Neumann and City of Swan
[2007] WASAT 30
•6 FEBRUARY 2007
NEUMANN and CITY OF SWAN [2007] WASAT 30
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 30 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:396/2005 | 15 FEBRUARY 2006, 11 APRIL 2006, 1 AUGUST 2006, 24 OCTOBER 2006 | |
| Coram: | MR P McNAB (MEMBER) | 5/02/07 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed with no order as to costs | ||
| B | |||
| PDF Version |
| Parties: | SUSANNE BARBARA NEUMANN CITY OF SWAN |
Catchwords: | Town planning Rural area Parking and garaging of commercial vehicles regulated by Town Planning Scheme Transport depot in rural area Amenity, safety and traffic concerns Whether parking alone sufficient to meet Scheme definition Split zoning between rural and rural residential Anomaly of zoning to be rectified Characterisation of use where one part of land used for access and another part used for parking Concept of a single planning unit Whether permissible to grant approval where parking prohibited under scheme Legal impossibility of granting approval in such circumstances Land use conflicts also considered Application of unreported Supreme Court decision Decision directly on point Failure of respondent to inform Tribunal of Court decision within its corporate knowledge Costs Each party to bear their own costs Whether failure of respondent sufficient to justify departure from normal costs rule in review proceedings Application for review dismissed with no order as to costs Words and phrases: "transport depot" "single planning unit" |
Legislation: | City of Swan Town Planning Scheme No 9, cl 2.3.8, cl 2.3.8.3(c) City of Swan Proposed Town Planning Scheme No 17 Gidgegannup Rural Strategy 2004 Metropolitan Regional Scheme State Administrative Tribunal Act 2004 (WA), s 30, s 87(1), s 87(3) |
Case References: | Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 Commisso v City of Gosnells (2006) 44 SR (WA) 114 Godfrey v Wollondilly Shire Council [2007] NSWLEC 33 Hay v State of New South Wales (Police) [2006] NSWADT 13 Kerkvliet v Shire of Swan (Unreported, WASC, Parker J, 21 November 1997, [BC9706268]) La Rosa v City of Wanneroo [2006] WASC 304 Langdon v Macedon Ranges SC [2005] VCAT 1955 Macarthur Wind Farm Pty Ltd v Moyne Shire Council & Gardner (2006) VPR 48 Morea Architects and Town of Vincent [2006] WASAT 263 North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd [1989] 16 NSWLR 50 (CA) Ransberg Pty Ltd v Shire of Serpentine Jarrahdale [2004] WATPAT 94 Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219 (CA) Riseborough v Western Australian Planning Commission [2003] WATPAT 141 Riseborough v Western Australian Planning Commission [2004] WATPAT 6 Shark Bay Tuna Farms Pty Ltd and Department of Fisheries [2005] WASAT 206 Town of Claremont v Complete Furniture Restoration Pty Ltd [2005] WASC 113 Trecap Pty Ltd and City of Swan [2006] WASAT 142 |
Orders | On the application determined by Member Peter McNab on 6 February 2007, it is ordered that:,1. The application for review is dismissed.,2. The decision under review is affirmed.,3. There is no order as to costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : NEUMANN and CITY OF SWAN [2007] WASAT 30 MEMBER : MR P McNAB (MEMBER) HEARD : 15 FEBRUARY 2006, 11 APRIL 2006, 1 AUGUST 2006, 24 OCTOBER 2006 DELIVERED : 6 FEBRUARY 2007 FILE NO/S : DR 396 of 2005 BETWEEN : SUSANNE BARBARA NEUMANN
- Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning - Rural area - Parking and garaging of commercial vehicles regulated by Town Planning Scheme - Transport depot in rural area - Amenity, safety and traffic concerns - Whether parking alone sufficient to meet Scheme definition - Split zoning between rural and rural residential - Anomaly of zoning to be rectified - Characterisation of use where one part of land used for access and another part used for parking - Concept of a single planning unit - Whether permissible to grant approval where parking prohibited under scheme - Legal impossibility of granting approval in such circumstances - Land use conflicts also considered - Application of unreported Supreme Court decision - Decision directly on point - Failure of respondent to inform Tribunal of Court decision within its corporate knowledge - Costs - Each party to bear their own costs -
(Page 2)
Whether failure of respondent sufficient to justify departure from normal costs rule in review proceedings - Application for review dismissed with no order as to costs - Words and phrases: "transport depot" - "single planning unit"
Legislation:
City of Swan Town Planning Scheme No 9, cl 2.3.8, cl 2.3.8.3(c)
City of Swan Proposed Town Planning Scheme No 17
Gidgegannup Rural Strategy 2004
Metropolitan Regional Scheme
State Administrative Tribunal Act 2004 (WA), s 30, s 87(1), s 87(3)
Result:
Application for review dismissed with no order as to costs
Category: B
Representation:
Counsel:
Applicant : Mr M Turnbull (Acting as Agent)
Respondent : Mr S Tan and Ms C Catherwood (Acting as Agents)
Solicitors:
Applicant : Greg Rowe & Associates (Planning Consultants)
Respondent : City of Swan
Case(s) referred to in decision(s):
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53
Commisso v City of Gosnells (2006) 44 SR (WA) 114
Godfrey v Wollondilly Shire Council [2007] NSWLEC 33
Hay v State of New South Wales (Police) [2006] NSWADT 13
Kerkvliet v Shire of Swan (Unreported, WASC, Parker J, 21 November 1997, [BC9706268])
La Rosa v City of Wanneroo [2006] WASC 304
(Page 3)
Langdon v Macedon Ranges SC [2005] VCAT 1955
Macarthur Wind Farm Pty Ltd v Moyne Shire Council & Gardner (2006) VPR 48
Morea Architects and Town of Vincent [2006] WASAT 263
North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd [1989] 16 NSWLR 50 (CA)
Ransberg Pty Ltd v Shire of Serpentine Jarrahdale [2004] WATPAT 94
Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219 (CA)
Riseborough v Western Australian Planning Commission [2003] WATPAT 141
Riseborough v Western Australian Planning Commission [2004] WATPAT 6
Shark Bay Tuna Farms Pty Ltd and Department of Fisheries [2005] WASAT 206
Town of Claremont v Complete Furniture Restoration Pty Ltd [2005] WASC 113
Trecap Pty Ltd and City of Swan [2006] WASAT 142
(Page 4)
Summary of Tribunal's decision
1 This review concerns the commercial parking of a truck and associated trailers in a rural residential area near Gidgegannup in the City of Swan. The relevant land, owned by the applicant (Ms Neumann), was bisected by two different town planning zonings. Thus, different legal rules concerning the use of the land applied to either part or side of the applicant's block of land.
2 The City had refused the application in March 2005 and the matter had had a long history in the Tribunal. Some of the delay in having the matter determined was attributable to the conduct of the applicant, and on one occasion costs had been awarded by the Tribunal against the applicant.
3 The review in the Tribunal initially proceeded on arguments mainly concerning matters such as rural amenity, traffic, safety and access issues.
4 However, the review was resolved on quite different issues. The Tribunal was faced with a directly applicable Supreme Court case from some years ago which dealt with the proper interpretation of the City of Swan's Town Planning Scheme's definition of a "transport depot", a crucial matter in the case.
5 Unfortunately, the City had "corporate knowledge" about that case but did not bring it to the Tribunal's attention. The Tribunal discovered the case in its own research and concluded that the effect of it was to make it legally impossible to permit parking on any part of the land.
6 The Tribunal found that there was a "single planning unit" applicable to the whole of the land. The applicant was proposing a transport depot (according to the definition in the Scheme), and the Scheme absolutely prohibited such a use on at least one half of the land. In such circumstances the Tribunal could not approve the application.
7 In any event, the Tribunal indicated that even if there was power to approve the application it would lead to an undesirable land use conflict on the current zonings.
8 Thus, the application for review had to be dismissed and the decision under review affirmed (but principally on quite different grounds from those expressed by the City).
(Page 5)
9 The Tribunal considered a costs application against the City. Notwithstanding that the Tribunal was critical of the City it did not make an award of costs against the City having regard to all of the circumstances of the case, including the conduct of the applicant.
Introduction
10 This review concerns the refusal by the City of Swan (respondent or City) for planning approval for the parking of a commercial vehicle and associated trailers on a property in Gidgegannup in the City of Swan.
11 The City refused permission under the City of SwanTown Planning Scheme No 9 (TPS 9) on 2 March 2005.
12 The refusal was expressed to relate to amenity and safety issues.
History of the application
13 This review has had a long and probably unfortunate history. It is a history that is capped off now by the revelation that, as a matter of law, approval could never have been given by the respondent to the current development approval. The reasons for that, as it turns out, were within the corporate knowledge of the respondent, in the circumstances discussed below.
14 The applicant first sought planning approval in October 2004. The matter was commenced in the Tribunal on 31 March 2005 and after lengthy attempts at mediation, negotiation and settlement; numerous directions hearings and the resolution of interlocutory and other disputes between the parties (and the production and filing on the part of the applicant of sometimes superfluous, repetitious or irrelevant material in this process), the substantive matter, or as will appear below what turned out to be only the first stage of the review, was eventually heard on 15 February 2006 and then on 11 April 2006.
15 On the continuation of the hearing (that is, in April 2006) the applicant was represented by Mr Turnbull of Messrs Greg Rowe and Associates, planners, following an adjournment sought at the previous sitting by the applicant's then representative. The adjournment was essentially because the applicant had failed to adequately prepare for the hearing, despite repeated detailed advice received from Tribunal Members at the many directions hearings held concerning this matter.
(Page 6)
16 However, that adjournment was granted only after the evidence of certain third parties (objecting neighbours) was dealt with, so as to avoid inconvenience to these parties.
17 Costs of the adjournment were ordered to be paid by the applicant in the sum (arrived at by consent) of $250.
18 The final submissions in this matter on the substantive issues (that is, the first stage of the matter) were received in late April and early May of 2006.
19 At this point it is convenient to make some comment concerning the conduct of the initial representative of the applicant. The attempts to represent the applicant by the Gidgegannup Ratepayer's [sic] Economic and Business Enterprise Group Inc (GREBE) and its secretary, Mr Ross Carson (also, a supporting neighbour of the applicant), while laudable as they were nevertheless, it must be frankly acknowledged, caused considerable delay in the proceedings - if not occasional frustration to the other parties. The costs order referred to above reflects such matters.
20 Both GREBE and the applicant, it must also be said, from time to time have raised matters outside of the review function of the Tribunal. It is unnecessary to go into the details, or to apportion or ascribe blame about such matters. They are not matters that, in any event, the Tribunal should resolve between the parties.
21 The Tribunal pauses to observe that the situation in part resembles that found by the NSW Tribunal in a recent case when it observed:
"While the material [the applicant] has filed thus far does suffer from many of the shortcomings about which the Respondent complains it is apparent that this is not so much a case of a flagrant disregard for the Tribunal’s directions but one of a complainant who has genuine difficulties understanding what is required."
- (Hay v State of New South Wales (Police) [2006] NSWADT 13 at [18], cited with approval in this Tribunal in Commisso v City of Gosnells (2006) 44 SR (WA) 114 at [122].)
22 It only remains to acknowledge the later assistance of Mr Turnbull in focussing the proceedings on the relevant facts and planning issues.
(Page 7)
23 However, as will appear in more detail below, after final submissions were received the Tribunal identified a clear problem raised by Kerkvliet v Shire of Swan (Unreported, WASC, Parker J, 21 November 1997, [BC9706268]). It will be noticed that notwithstanding that the respondent in that case is the respondent in this review, and the case raises a material (and, as it turns out, a critical issue) it was not, unfortunately, at any stage brought to the attention of the Tribunal by the respondent.
24 The effect of this Supreme Court decision necessitated further hearings, submissions and a consequential costs application, brought this time by the applicant. The very final submission lodged in this matter was received on 7 November 2006, over one and half years after the original decision was made.
25 Against this background, the Tribunal turns to the substance of the review.
The application and the subject land
26 The subject land is Lot 518, Gidgegannup, comprising 2 hectares, in a cul de sac off Crest Side Close (reached via Stanley Road off the Toodyay Road). The land is trapezium shaped and bisected by different zonings: to the east it is zoned "General Rural"; to the west it is zoned "Rural Residential". The southern half – approximately - is bush land; the northern half will eventually comprise a dwelling and shed. A firebreak borders the northern and eastern boundary of the land.
27 As will appear below, the bisected zoning has become a critical matter in the review.
28 The applicant seeks retrospective approval for the parking of certain commercial vehicles on the general rural (eastern) portion of the land, with related access from the west, and otherwise within the building envelope for that eastern portion. The vehicles specified are:
1. a Ford prime mover (an articulated vehicle) of some 62 feet (19 metres);
2. a 40 feet (12 metre) "foot drop deck trailer"; and
3. a 20 feet (6 metre) "A"-type trailer.
29 The vehicles would not be housed or garaged in any building or other structure.
(Page 8)
30 The associated business venture carried on by the applicant and her partner comprises approximately 26 trips per annum carrying caravans, trailers, machinery and general freight and is operated by a single owner/driver contractor. Previously, the proposal seemed to be 10-15 trips per month on average, mainly during daylight hours but with some trips occasionally leaving at midnight.
31 The main access road from nearby Toodyay Road (Stanley Road) seems to be a standard narrow rural kerbed road located on a "T" intersection with, consequently, a 90 degree turn, and a steep uphill section after leaving the Toodyay Road. A number of other 90 degree turns are also to be negotiated along the roads to the subject land. The consequential questions of access, safety, impact on road use, and impact on amenity all became peripheral issues in the review.
32 The parking and operation of vehicles on the subject land has apparently occurred for several years.
The planning framework
33 The planning framework regulating the decision to be made is as follows.
34 The subject land is classified as rural under the Metropolitan Regional Scheme. As we have seen, part of the land is zoned "Rural Residential" under TPS 9. The other part, comprising the related parking area, is zoned "General Rural" under TPS 9. The respondent submits that:
"The 'split' in the zoning is considered to be an anomaly by past planning [sic] and the intent of the City is to rectify this under the proposed Town Planning Scheme No. 17."
35 The Gidgegannup Rural Strategy 2004 explains the background to that position, and it is proposed that Lot 518 (the subject land) will become "Rural Residential".
36 At the first stage of the matter, no party submitted that the proposed City of Swan Town Planning Scheme No 17 (TPS 17) was otherwise materially relevant to this review. It appears that TPS 17 might come into force later in 2007. Because of the conclusions reached below it is unnecessary for the Tribunal to go on to consider whether TPS 17 is a seriously entertained planning proposal and, if so, the effect that it might have on the applicant's proposal.
(Page 9)
37 The applicant submits that planning approval must be sought and obtained for the parking of the vehicles, but that TPS 9 does not specifically deal with such approvals as a specific use class or otherwise.
38 The City's officers initially, it seems, approached the matter on the basis that the proposed use could be arguably that of a "Transport Depot". However, their ultimate position appeared to be that as the garaging element of the relevant definition appeared to be absent, the definition's criteria was not met (see further below). Alternatively, the City approached the matter of use as a "Use Not Classified" (namely the "Parking of Commercial Vehicles"). Both such use classifications require, in any event, the City's approval at some point.
39 Thus, in respect of both of the parties' respective cases, planning approval would be required for the parking of the vehicles.
40 As already mentioned, the Tribunal will consider below the question of whether the proposed use is that of a "Transport Depot" and the consequences of such a classification.
41 The City does not have in place any relevant policies guiding the exercise of its discretion.
42 The rural residential part of the approval, if it applies, requires advertising and assessment against the preservation of amenity and existing land uses (cf cl 2.3.8). The specified criteria also requires consideration of the "nature of the roads giving access" to the land the subject of approval (cl 2.3.8.3.c).
43 No other State or local planning instrument was referred to by either party that might have assisted the decision-making process. However, several relevant cases in this and the former Tribunal dealing with rural amenity have been identified by the parties as possibly relevant. If necessary, these authorities will be considered below.
The applicant's argument
44 Essentially, the applicant argues that planning approval ought to be granted for the following reasons:
1. The parking and associated transport of the vehicle would not be inconsistent with the intent of activities regulated in the relevant zones.
(Page 10)
- 2. While there may be some noise in relation to the use of the immediate roads network, the infrequency and low speed of such operations would significantly minimise any adverse amenity impact (if any).
3. The vehicles will be parked in an area that is (or will be) appropriately landscaped and screened.
4. The vehicle's turning into Toodyay Road would satisfactorily comply with relevant traffic laws, and accordingly road safety concerns were either not adequately demonstrated by the City or, in effect, exaggerated.
The City's case in reply
45 The City's primary argument on safety is a technical one that suggests that their engineer's views ought to be preferred over those of Mr Turnbull's, given their respective expertise. The City sought to demonstrate that the turning templates of the relevant rural roads in the area could not be satisfactorily negotiated by a 19 metre articulated vehicle. They also dispute Mr Turnbull's interpretation of the relevant road traffic rules. These are matters that the Tribunal will return to below.
46 On amenity, the City points to land use conflicts with predominantly single dwellings and rural pursuits in the locality. It is said that the proposal would be the creation, in effect, of a depot that would industrialise the land, which would be inconsistent with rural residential land use.
The neighbours' concerns
47 The Tribunal has had regard to the various objectors' correspondence, the summary of submissions prepared by the Council officers (appearing in the s 24 bundle of the respondent's documents, and received into evidence) and to the neighbours' oral and written evidence to this Tribunal.
48 A number of the neighbours did not in fact object. Of those that did, their concerns may be generally summarised as relating to the following matters:
1. The extent to which it was desirable that a transport depot and associated storage and maintenance on site should be permitted in that rural area.
(Page 11)
- 2. As Stanley Road had been built to a rural standard, it was therefore unsuitable for large trucks.
3. Concern about the storage of fuel etcetera on the site in the event of a bush fire.
4. The alleged misuse of fire breaks by the applicant in respect of parking and access.
5. The safety of pedestrians and other users of the bush area.
6. The disturbance to a "peaceful" rural residential area.
7. The length and manoeuvrability of the vehicle on the access roads.
8. That truck movements had been observed early in the morning and late in the afternoon.
Applicant's response to the neighbours' concerns
49 The applicant's response to these specific concerns may be summarised as follows:
1. The relevant roads are already used by fully-laden trucks, including use by operations such as nurseries.
2. Likewise, other trucks use nearby roads for quarrying purposes (Reserve Road was cited).
3. Previously, a nearby commercial water truck has been tolerated in the area.
4. Likewise, a local contractor's weekly rubbish trucks operate in the area.
5. No dangerous chemicals are stored on the site.
6. Some of the storage material (a trailer and some fuel) relates to a hobby pursuit of the applicant's partner, namely sprint car racing.
7. The prime mover has only low fuel reserves at the points of entry and departure (200 litres compared to 2000 litres when full).
8. Bushfire planning includes a mobile water tanker permanently on site.
9. The prime mover is loaded elsewhere and is "temporarily parked" on the site.
(Page 12)
- 10. The applicant denies ever having exceeded 19 metres in length and says that this is, in any event, probably lawful.
11. The parking is to take place on a previously cleared site.
12. No washing or maintenance of the heavy vehicles takes place on site.
13. Trees have been planted for screening purposes.
14. There is no delivery of items for transport to the site.
15. There are no relevant commercial activities between 12 midnight and 6 am.
50 The resolution of these amenity and regulatory issues (and those also raised by the City in opposition) and the relevance and applicability of the draft proposed conditions filed in the matter is unnecessary because of the developments discussed below.
Traffic issues
51 The Austroads 19 metre prime mover and 5 metre motor vehicle dual carriageway turning template ("desirable minimum radius" at five to 15 metres), a document produced to the Tribunal by the applicant, appears to show - and far from supporting the applicant - that at a 90 degrees turn, an increase is required at the turning point from approximately 6 metres to that of 15 metres. The reasonable inference to be drawn is that significant overhang would occur at the turn from a 6 metre road (Stanley Road) into the Toodyay Road. No doubt, however, this turn could be safely executed by an experienced and careful driver.
52 In the event, it will also be unnecessary to resolve this complex regulatory issue because of the developments discussed immediately below.
Is the land being used for a Transport Depot?
53 The first and, as it turns out, critical question before the Tribunal is: what is the proper use classification for the proposed development? In particular, is it a "Transport Depot"? The term "Transport Depot" is defined in Sch 1 of TPS 9 to mean:
"... any land or buildings used for the garaging of road motor vehicles used or intended to be used for carrying goods or persons for hire or reward or for any consideration, or for the transfer of goods or persons from one such motor vehicle to
(Page 13)
- another of such motor vehicles, and including the maintenance and repair of such vehicles, but not other vehicles."
54 In Ransberg Pty Ltd v Shire of Serpentine-Jarrahdale [2004] WATPAT 94 the President of the former Tribunal considered "a development application for the creation of a hardstand area for the parking of trailers". The President said, at [4]:
"There is no doubt that the proposed development is consistent with [a] transport depot, a use class defined in TPS2. It is an 'SA' use, that is, council may, at its discretion, permit, after notification is given in respect to the development."
55 The relevant definition then, as now, in that Shire's Town Planning Scheme provided that (emphasis added):
"Transport Depot - means land or buildings designed or used for one or more of the following purposes:
(a) The parking or garaging of more than one commercial vehicle used or intended for use for the carriage of goods (including livestock) or persons.
(b) The transfer of goods (including livestock) or passengers from one vehicle to another vehicle.
(c) The maintenance, repair or refuelling of vehicles referred to in (a) or (b) above.
The above uses (a) to (c) inclusive, singularly or collectively may, with Councils [sic] planning consent, include as an incidental use overnight accommodation of patrons of the facilities."
56 According to the Macquarie Dictionary ( 6 February 2007), a "depot" means "a place where buses, trams, etc, are kept when they are not in service."
57 In Kerkvliet v Shire of Swan (Unreported, WASC, Parker J, 21 November 1997, [BC9706268]) the Supreme Court dealt with an appeal from a Magistrate's finding in relation to an unlawful transport depot operating in the City of Swan. Directly on point in relation to this review, Parker J said ([BC9706268] at [10], emphasis added):
(Page 14)
- "I am conscious that the definition of transport depot refers to the garaging of road motor vehicles. That notion would usually suggest the vehicle being kept in a building when not in use. Here, however, the definition of 'transport depot' in the first schedule [to TPS 9], expressly refers to 'any land or buildings used for the garaging of road motor vehicles'. It appears from this definition that for the purposes of the Shire's Scheme the notion of garaging includes the parking of a vehicle on land when it is not in use."
58 Cf La Rosa v City of Wanneroo [2006] WASC 304 where Johnston J said, at [13]: "In my view, the parking of more than one commercial vehicle on land meets the definition of a transport depot, a prohibited use in Special Rural Zones." The relevant Town Planning Scheme there dealt with "the parking or garaging of more than one commercial vehicle". See also, Trecap Pty Ltd and City of Swan [2006] WASAT 142 dealing with a transport depot in the City of Swan, considered there for rating purposes.
59 Applying Kerkvliet, as the Tribunal is bound to do, the Tribunal is satisfied that applicant's proposed use, on the facts established as either not contested or as common ground in the matter, is that of a "Transport Depot" within the meaning of TPS 9.
60 Thus, according to TPS 9 such a use is absolutely prohibited in the rural residential zone (that is, the notional access part to the west of the applicant's proposal) and in any event requires "special permission" in relation to the general rural zone part of the land (the notional parking area).
61 However, there can be no real doubt that as a matter of fact the applicant intends to develop and use the land for one coherent or aggregated purpose and operation (that is, a transport depot). That is also what she is currently doing.
62 Moreover, the respondent both below and in the Tribunal has similarly approached the original application and the subsequent review. Unless the proposed use and development of the land may be severed, segregated or abstracted in some way, approval by either the respondent or, on review, this Tribunal would not seem possible, as a matter of law, in respect to the current development application. This is so for the following reasons.
(Page 15)
63 It is clear that the "interrelationship of aspects" of a proposed land use can "dictate" their characterisation: see, for example, Godfrey v Wollondilly Shire Council [2007] NSWLEC 33 (Jagot J) at [34]. Moreover, in a case discussed in Godfrey, namely North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd [1989] 16 NSWLR 50 (CA), Kirby P wrote, at [59]:
"In determining that genus [that is, the characterisation of use class], attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided."
64 That passage was also cited and followed by E M Heenan J in Town of Claremont v Complete Furniture Restoration Pty Ltd [2005] WASC 113, at [52].
65 It is not legally possible for this Tribunal to give approval to a development application which incorporates a purpose or end manifested in an integrated proposed land use, a "single planning unit" to use the words of Johnson J in La Rosa v City of Wanneroo [2006] WASC 304 at [91] (which the Tribunal has found is the case, and was the premise of the application), and which is prohibited by a law.
66 Essentially, this Tribunal lacks jurisdiction to do what the applicant asks it to do.
67 Even if it were somehow possible to now give approval (say, by some form of severance or partial approval, which is doubtful), it would seem to run counter to a fundamental aspect of town planning law, namely the creation of incompatible and conflicting land uses. The Victorian Tribunal, in Macarthur Wind Farm Pty Ltd v Moyne Shire Council & Gardner (2006) VPR 48, recently observed that (at [55]):
"Planning literature is full of examples where conflict between incompatible uses leads to ongoing complaints and a souring of neighbourly relations. Often the uses [were] established prior to the introduction of planning controls or where controls were inadequate to prevent incompatible uses establishing."
68 See also Langdon v Macedon Ranges SC [2005] VCAT 1955, at [13], to similar effect. So, for a local example in the previous Tribunal in
(Page 16)
- this State, see Riseborough v Western Australian Planning Commission [2003] WATPAT 141 where subdivision approval was refused in part upon the following basis (original emphasis, at [21]):
"The lot [to be] created in the Special Rural Zone could, because of its size and dual zoning, be used for a commercial use more in keeping with the Rural Resource Zone. This would be inconsistent with the requirements of the Special Rural Zone, the zone in which the lot is predominately situated, which requires the land be used for residential and controlled non-commercial keeping of livestock and thus adversely affecting the amenity of the adjoining land owners".
70 In the circumstances set out immediately above (including, importantly, the application of Supreme Court authority concerning an unchanged definition in a Town Planning Scheme in relation to uncontested facts, and otherwise directly on point) it becomes redundant, perhaps impossible, to assess the amenity, safety and other aspects of the matter on its merits.
71 Thus this matter, it would seem, is quite different from Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219 (CA) where the applicant "brought two substantive issues to the Tribunal for determination" and the Chief Justice said, at [93], that "it will usually be appropriate for all the substantive issues presented to the [State Administrative] Tribunal for determination to be determined by the Tribunal, rather than being left for resolution another day, after remission to the Tribunal in the event that an appeal is successful".
72 The application for review cannot succeed and must therefore be dismissed, but on quite different grounds from those advanced by the respondent.
Costs
73 As has been mentioned, the applicant seeks costs in effect for the loss and delay caused to her by either the need to consider the impact of Kerkvliet, a matter she rightly suggests should have been brought to her and the Tribunal's attention earlier, or its application leading to a dismissal of her application (or on both grounds).
(Page 17)
74 The relevant statutory provisions dealing with costs in this jurisdiction and the general principles for dealing with such applications are fully set out in cases such as Shark Bay Tuna Farms Pty Ltd and Department of Fisheries [2005] WASAT 206 and Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 to which the Tribunal has had regard.
75 The Tribunal has given the most anxious consideration to the question of costs in this case but has had special regard to the constantly applied injunction in the cases just mentioned (and others dealing with the issue) that normally, in relation to a review matter, each party should bear their own costs in the proceeding: see also s 87(1) and s 87(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
76 The matter is, however, still one of discretion, having regard to that general proposition.
77 Section 30 of the SAT Act provides as follows:
"30. Decision-maker to assist Tribunal
In a proceeding for the review of a reviewable decision, the best endeavours of the decision-maker are to be used to assist the Tribunal to make its decision on the review."
79 Although it might be regarded as deplorable that a directly relevant case, frankly admitted to be within the immediate corporate knowledge of the respondent (and cited to this Tribunal as recently as May 2006 in a matter involving the City and a transport depot - Trecap Pty Ltd and City of Swan [2006] WASAT 142, referred to above), was not brought expressly to the attention of the Tribunal - and then early on in the matter - there is no evidence to suggest that this was done so as to be relevantly intentional or willed enough to bring it to a "state of wilfulness" deserving of a costs order against the respondent. It is also relevant that neither of the parties was legally represented and that it appears that none of the relevant planning officers had direct knowledge of the decision. (Cf the "unreasonable" conduct of the local government authority found in Morea Architects and Town of Vincent [2006] WASAT 263 which there attracted a costs order against the respondent.)
(Page 18)
80 Having regard to the long history of this matter, including the conduct of the applicant and her former representative in the proceedings (see the discussion above at the commencement of these reasons), and notwithstanding that on the face of it there is some conduct of the respondent which might be regarded as less than satisfactory, the Tribunal is nevertheless not satisfied that a departure from the normal course is justified.
81 There will be no order for costs.
Orders
82 For the reasons appearing above, the Tribunal orders that:
1. The application for review is dismissed.
2. The decision under review is affirmed.
3. There is no order as to costs.
I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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