercial zone.  As set out earlier, the objectives of the Service Industrial zone include to 'accommodate a range of … entertainment … activities, and complementary business services …'.

5. If cl 3.12.1 of DPS 2 would preclude from the Service Industrial zone all business developments involving an unlisted use which would not be inappropriate in the Commercial zone, then the words '… entertainment … activities, and complementary business services' in cl 3.12.2 of DPS 2 would be otiose, because those uses would not be inappropriate within existing commercial areas zoned Commercial under the Scheme.  The presence of those words is a textual indication that it could not have been the intention of the maker of the Scheme to preclude from the Service Industrial zone all business, industrial and recreational developments which would not be inappropriate in the Commercial, Business and General Industrial zones.  The presence of those words also underscores my determination that cl 3.12.1 and cl 3.12.2 of DPS 2 must be read as a whole and applied in a practical and commonsense, and not in an overly technical way, and in a fashion which will best achieve their evident planning purpose.

6. Ms Butterworth considers, and City concedes, that the proposed remedial massage centre use, by its nature, 'would not detrimentally affect the amenity of surrounding areas' (cl 3.12.2(a) of DPS 2) and is therefore consistent with that aspect of the objectives of the Service Industrial zone.  The City also accepts that, because the proposed use would be internal to the building and does not involve any external physical works, the objective of the zone to 'ensure that development within this zone creates an attractive façade to the street for the visual amenity of surrounding areas' (cl 3.12.2(b) of DPS 2) is not relevant to the proposal. 

7. However, the City's second submission as to why it says that the proposed use is not consistent with the objectives and purposes of the Service Industrial zone is that it is not consistent with the zone objectives, because it does not fall within any of the land uses or categories of land uses referred to in cl 3.12.2(a) of the Scheme.  As indicated earlier, the land uses or categories of land uses referred to in the objective of the zone in that provision are 'light industries, showrooms and warehouses, entertainment and recreational activities, and complementary business services'. 

8. The meaning of each of the land use classes 'industry ­ light', 'industry', 'showroom' and 'warehouse' is defined in Sch 1 to the Scheme.  Under cl 1.9.1 of DPS 2, the defined meanings given to those land use classes in Sch 1 apply when the term is used in the Scheme.  However, it is unnecessary to set out those definitions, because it is common ground, and plainly the case, that the proposed use does not fall within the defined meaning of 'light industry' (which incorporates the definition of 'industry'), 'showroom' or 'warehouse'.

9. There is a dispute between the parties as to whether the proposed use falls within the meaning of the words 'recreational activity', 'entertainment activity', or 'complementary business service' in cl 3.12.2(a) of DPS 2.  The City submits that the proposed use does not fall within the meaning of any of those terms, whereas Mr Moore submits that the proposed use is a 'recreational activity' or a 'complementary business service'.  In opening Mr Moore's case, Mr T Cockman also said that the use could possibly be an 'entertainment activity'. 

10. The terms 'entertainment activities', 'recreational activities' and 'complimentary business services' are not defined in the Scheme or in the deemed provisions for local planning schemes set out in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015(WA) (LPS Regs) (model provisions) which under s 257B of the PD Act and reg 10(4) of the LPS Regs are applicable to all local planning schemes. These expressions are also not defined in State Planning Policy 3.1 ­ Residential Design Codes of Western Australia.  Consequently, under cl 1.9.3 of DPS 2, these expressions 'shall have their normal and common meanings'.

11. Before referring to the normal and common (dictionary) meanings of the terms in question, it is instructive to set out the apposite dictionary meanings of the words 'remedial' and 'massage' in order to appreciate the nature and purpose of the proposed use.

12. The adjective 'remedial' relevantly means (Macquarie Dictionary, (6^th ed), 2013, at page 1242):

    1.   affording remedy; tending to remedy something.  2.  of or relating to the treatment of physical defects with exercises, etc., rather than by medical or surgical means.

13. The noun 'remedy' is relevantly defined in the Macquarie Dictionary at page 1242 as follows:

    something that cures or relieves a disease or bodily disorder; a healing medicine, application, or treatment.

14. The verb 'to remedy' is relevantly defined in the Macquarie Dictionary at page 1242 as follows:

    to cure or heal.

15. The noun 'massage' is defined in the Macquarie Dictionary at page 906 as follows:

    the act or art of treating the body by rubbing, kneading, or the like, to stimulate circulation, increase suppleness, etc.

16. 'Remedial massage', therefore, involves treating the body by rubbing, kneading, or the like, in order to cure, relieve or heal physical defects. 

17. This meaning is consistent with Mr Moore's evidence before the Tribunal and his explanation of the proposed use to the City's assessing planning officer while the development application was being considered by the Council. 

18. In his evidence, Mr Moore characterised the business which he has run in partnership with his wife for the past four years as providing 'deep tissue remedial massage services'.  Mr Moore also gave evidence that, in his observations, 'people get a massage because it is relaxing and therapeutic'. 

19. When, during his oral evidence, Mr Moore was asked as to why people obtain massages, he replied:

    People who use the body as a ­ tool … electricians, plumbers, builders.  They need it ­ becoming more and more necessary.

    (T:71; 02.11.17)

20. In an email to the City's assessing planning officer dated 5 May 2017, Mr Moore said:

    The benefits from deep tissue massage align with physio/chiro, and we can provide testimonials from regular clients.as [sic] to the positive outcome.

21. Both the ordinary meaning of 'remedial massage' and the evidence therefore indicates that the proposed remedial massage centre land use involves treating the body by rubbing, kneading, and the like, in order to cure, relieve or heal physical defects.

22. The adjective 'recreational' is relevantly defined in the Macquarie Dictionary at page 1229 as follows:

    of, relating to, or used for recreation.

23. The noun 'recreation' is relevantly defined in the Macquarie Dictionary at page 1229 as:

    a pastime, diversion, exercise, or other resource affording relaxation and enjoyment.

24. As indicated earlier, Mr Moore gave evidence that, in his observations, 'people get a massage because it is relaxing and therapeutic'.  In cross-examination, Ms Butterworth said that she has had deep tissue massage for back and shoulder injuries and disagreed with Mr Moore that it is 'relaxing'.  In answer to a question as to how deep tissue massage made her feel, Ms Butterworth replied:

    It's painful.  I do not consider it any form of relaxation. 

    (T:136; 02.11.17)

25. Having regard to Mr Moore's statement to the City's assessing planning officer that '[t]he benefits from deep tissue massage align with physio/chiro', and on the basis of guidance drawn from the definition of the land use class 'recreation centre' in Sch 1 of DPS 2 and the use classes listed under the heading 'Recreation' in Table 2 of the Scheme, Ms Butterworth expressed the opinion that the proposed use is not a 'recreational activity'.

26. The use class 'recreation centre' is nominated in the Zoning Table (Table 1) of DPS 2 a discretionary ('D') use which may be approved in the exercise of planning discretion in the Service Industrial zone.  'Recreational centre' is defined in Sch 1 of DPS 2 as follows:

    recreation centre: means any premises used for physical exercise or sports including swimming, ice skating, ten pin bowling, cricket, tennis, squash, soccer, billiards and similar activities.

27. Table 2 of DPS 2 prescribes car parking standards for nominated use classes under the Scheme.  Under the heading 'Recreation', Table 2 of DPS 2 lists only three use classes, namely 'Golf Course', 'Recreation Centre' and 'Special Place of Assembly'.

28. In light of these provisions of DPS 2, Ms Butterworth expressed the opinion that 'Recreational Land Uses relate to uses where physical exercise or sports are undertaken or observed' and therefore that the proposed use is not a 'recreational activity'.

29. In my view, although it is permissible to seek textual guidance from other provisions of a planning scheme when ascertaining the meaning of a term that is used, but not defined, in the scheme, I am not satisfied on the basis of the definition of 'recreation centre' and the limited use classes under the heading 'Recreation' in Table 2 of DPS 2, and Ms Butterworth's consequent expert opinion, that the term 'recreational activities' in cl 3.12.2(a) of DPS 2 is limited to 'uses where physical exercise or sports are undertaken or observed'. 

30. The term 'recreational activities' is different to, and considerably broader than, the defined land use classification 'recreation centre'.  Furthermore, Table 2 of DPS 2 prescribes car parking standards for certain land use classes which are listed in the Zoning Table (Table 1) of the Scheme.  The term 'recreational activities' in cl 3.12.2(a) of DPS 2 is not limited to nominated or listed use classes under the Scheme.  It is also a different term to 'Recreation' which is used in Table 2 of DPS 2.

31. In my view, the ordinary meaning of the term 'recreational activities' applies.  A recreational activity is therefore an activity involving a pastime, diversion, exercise, or other resource affording relaxation and enjoyment.

32. However, in my view, remedial massage is not a 'recreational activity' according to the ordinary meaning of these words.  Although some people may find remedial massage to be relaxing and enjoyable, its character and purpose, as denoted by the adjective 'remedial', is to cure, relieve or heal physical defects.  The character and purpose of the proposed land use is remedial and therapeutic, rather than relaxing and enjoyable.  The proposed use is, therefore, not, in my view, a 'recreational activity'.

33. Mr Cockman submitted on behalf of Mr Moore that the proposed use is a 'complementary business service' for either of two reasons.

34. First, Mr Cockman relied on the evidence of Mr Spaseski who expressed the opinion that a remedial massage centre is a complementary business service, because the Service Industrial zone in Wangara is 'predominantly an employment area' and '[m]any people would attend massage after work'. 

35. However, as Mr Gregory suggested to Mr Spaseski during cross‑examination (although Mr Spaseski rejected the proposition) and as Mr Gregory submitted in his closing address, Mr Spaseski's analysis makes the meaning of 'complementary business service' 'too wide'.  Indeed, in my view, Mr Spaseski's assessment is so wide as to make the words 'complementary business service' almost meaningless.  According to Mr Spaseski's opinion, any business land use providing a service that people employed in the zone may wish to attend before or after work, or at lunchtime, would be a 'complementary business service'.  That cannot be correct. 

36. Secondly, Mr Cockman submitted that the proposed remedial massage centre use is a 'complementary business service', because it is complimentary to martial arts, dancing, gym and fitness land uses which exist in the zone.  In my view, this submission is correct.

37. The adjective 'complementary' is defined in the Macquarie Dictionary at page 310 as follows:

    1.    forming a complement; completing.  2.        complementing each other.

38. The noun 'complement' is relevant defined in the Macquarie Dictionary at page 310 as follows:

    1.  that which completes or makes perfect. … 3.  either of two parts or things needed to complete the whole.

39. I accept Ms Butterworth's opinion that, when used in the present planning context, a 'complementary business service' is one that is complementary to 'the actual land use[,] not the people who take part in the land use' (T:145; 2/11/17).  Thus, a 'complementary business service' is a business land use providing a service which forms a complement to or completes another land use operating in the zone.

40. Mr Moore gave evidence, which was not questioned or contradicted and which I accept, that there are at least ten martial arts centres, at least five gyms or fitness centres and at least six dance centres operating in Wangara.  Mr Moore listed these businesses in his witness statement.

41. Mr Timothy Dawson, who is the Senior Planner, Approval Services at the City, gave evidence, which was not questioned or contradicted and which I accept, that the ten martial art centres, five gyms or fitness centres and six dance centres referred to by Mr Moore in his evidence all fall within the land use class 'recreation centre' under DPS 2.  As Mr Dawson also said, under the Zoning Table of the Scheme, 'recreation centre' 'is a discretionary ('D') use in the Service Industrial Zone'. 

42. Mr Moore also gave the following evidence, which was not questioned or contradicted and which I accept:

    Some people attend [for a remedial massage at the current premises] prior to martial arts.  It is common for sports oriented people to get a massage.  I had a friend who was a tri­athlete who would have had a massage before and after competition.  You can see it on TV when sportspeople receive a massage prior to a game.

43. On the basis of Mr Moore's evidence, and having regard to the nature and purpose of remedial massage discussed earlier, I find that the proposed remedial massage centre use is a business land use providing a service which forms a complement to or completes the land uses of martial arts centres, gyms and dance centres in the zone.  As Mr Dawson said, martial arts centres, gyms and dance centres fall within the land use class 'recreation centre' under DPS 2.  These uses are also 'recreational activities' according to the ordinary meaning of those words for the purposes of cl 3.12.2(a) of DPS 2.  A remedial massage centre use provides a service which forms a complement to or completes uses such as martial arts centres, gyms and dance centres, because participation in those recreational activities may give rise to muscle strains and other musculoskeletal injuries necessitating treatment by remedial massage in order to cure, relieve or heal physical defects.

44. Ms Butterworth expressed the opinion that the proposed remedial massage centre use does not complement the other uses permissible in the Service Industrial zone, because treatment or personal service uses, such as 'medical centre' and 'beauty parlour', are prohibited ('X') uses in the Service Industrial zone.  In particular, Ms Butterworth reasoned that, because 'medical centre' is prohibited in the Service Industrial zone, this indicates that uses of a similar nature which involve treatment are not consistent with the objectives and purposes of the zone. 

45. The land use class 'medical centre' and the term 'consulting room' are defined in Sch 1 of DPS 2 as follows:

    medical centre:  means premises accommodating two or more consulting rooms.

    consulting room:  means a building used by not more than one health consultant at any one time for the investigation or treatment of human injuries or ailments and for general patient care.

46. In Pearce and City of Wanneroo the Tribunal determined [24] that a masseuse is not a 'health consultant' and [27] that '[t]he client of a masseuse is not a "patient" and massage therefore does not involve "general patient care'''.  The Tribunal also held [28] that, in consequence, 'a building used for massage is not a "consulting room" within the meaning of DPS 2' and that '[c]onsequently, a "massage centre" is not a "medical centre" within the meaning of the Scheme'.

47. Ms Butterworth acknowledged that the proposed land use is not a 'medical centre' involving 'consulting rooms', but expressed the opinion that 'it is relevant to consider the proposed use in context of similar uses to assist in the assessment of this use'.  Ms Butterworth reasoned that, in so far as the proposed use involves treatment, it is similar to physiotherapy, which is prohibited in the Service Industrial zone as a 'medical centre', but is a permitted ('P') use in the Commercial and Business zones under the Scheme.  Ms Butterworth reasoned that, in consequence, the proposed use is not consistent with the objectives and purposes of the Service Industrial zone, but rather is contemplated by the Scheme as being located in the Commercial and Business zones.

48. As the Tribunal said in Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44 [96], 'guidance can be obtained as to the objectives and purposes of the zone from the land uses which are permitted and not permitted'. However, in my view, the expression 'complementary business services' in cl 3.12.2(a) of the Scheme is wide and, for reasons set out earlier, relevantly includes remedial massage centre.

49. Furthermore, although physiotherapy may well include remedial massage, it is a health profession involving many other forms of patient care and treatment.  I do not consider that the prohibition of other personal services or the specific prohibition of 'medical centre' in the Service Industrial zone indicates that remedial massage centre land use is not consistent with the objectives and purposes of the zone.

50. Finally, and for completeness, I do not consider that the proposed remedial massage centre use is an 'entertainment activity' within the meaning of cl 3.12.2(a) of DPS 2.  As indicated earlier, in opening, Mr Cockman suggested on behalf of Mr Moore that the proposed use could possibly be an entertainment activity.

51. The noun 'entertainment' is relevantly defined in the Macquarie Dictionary at page 493 as follows:

    something affording diversion or amusement, especially an exhibition or performance of some kind.

52. Plainly, remedial massage is not 'entertainment'.  It is not something affording diversion or amusement, and is certainly not an exhibition or performance.

53. In my view, the proposed remedial massage centre use may be consistent with the objectives and purposes of the Service Industrial zone, because it is a 'complementary business service' to 'recreational activities' which are permissible and which exist in the zone, it can be accommodated in the zone and it would not detrimentally affect the amenity of the area.  The proposed use may therefore be approved or refused in the exercise of planning discretion under the Scheme.

1. Finally, I note that in his witness statement, Mr Spaseski referred to his experience of 'light/service industrial zones generally', that is not just in relation to DPS 2, but in other local government areas as well.  He also specifically referred to the provisions of other local government planning schemes which contain light/service industrial zones. 

2. I accept the City's submission that these are not relevant matters for consideration under DPS 2 or cl 67 of the deemed provisions.  Although the paragraphs of Mr Spaseski's witness statement referring to his experience of other light/service industrial zones and the provisions in other local planning schemes were not objected to, I have disregarded those paragraphs on the basis that they are irrelevant.

Should development approval be granted?

1. I have found that the proposed remedial massage centre use may be consistent with the objectives and purposes of the Service Industrial Zone.  In accordance with cl 3.3(b) of DPS 2, I must now 'follow the "D" procedures of cl 6.2.2 in considering an application for development approval'.

2. Clause 6.2.2 of DPS 2 states as follows:         

   'D' Uses –The Local government in exercising its discretion as to the approval or refusal of an application for Development approval, shall have regard to the provisions of Clause 67 of the deemed provisions.

   If in any particular case Local government considers that it would be appropriate to consult with the public generally or with the owners or occupiers of properties adjoining or in the vicinity of a site the subject of an application for Development approval involving a 'D' use, the Local government may direct that the provisions of Clause 64 of the deemed provisions shall apply to that application.

3. Under cl 67 of the deemed provisions, in considering the application for development approval, the Tribunal is required to have 'due regard' to the matters set out in the paragraphs of that clause to the extent that, in the opinion of the Tribunal, those matters are relevant to the development.  I accept Ms Butterworth's evidence that the following matters referred to in cl 67 of the deemed provisions are relevant to the proposed development:

   (a)the aims and provisions of this Scheme …;

   (b)the requirements of orderly and proper planning …;

   …

   (m)the compatibility of the development with its setting …;

   (s)the adequacy of ­

   (i)the proposed means of access to and egress from the site; and

   (ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;

   …

4. As indicated earlier, the City has not raised any substantive planning issue in relation to the proposed development.  In particular, the City does not contend that the proposed development would have any adverse impact on the amenity or character of the locality or that it would have any other adverse planning impact.

5. In opening the City's case, Mr Gregory foreshadowed a potential issue as to whether approval of the proposed use would be contrary to orderly and proper planning, because the Council has refused three development applications for massage centres in the zone since 2010 and has not approved any development application for such a use in the zone over that period of time.  However, following a discussion during the hearing, in his closing submissions Mr Gregory properly conceded that if the Tribunal determines that the use is or may be consistent with the objectives and purposes of the zone, then the issue of orderly and proper planning in terms of consistent decision-making does not arise, because the Council refused the other development applications on the basis that it had determined that the use is not consistent with the objectives and purposes of the zone. 

6. The only other potential planning issue which might arise on the evidence relates to the adequacy of on­site car parking.  Ms Butterworth observed that the City has not undertaken a car parking assessment of the proposed use.  However, Mr Moore gave evidence, which was not questioned or contradicted and which I accept, that there are between 10 and 12 on­site car bays at the front and between 12 and 15 on­site car parking bays at the back in the strata complex, as well as available on­street car parking.  Furthermore, the site is currently used as a martial arts centre. 

7. Given that there is an existing commercial use at the site, there are 22 to 27 car bays within the strata complex, there is on­street car parking, and it is proposed that there would generally be no more than two masseuses working at the site, namely Ms Chan and an employee, the available car parking is likely to be adequate for the proposed use.

8. The City did not advertise the development application for public comment and did not refer the Tribunal to any policy suggesting that there should be public consultation in this case.  Mr Moore gave evidence that the other lot owners in the complex do not oppose the development application and the strata manager 'has put in writing that they have no objections' (T:73; 02.11.17).  In these circumstances, in my view, public consultation in relation to the development application is not warranted.

9. The correct and preferable decision in the circumstances of this case is to grant conditional development approval for the proposed use.

Should the hours of operation be restricted as proposed by the City?

1. In accordance with the Tribunal's usual practice and programming orders, the City filed with the Tribunal and gave to Mr Moore a set of 'without prejudice', draft conditions of approval to be imposed by the Tribunal if it determines that the proposed development merits development approval. Condition 3 proposed restricting the hours of operation of the business to 9.00 am to 8.00 pm seven days a week, which are Mr Moore's and Ms Chan's current operating hours.  Mr Moore did not object to any of the draft conditions. 

2. However, the City subsequently filed and provided to Mr Moore an amended set of 'without prejudice' conditions.  In particular, condition 3 was amended to restrict the hours of operation of the proposed development to 9.00 am to 6.00 pm Monday to Friday (except public holidays), and 9.00 am to 1.00 pm on Saturday and to preclude trading on Sunday and public holidays.  Mr Moore objected to the amended version of condition 3.

3. Mr Dawson explained that the reason for the proposed reduction of hours in the amended draft conditions is that, if the proposed use is (as the Tribunal has found) a complementary business service to other uses in the zone, then it should be restricted to the same trading hours as other uses in the zone.  Similarly, Ms Butterworth expressed the opinion that, if the Tribunal formed the view that the proposed use is a complementary business service, 'then opening hours that are commensurate with those opening hours of that complementary business may be appropriate', although she added that 'I don't know the opening hours of certain businesses in the area' (T:144; 2/11/17).

4. Mr Moore gave evidence that the proposed restricted hours of operation are 'not workable for us' and 'would severely curtail our business and result in our closure'.  He explained that 'our busiest times are after people finish work on weekdays (5 pm onwards) and between 4 pm to 8 pm on weekends'.

5. The City put forward little evidence to support its contention that other businesses in the area are restricted to the hours of operation proposed in amended condition 3 or indeed restricted in terms of hours of operation at all.  As indicated earlier, Ms Butterworth is not aware of the hours of operation of other uses in the area.  Although Mr Dawson initially gave evidence that all businesses in the zone close at 5 pm (T:56; 2/11/17), he later said that he did not know what time the martial arts facilities are normally open until (T:57; 2/11/17).

6. Mr Moore gave evidence that other businesses in the area operate during the evenings, and, in particular, that martial arts premises are 'often [open] Saturdays, Sundays and sometimes late at night' (T:70; 2/11/17).  Mr Moore's evidence in this regard was not questioned or contradicted and I accept it. 

7. Furthermore, although Mr Dawson provided development approvals for four recreation centre uses in the Service Industrial zone as part of his evidence, none of those development approvals restrict the hours of operation of the approved uses to the hours proposed by the City in this case, or at all.

8. The four development approvals were granted in July 2012, April 2015, August 2015 and September 2016 for recreation centre land uses comprising performing arts and dance classes, yoga and floatation pods/tanks, yoga, and a boxing club.  The Council did not impose any condition of development approval on any of these approved uses restricting the hours of operation.  This was notwithstanding that the City's change of use assessment sheet for the performing arts and dance class development noted that 'the majority of classes [were proposed to be] run in the evening, outside typical business trading hours (general 8 am to 5 pm)' and that the development application for the boxing club stated that 'we train 4.30 pm to 8 pm weeknights and most Saturday mornings'.

9. In consequence of Mr Moore's evidence that other businesses in the area operate in the evenings and that martial arts centres in the area operate on Saturdays, Sundays and sometimes late at night, the evidence that the Council has approved recreation centre uses without restricting their hours of operation (even though at least two of them were proposed to operate in the evenings), and the lack of any specific evidence from the City that it has restricted the hours of operation of any other business in the locality, I consider that the approved hours of the proposed development should be as proposed by Mr Moore, namely 9.00 am to 8.00 pm seven days a week, rather than the more restricted hours proposed by the City.

Conclusion

1. For these reasons, in my view, the proposed remedial massage centre use is a development that may be approved in the exercise of planning discretion under cl 3.3(b) of DPS 2 and the correct and preferable decision on the review is to set aside the City's refusal of the development application and to substitute a decision granting development approval subject to conditions.

2. I add that City has been aware since the publication of the Tribunal's decision in Pearce and City of Wanneroo in May 2010 that remedial massage centre is an innominate or unlisted use under DPS 2, but does not appear to have initiated a Scheme amendment to list that use and nominate its permissibility in the various zones.  Consequently, the Council has had to determine under cl 3.3 of DPS 2 in relation to each development application for a remedial massage centre whether that use is consistent with, may be consistent with or is not consistent with the objectives and purposes of the particular zone.

3. Notwithstanding cl 3.3 of the Scheme, it is in the interests of orderly proper strategic and statutory planning for an identified innominate use to be specifically listed in the Zoning Table and for the Scheme to expressly nominate whether the use is prohibited, permitted (but may be conditioned), or may be approved or refused in the exercise of planning discretion in the various zones.  This would provide greater certainty to those who wish to carry out this type of development, the Council and the community.  It would also avoid public and private resources having to be incurred in the complex task of assessment under cl 3.3 of the Scheme as to whether an unlisted use is consistent with, may be consistent with or is not consistent with the objectives and purposes of the particular zone.

Orders

1. The Tribunal makes the following orders:

   1.The application for review is allowed.

   2.The decision of the City of Wanneroo made on 8 May 2017 to refuse to grant development approval for a change of use to unlisted use (massage parlour) at Unit 6 No 4 Arrigo Street, Wangara is set aside and in its place a decision is substituted granting development approval for change of use to unlisted use (remedial massage centre) subject to the following conditions:

   (1)The approval only relates to the proposed change of use to unlisted use (remedial massage centre).

   (2)The use of the approved premises shall be for the purposes of providing remedial massage services only.  A change of use from the approved use will require the approval of the City.

   (3)The hours of operation shall be from 9.00 am to 8.00 pm seven days a week.

   (4)Advertising signage associated with the premises shall be in accordance with the City's Signs Local Planning Policy.  A sign licence is to be applied for and obtained from the City prior to any sign being erected on the premises.

I certify that this and the preceding [105] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE D R PARRY, DEPUTY PRESIDENT

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MOORE and CITY OF WANNEROO [2017] WASAT 145 (S)

MEMBER:   JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD:   15 FEBRUARY 2018

DELIVERED          :   15 FEBRUARY 2018

PUBLISHED           :  8 MARCH 2018

FILE NO/S:   DR 198 of 2017

BETWEEN:   JOHN CHARLES MOORE

Applicant

AND

CITY OF WANNEROO
Respondent

Catchwords:

Practice and procedure - Costs - Planning review proceeding - Development application - Remedial massage centre - Review application successful - Applicant seeking costs of proceeding from respondent - Whether respondent genuinely attempted to make a decision on the merits in relation to development application - Whether respondent acted unreasonably in proceeding - Respondent seeking costs of costs application from applicant - Whether making application for costs of proceeding unreasonable - Whether proceeding involved genuine dispute as to planning merit

Legislation:

City of Wanneroo Town Planning Scheme No 2
Freedom of Information Act 1992 (WA)
Legal Profession (State Administration Tribunal) Determination 2016 (WA)
State Administrative Tribunal Act 2004 (WA), s 31, s 87, s 87(1), s 87(2), s 87(4), s 87(4)(a), s 87(4)(b)

Result:

Applicant's application for costs of proceeding dismissed
Applicant ordered to pay respondent's costs of costs application assessed in the sum of $7,806.70

Summary of Tribunal's decision:

Mr John Moore made an application for the payment by the City of Wanneroo of his costs of planning review proceedings in which he successfully sought review of the City's refusal of a development application.  Mr Moore submitted that the City should be ordered to pay his costs of the proceedings, because the City had failed to genuinely attempt to make a decision on the merits in relation to the development application and had acted unreasonably in the conduct of the proceedings.

The Tribunal determined that the City did genuinely attempt to make a decision on the merits in relation to the development application. The assessment sheet by the officer who made the reviewable decision under delegation provided a comprehensive analysis of the matters that were raised by the development application and indicated that the officer understood that the proposed use is an innominate or unlisted use under the local planning scheme and that the City was required to consider whether the proposed use is, is not, or may be consistent with the objectives and purposes of the zone.  The officer formed the view that the proposed use is not consistent with the objectives and purposes of the zone.  Although the Tribunal ultimately disagreed with the City's decision, it was a matter about which reasonable minds could differ and the decision upon review was made on the basis of the evidence given at the hearing.  The planning analysis of the officer was legitimate and reasonable.  There was also no basis for a submission that the officer did not act objectively.

The Tribunal also determined that the City did not act unreasonably in the conduct of the proceedings, other than arguably in one minor respect which did not extend the hearing in any way.  Although the Tribunal did not accept the City's legal and planning arguments, those arguments were reasonable and arguable. The City sought to minimise the length of the hearing and made reasonable concessions.

The City sought its costs incurred in defending Mr Moore's application for costs. 

The Tribunal observed that this matter involved 'a typical planning review proceeding in which there was a genuine dispute as to planning merit'.  Furthermore, the evidence presented at the hearing was material to the result. 

The Tribunal determined that the making of the costs application in a planning review proceeding concerning a genuine dispute as to planning merit was unreasonable in a generally costs-free jurisdiction.  The Tribunal therefore ordered Mr Moore to pay the City's costs of the costs application assessed in the sum of $7,806.70 within 28 days.

Category:    B

Representation:

Counsel:

Applicant:     Mr T Cockman

Respondent:     Mr M Gregory

Solicitors:

Applicant:     Justice Legal Pty Ltd

Respondent:     Castledine Gregory

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

Aydogan and Town of Cambridge & Anor [2007] WASAT 19; (2007) 48 SR (WA) 239

Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44

Moore and City of Wanneroo [2017] WASAT 145

Pearce and City of Wanneroo [2010] WASAT 77

Pearce and Germain [2007] WASAT 291 (S)

Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. Mr John Moore seeks his costs of a planning review proceeding in which he sought review of the refusal of a development application for a remedial massage centre on land in Wangara zoned 'Special Industrial' under the City of Wanneroo Town Planning Scheme No. 2 (DPS 2 or Scheme).  Mr Moore was successful in the application for review and obtained conditional development approval from the Tribunal.  See Moore and City of Wanneroo [2017] WASAT 145 which I will refer to as my earlier reasons.

Determination of planning review proceeding

1. As I indicated in my earlier reasons, Mr Moore and his wife, Ms Chan, had conducted a remedial massage business from nearby premises in a different zone (the Business zone) under the Scheme for some period of time and applied to the City of Wanneroo (City or Council) for change of use to enable them to move to the proposed site.  The Council refused Mr Moore's development application for the following reason, which I set out in my earlier reasons [8]:

   The proposed Unlisted Use (Massage Parlour) is not consistent with the objectives and purposes of the Service Industrial zone stated in Clause 3.12 of District Planning Scheme No. 2 and therefore, is not permitted in accordance [with] Clause 3.3 of District Planning Scheme No. 2.

2. Although I did not refer to it in my earlier reasons, that decision was made under delegation by a planning officer of the Council.  The evidence before the Tribunal included the assessment sheet setting out the officer's consideration of the matter.  I will refer to that document later in these reasons.  However, I observe that it is a comprehensive analysis of the matters that were raised by the development application.

3. As I said in my earlier reasons [10]:

   The principal issue for determination in this review is whether the proposed remedial massage centre use:

   •(as the City contends), 'is not consistent with the objectives and purposes of the [Service Industrial] zone and is therefore not permitted' (cl 3.3(c) of DPS 2), that is, it is a use which must be refused consent under the scheme and there further at (cf cl 3.2.2 and cl 6.2.4 of DPS 2, "X" Uses'); or

   •(as Mr Moore contends) 'is consistent with the objectives and purposes of the [Service Industrial] zone and is therefore permitted' (cl 3.3(a) of DPS 2), that is, it is a use which may not be refused consent by reason of the unsuitability of the use, but may be conditioned under the Scheme (cf cl 3.2.2 and clause 6.2.1 of DPS 2 "P" Uses), or 'may be consistent with the objectives and purposes of the [Service Industrial] zone' (cl 3.3(b) of DPS 2), in which case it is a use which may be approved or refused in the exercise of planning discretion under the Scheme (cf cl 3.2.2 and cl 6.2.2 "D" Uses).

1. For the reasons set out in my earlier reasons, I came to the view that the proposed remedial massage centre use may be consistent with the objectives and purposes of the Service Industrial zone and is therefore a use which may be approved or refused in the exercise of planning discretion under the Scheme.  The City did not raise any substantive planning issue against development approval being granted.  In the circumstances of the case, I determined that the correct and preferable decision on review was to grant conditional development approval.

2. There was a dispute in relation to one condition of development approval relating to the hours of operation.  I determined that the hours of operation proposed by Mr Moore should be imposed, particularly given the lack of evidence by the City on the question of hours of operation. 

3. During the course of my earlier reasons, I addressed and rejected two submissions put by the City as to why it contended the proposed development is not consistent with the objectives and purposes of the Service Industrial zone. I set out the objectives and purposes of the zone in my earlier reasons [14]. I summarised ([15]­[20] and [35]) and rejected the City's submissions for the reasons set out in my earlier reasons ([22]­[35] and [36]­[71]). However, the arguments put by the City were certainly reasonably arguable.

4. I also rejected most of the submissions made on behalf of Mr Moore ([62]­[63] and [78]­[80]) and, as mentioned at [62]­[63] and [82]­[83] of my earlier reasons, I did not derive any great assistance from the town planning expert called by Mr Moore.

5. However, I determined that the proposed development may be consistent with the objectives and purposes of the Service Industrial zone for the following reasons [71]:

   On the basis of Mr Moore's evidence, and having regard to the nature and purpose of remedial massage discussed earlier, I find that the proposed remedial massage centre use is a business land use providing a service which forms a complement to or completes the land uses of martial arts centres, gyms and dance centres in the zone.  As Mr Dawson said, martial arts centres, gyms and dance centres fall within the land use class 'recreation centre' under DPS 2.  These uses are also 'recreational activities' according to the ordinary meaning of those words for the purposes of cl 3.12.2(a) of DPS 2.  A remedial massage centre use provides a service which forms a complement to or completes uses such as martial arts centres, gyms and dance centres, because participation in those recreational activities may give rise to muscle strains and other musculoskeletal injuries necessitating treatment by remedial massage in order to cure, relieve or heal physical defects.

Application for costs

1. Following the publication of my earlier reasons granting conditional development approval, Mr Moore made an application for costs under s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), in an amount exceeding $60,000.

Applicable legislation and principles

1. Section 87 of the SAT Act states, in part, as follows:

   (1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

   (2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.

   …

   (4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to ­

   (a)whether the party (in bringing or conducting the proceeding before the decision­maker in which the decision under review was made) genuinely attempted to enable and assist the decision­maker to make a decision on its merits;

   (b)whether the party (being the decision­maker) genuinely attempted to make a decision on its merits.

   …

2. The principles in relation to an application for costs in SAT proceedings in general, and in planning review proceedings in particular, are not in dispute and can be shortly stated.

3. It has been recognised in Tribunal decisions and decisions of the Court of Appeal that it is apparent from the terms of s 87(1) of the SAT Act that the starting proposition in the Tribunal is that parties bear their own costs of proceedings. Although s 87(2) confers on the Tribunal a broad and unconfined discretion to make an order for the payment by a party of all or any of the costs of another party, unless otherwise specified in the enabling Act, as the Tribunal observed in Pearce and Germain [2007] WASAT 291 (S) (Pearce) [17], s 87(1) and s 87(2) of the SAT Act together indicate that there is a presumption that there will not be an award of costs in the Tribunal except in special circumstances. As the Tribunal said in Pearce [17], this presumption is desirable because it promotes access to civil and administrative justice through the Tribunal.

4. SAT can therefore be characterised ­ and neither Mr Moore nor the City contest this characterisation ­ as a generally 'no costs' or 'costs­neutral' jurisdiction. 

5. Furthermore, the Tribunal's established practice in relation to the exercise of its broad and unconfined discretion as to costs under s 87(2) of the SAT Act in review proceedings, including planning review proceedings, is that, normally, each party should bear its own costs of the proceedings.

6. As the Tribunal's inaugural President Barker J observed in Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206 [36]:

   … [T]he State Administrative Tribunal has been established by the Parliament of the State with its review jurisdiction as part of the system of public administration of the State to ensure that the citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests.  The starting out position is that, absent other relevant factors, an applicant should be able to obtain review without being obliged to meet the decision-maker's costs if they do not succeed; and similarly, the decision-maker is not ordinarily entitled to recover costs from the applicant in the event the review application is unsuccessful.

7. Section 87(4) of the SAT Act requires the Tribunal, without limiting anything else which may be considered in the making of an order for the payment by a party of the costs of another party in review proceedings, to have regard to, in par (b), whether the party, being the decision­maker, genuinely attempted to make a decision on its merits. Section 87(4)(a) requires the Tribunal to consider in a review proceeding whether the party, in bringing or conducting the proceeding before the decision­maker in which the decision under review was made, genuinely attempted to enable and assist the decision­maker to make a decision on its merits.

8. As will be seen below, the principal argument presented by Mr Moore in his application for costs is that, in his submission, under s 87(4)(b) of the SAT Act, the City did not genuinely attempt to make a decision on its merits.

9. Mr Cockman also submits on behalf of Mr Moore that the City did not genuinely attempt to enable and assist the Tribunal to make a decision on its merits in its conduct of the review proceeding. Mr Cockman submits that that argument is put under s 87(4)(a) of the SAT Act.

10. I note that this submission involves a misunderstanding of s 87(4)(a). That provision is clearly directed to the conduct of an applicant for approval (not the respondent) at the time when the original decision­maker was in the process of considering the applicant's application and making its decision which ultimately becomes the subject of an application for review (not during the review proceeding before SAT). Nevertheless, I take the submissions made by Mr Cockman about the conduct of the City in the proceeding to be an argument that the City acted unreasonably in the conduct of the SAT proceeding. That is a relevant matter for consideration in relation to costs.

11. The cases referred to by the parties indicate that costs orders are only generally made in review proceedings, including, relevantly, planning review proceedings, where a party has acted unreasonably, including where a party has failed to meet the expectation expressed in s 87(4) of the SAT Act.

Consideration of application for costs

1. The principal submission made on behalf of Mr Moore is that the City failed to genuinely attempt to make a decision on its merits in relation to his application, contrary to the expectation in s 87(4)(b) of the SAT Act. This is because, Mr Moore submits, the City has approved remedial massage centres or uses in the Business and Commercial zones of the Scheme on the basis of a legal error that they constitute a 'consulting room' or 'medical centre' and that that is 'in apparent defiance of the legal authority of Pearce', referring to my decision in Pearce and City of Wanneroo [2010] WASAT 77 (Pearce and City of Wanneroo).

2. Mr Moore submits that the City 'then relied on the approval in the Business and Commercial zones to refuse the applicant's proposal in the Service Industrial zone'.  In other words, the applicant submits that the City did not genuinely attempt to make a decision on the merits of his application, on the basis of legal errors that it has made in relation to other applications in other zones. 

3. The applicant obtained documents under Freedom of Information Act 1992 (WA) relating to other applications and approvals of the City. Those documents indicate that in one case, in the year after the decision of Pearce and City of Wanneroo, the City did assess an application for a massage use in the Commercial zone as a 'medical centre' and, in that regard, the City made an error of law.  The other approvals referred to or decisions referred to by Mr Cockman on behalf of Mr Moore that postdate that decision in 2011 do not indicate any error of law on the part of the City in its classification of the proposed use.  It is clear from the other documents that the City well understood, in light of the decision in Pearce and City of Wanneroo, that a massage use is an innominate or unlisted use in the Scheme area.

4. Furthermore, and in any case, even if the City had made an error of law in another decision to deal with another application in another zone, that is entirely and utterly irrelevant to the question of whether it made, or it genuinely attempted to make, a decision on the merits in relation to this application.  

5. The evidence before me in relation to the decision­making in relation to this application, that is, a report authored by Ms Rana Murad, an officer of the City, dated 4 May 2017, indicates that the City well understood that the proposed use is an innominate or unlisted use under its Scheme and that the City was required to consider whether the proposed use is, is not, or may be consistent with the objectives and purposes of the Service Industrial zone.

6. The report refers to information provided by Mr Moore, in part, as a result of a request for further information made by the City to him and then provides an assessment of whether the proposed use is or is not consistent or may be consistent with the objectives and purposes of the zone.  The officer formed the view that the proposal is not consistent with the objectives and purposes of the zone.  In part, she did so, seeking to derive assistance from the use classes expressly referred to in the Zoning Table which are identified as 'not permitted',  that is, 'X' uses in the zone.  The officer considered that the proposed massage centre use is similar to certain uses that are 'X' uses and, on that basis, reasoned, in part, that the proposed use is not consistent or compatible with the Service Industrial zone. 

7. During the proceeding, the City called Ms Amanda Butterworth, an independent consultant town planning expert witness, to give evidence.  Ms Butterworth supported the City's decision and, in part, reasoned in the same way by reference to uses that are prohibited in the zone that the proposed use is in some way similar to those uses, and that that sheds light on the question of whether the proposed use is, is not, or may be consistent with the purposes and objectives of the zone.  As I observed in the course of my earlier reasons [76], referring to the decision of Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44 [96]:

   … [G]uidance can be obtained as to the objectives and purposes of the zone from the land uses which are permitted and not permitted. …

8. The analysis by the officer, and by the City's witness in the proceeding, which sought to obtain guidance as to the objectives and purposes of the zone from the land uses which are permitted and not permitted, including uses that are permitted and not permitted in other zones, was perfectly legitimate and reasonable for an expert town planner.  It does not demonstrate, in my view, that the City did not genuinely attempt to make a decision on the merits of the application.

9. Mr Moore also submits that the City did not genuinely attempt to make a decision on the merits of the application essentially because the officer, or officers of the City, somehow understood that the City was opposed to this type of development in the subject zone, and therefore the staff of the City did not act objectively.  It was suggested, on behalf of Mr Moore, that there has been a pattern of such activity or behaviour on the part of the City.  There is simply no basis for such a conspiratorial submission.

10. The report in relation to this application by Ms Murad indicates that she turned her mind to the merits of the application and came to a certain view.  Although I disagreed, ultimately, with that view, and with the opinion expressed by Ms Butterworth, the City's expert witness, it was a matter about which reasonable minds can differ, and my decision, importantly, was based on the evidence presented at the hearing.  As I said earlier, I referred particularly at [71] of my earlier reasons to the evidence of Mr Moore.  That was evidence given at the hearing, and obviously not information prior to the hearing. 

11. The second basis of the application for costs, as I said earlier, is premised in form on a misunderstanding of s 87(4)(a) of the SAT Act. However, I take that argument to be, in effect, that the City acted unreasonably in the conduct of the litigation, which is an argument certainly open in relation to an application for costs. However, I do not consider that the City acted unreasonably in the conduct of the proceeding.

12. To the contrary, I consider that the City sought to minimise the length of the hearing, and made reasonable concessions during the course of the hearing.  In particular, as I noted in my earlier reasons ([88]), as a result of discussions with counsel for the City, the City withdrew a submission that the proposed development is not consistent with orderly and proper planning in terms of consistency of decision­making, given that the earlier decisions referred to involved an assessment that the proposed use, or a use similar to the proposed use, was not consistent with the objectives and purposes of the zone.

13. Furthermore, although Ms Butterworth raised a potential concern about car parking, or the adequacy of car parking for the use, no submission was directed in relation to that matter, reflecting a reasonable approach to the conduct of the litigation on behalf of the City. 

14. The applicant submitted that, in the same way as the City failed, he contended, to genuinely attempt to make a decision on the merits, because of the reference to other land uses that are expressly not permitted in the zone, so too the City acted unreasonably, or did not genuinely attempt to assist the Tribunal to come to the correct and preferable decision, by referring to such other uses.

15. In particular, the applicant refers to Ms Butterworth's opinion that the use is akin to a personal service, and that other uses which are prohibited in the zone indicate that personal services are not consistent with the objectives and purposes of the zone.  As I have said, that was a perfectly legitimate planning analysis.  Although ultimately I did not accept it, it was reasonable and arguable. 

16. The applicant also submits that there was a failure by the City, both at the stage of the reviewable decision and in the proceeding, to properly consider whether the proposed use was a 'complementary business service'.

17. As far as the City's decision is concerned, it is clear from the report of Ms Murad that she did consider whether the proposed use is a 'complementary business service'.  It is true that she did not consider expressly whether it is a complementary business service to recreational uses in the zone, as I found it to be.  However, my assessment was based on the evidence presented at the hearing, which included the evidence of Mr Moore.

18. The general topic of whether the proposed use is a complementary business service to other uses was considered, and the officer considered that it was not.  In my view, that was a reasonable position to take on the material before the Council at the time it made its decision. 

19. The applicant also submits that there were examples of other unreasonable conduct in the proceeding.  First, that the Council did not reconsider its decision in circumstances where there was discussion at a directions hearing about the Pearce and City of Wanneroo decision and whether it was on all fours with this matter.

20. There was no order made in this proceeding under s 31 of the SAT Act inviting the Council to reconsider its decision. There was, therefore, no unreasonable conduct in failing to reconsider the decision. Furthermore, it appears that in comments made by Senior Member Spillane at a directions hearing, in which the senior member said words to the effect that the City should consider whether its position is consistent with earlier decisions of the Tribunal, that the senior member was not fully informed of the circumstances of the ultimate decision in Pearce and City of Wanneroo.

21. It seems from an extract from the transcript before me that the senior member was under the impression that the development application in Pearce and City of Wanneroo was ultimately approved, whereas the Council did not approve that application.  My decision in Pearce and City of Wanneroo was that that development application was capable of approval as an innominate use; not that it should be approved in the exercise of planning discretion.  The City refused that application, and there was no application for review in relation to it.  Therefore, it appears to me that the observations made by the senior member were not fully informed in relation to the circumstances.  

22. The applicant submits that there was unreasonable conduct in one minor respect, and that is arguable.  That relates to an argument about trading hours.  The City originally proposed without prejudice conditions that followed the current trading hours of Mr Moore.  The City then withdrew that condition and proposed more restricted hours.  I came to the view that the condition proposed by Mr Moore reflecting his current trading hours should be imposed.  In the course of that assessment, I observed that the City indicated why it proposed the more restricted hours, namely, that, as Mr Dawson, an officer, explained in evidence, if the proposed use is (as the Tribunal indeed found) a complementary business service to other uses in the zone, then it should be restricted to the same trading hours as the other uses in the zone.

23. However, as I said in my earlier reasons [97]: 

    The City put forward little evidence to support its contention that other businesses in the area are restricted to the hours of operation proposed in amended condition 3 or indeed restricted in terms of hours of operation or other uses in the area. …

    (Emphasis added)

1. Perhaps I was being a little generous to the City; there was no evidence put forward by the City in support of that contention.  The maintenance of its condition 3 at the end of the hearing may be regarded as somewhat unreasonable.  However, the hearing was not extended in any way as a result of the pressing of that condition by the City, ultimately without any real evidence to support it.

2. With the exception of that minor issue in the proceeding, in my view, the City acted reasonably in the conduct of the proceeding. 

3. This matter involved a typical planning review proceeding in which there was a genuine dispute as to planning merit.  Furthermore, the evidence presented at the hearing was material to the outcome.  It was not a case, contrary to a submission put in passing in the written submissions for Mr Moore, where the result was a forgone conclusion.

4. The City's defence of its decision was reasonable, and the arguments that it presented were reasonably arguable, notwithstanding that they were ultimately not accepted by the Tribunal.  Such determinations occur routinely in planning review proceedings in this Tribunal. 

5. There was also, I should add, criticism by Mr Moore as to the City's decision to obtain independent planning advice and evidence at a time which Mr Moore considers to be late in the process.

6. The City instructed Ms Butterworth once the matter was listed for hearing in the Tribunal.  There was nothing unusual or unreasonable in that, although in this case the decision was made under delegation to refuse the application by a Council officer, and therefore there was no conflict between the professional staff's view and the decision of the City.  So it was perfectly reasonable for the City to seek an independent planner.  And indeed, the fact that an independent planner supported the Council decision adds to the view that the Council's participation in the proceeding was reasonable. 

7. For these reasons, in my view, the City did genuinely attempt to make a decision on the merits of the application, and did not act unreasonably in the conduct of this proceeding. 

8. I certainly understand that Mr Moore is unhappy that he had to take the matter to the Tribunal for review of the City's decision.  However, he did so in the understanding that this is a costs­neutral jurisdiction in which, generally, each party pays its own costs, and mere success in the proceeding is not sufficient for an order for costs to be made. 

9. I am satisfied that the City participated in the proceeding in a reasonable way.  I am also satisfied that it genuinely attempted to make a decision on the merits of the application.  For these reasons, I reject the application for costs.

Respondent's application for costs of costs application

1. The City seeks its costs of the application for costs.  It does so on the basis that the proceeding involved a typical planning review matter and that there was a genuine contest of planning considerations and legal arguments.  It submits that this case was a case involving a genuine dispute as to planning merit of the nature discussed in the Tribunal's decision in Aydogan and Town of Cambridge & Anor [2007] WASAT 19; (2007) 48 SR (WA) 239. In that decision, Member Connor and I said the following [47]­[48]:

   As noted earlier, both the starting proposition in the Tribunal, under s 87(1) of the SAT Act and the established practice of the Tribunal in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act is that, normally, each party in review proceedings should bear its own costs. The Tribunal, in its review jurisdiction, is a generally costs­free forum.

   The making of a costs application in relation to review proceedings which concern a genuine dispute as to planning merit normally involves unreasonable conduct warranting an order that the applicants for costs compensate the other party or parties for having had to defend the application.  The applicants were advised of the Tribunal's practice in relation to costs, but nevertheless persisted with their application, thereby putting the Council to expense in defending it.  The applicants' conduct in making and pursuing the costs application was unreasonable in a generally costs-free jurisdiction.

2. In this case, the City did not expressly put Mr Moore on notice about the Tribunal's practice.  However, the extensive written submissions presented on his behalf clearly demonstrate an understanding and awareness by his solicitor of the Tribunal's practice, and of the nature of planning review proceedings.  In my view, this was a case of a genuine dispute as to planning merit and the making of a costs application in a case of a genuine dispute as to planning merit was unreasonable.

3. In my view, under s 87(2) of the SAT Act, it is appropriate in the exercise of the Tribunal's discretion to compensate the City for its costs of having had to defend what is an unreasonable application for costs in a generally costs­free jurisdiction. Furthermore, in this case the City was put to considerable expense because of the Freedom of Information Act application and the documents produced as a result of it, which had to be assessed.

4. The Council seeks costs, and has provided a schedule of the costs that it seeks, generally relating to legal fees of Mr Gregory, who is a senior practitioner, and also including a restricted practitioner.  The costs, inclusive of GST, that are sought are in the amount of $7,806.70.  The hourly rates sought, and apparently charged to the City, are in accordance with the Legal Profession (State Administrative Tribunal) Determination 2016 (WA), under which, in the absence of an agreement as to costs, the maximum amount that may be charged, for a senior practitioner, is an hourly rate of $407 including GST and, for a restricted practitioner, an hourly rate of $231 including GST. Those hourly rates are reasonable in the circumstances of Mr Moore's costs application.

5. The matters on account of which costs are sought, that is to say the services provided to the City, are set out in detail in attachment 6 to the City's submissions.  I have read those matters and they are all, in my view, reasonable steps to have taken in responding to the applicant's submissions in relation to costs, and in preparing and presenting the respondent's submissions in relation to costs.  The schedule includes only one hour for hearing of the costs application.  

6. In all the circumstances, the amount sought by the City for its costs of the costs application, in my view, is reasonable. 

Orders

1. For these reasons I make the following orders:

   1.The application by the applicant for costs of the proceeding to be paid by the respondent is dismissed.

   2.The applicant is to pay the respondent's costs of the costs application assessed in the sum of $7,806.70 within 28 days.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE D R PARRY, DEPUTY PRESIDENT