OPTUS MOBILE PTY LTD and CITY OF SWAN
[2016] WASAT 72
•16 JUNE 2016
OPTUS MOBILE PTY LTD and CITY OF SWAN [2016] WASAT 72
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 72 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:321/2015 | 23 FEBRUARY 2016 | |
| Coram: | MS L EDDY (MEMBER) | 16/06/16 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | OPTUS MOBILE PTY LTD CITY OF SWAN |
Catchwords: | Town planning Development application Development involving construction of mobile phone base station Preliminary issues Whether proposed development is 'Tourism & Recreation Resort' or 'Telecommunications Infrastructure' Whether proposed development involves 'incidental use' |
Legislation: | City of Swan Local Planning Scheme No 17, cl 4.3.3, cl 4.3.3(b), cl 4.4.1, Sch 1 Pt B, Sch 4 Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004 (WA) |
Case References: | Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SLR (WA) 125 City of Swan v Taylor [2005] WASCA 88 Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431 Lizzio v Ryde Municipal Council (1983) 155 CLR 211 Price and Shire of Gingin [2008] WASAT 201 Shire of Perth v O'Keefe (1964) 110 CLR 529 Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88 Turnbull Group v North Sydney Council [1998] NSWLEC 253 Yujnovich and Town of Port Hedland [2016] WASAT 19 |
Orders | 1. The application for review is dismissed., 2. The decision of the respondent made on 12 August 2015 is affirmed. |
Summary | The application was for review of the respondent's decision to refuse the applicant's proposed development on the basis that the proposed use of the site for a 'Telecommunications Infrastructure' within the meaning of the relevant local planning scheme and this was not a use that was able to be permitted in the relevant zone. In this decision, the Tribunal considered two preliminary issues, namely; (1) Whether the land use classification for the proposed development is 'Tourism & Recreation Resort' or 'Telecommunication Infrastructure'; and, (2) If the land use for the proposed development is properly classified as 'Telecommunications Infrastructure', whether the proposed land use is an incidental use under cl 4.3.3 of the City of Swan Local Planning Scheme No 17. ,The Tribunal determined that the proposed development does not come within the meaning of 'Tourism & Recreation Resort' as that term is used in the City of Swan Local Planning Scheme No 17. Rather, the proposed development is properly characterised as 'Telecommunications Infrastructure'. In relation to the second preliminary issue the Tribunal determined that the proposed development was not an incidental use. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : OPTUS MOBILE PTY LTD and CITY OF SWAN [2016] WASAT 72 MEMBER : MS L EDDY (MEMBER) HEARD : 23 FEBRUARY 2016 DELIVERED : 16 JUNE 2016 FILE NO/S : DR 321 of 2015 BETWEEN : OPTUS MOBILE PTY LTD
- Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning Development application Development involving construction of mobile phone base station Preliminary issues Whether proposed development is 'Tourism & Recreation Resort' or 'Telecommunications Infrastructure' - Whether proposed development involves 'incidental use'
Legislation:
City of Swan Local Planning Scheme No 17, cl 4.3.3, cl 4.3.3(b), cl 4.4.1, Sch 1 Pt B, Sch 4
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA)
Result:
Application dismissed
Summary of Tribunal's decision:
The application was for review of the respondent's decision to refuse the applicant's proposed development on the basis that the proposed use of the site for a 'Telecommunications Infrastructure' within the meaning of the relevant local planning scheme and this was not a use that was able to be permitted in the relevant zone. In this decision, the Tribunal considered two preliminary issues, namely; (1) Whether the land use classification for the proposed development is 'Tourism & Recreation Resort' or 'Telecommunication Infrastructure'; and, (2) If the land use for the proposed development is properly classified as 'Telecommunications Infrastructure', whether the proposed land use is an incidental use under cl 4.3.3 of the City of Swan Local Planning Scheme No 17.
The Tribunal determined that the proposed development does not come within the meaning of 'Tourism & Recreation Resort' as that term is used in the City of Swan Local Planning Scheme No 17. Rather, the proposed development is properly characterised as 'Telecommunications Infrastructure'. In relation to the second preliminary issue the Tribunal determined that the proposed development was not an incidental use.
Category: B
Representation:
Counsel:
Applicant : Mark Etherington
Respondent : Craig Slarke
Solicitors:
Applicant : Clayton Utz
Respondent : McLeods
Case(s) referred to in decision(s):
Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SLR (WA) 125
City of Swan v Taylor [2005] WASCA 88
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Price and Shire of Gingin [2008] WASAT 201
Shire of Perth v O'Keefe (1964) 110 CLR 529
Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88
Turnbull Group v North Sydney Council [1998] NSWLEC 253
Yujnovich and Town of Port Hedland [2016] WASAT 19
Introduction
1 On 9 July 2015 an application for development approval was lodged with the City of Swan (respondent) on behalf of Optus Mobile Pty Ltd (applicant). In that application approval was sought for the construction of a mobile phone base station on Lot 1003 Verdelho Drive, The Vines (site). That application was refused by the respondent on the basis that it was the respondent's view that the proposed development could not be approved under the City of Swan Local Planning Scheme No 17 (LPS 17 or Scheme). This was on the basis that the respondent took the view that the proposed development involved use of the site for a 'Telecommunications Infrastructure' within the meaning of LPS 17, and this was not a use that was able to be permitted in the relevant zone.
2 On 9 September 2015, the applicant lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the respondent's decision to refuse the application for development approval.
3 At the request of the parties, the Tribunal ordered that a preliminary issue was to be determined and a hearing of that issue was listed for February 2016. The preliminary issue to be determined was identified as 'whether the use of "Telecommunication Infrastructure" is a use that is permitted by the respondent's LPS 17 within the Special Use Zone No 3 (SUZ3) that is applicable to the subject lot.' By orders made in January 2016, the preliminary issue was amended to include two issues as follows:
(a) whether the land use classification for the proposed development is 'Tourism & Recreation Resort' or 'Telecommunications Infrastructure'; and
(b) if the land use for the proposed development is properly classified as 'Telecommunications Infrastructure', whether the proposed land use is an incidental use under cl 4.3.3 of the respondent's local planning scheme No 17.
4 After hearing submissions from both parties in relation to the preliminary issues, the decision was reserved. What follows are the decisions and reasons for decision in relation to the preliminary issues.
Relevant Facts
5 The following facts are taken from the Joint Statement of Agreed Facts lodged with the Tribunal on 18 January 2016.
6 The mobile phone base station, the subject of the development proposal, includes the following physical components:
a) a 40m tall monopole;
b) six panel antennas closely mounted on the monopole's circular headframe;
c) a radio communications dish mounted on the monopole at 35m above the ground;
d) an outdoor equipment cabinet located at the base of the monopole;
e) underground cabling between the cabinet and antenna devices;
f) installation of associated ancillary equipment, including 39 radio remote units; and
g) a 2.4m high chain link fence.
7 The area to be covered by the proposed development is 42m2. It is proposed to be located within the site at a point that is 1,670m from the northern boundary, 520m from the western boundary, 725m from the southern boundary and 780m from the eastern boundary of the site.
8 The proposed development is intended to provide improved mobile coverage and internet speed and a better customer experience of mobile phone calls, text messages and internet access through mobile data service generally in the localities of the Vines and Ellenbrook.
9 Currently on the site is the Vines Resort and Country Club (Resort) which includes, amongst other things:
a) accommodation facilities;
b) a conference facility;
c) two golf courses;
d) a day spa; and
e) dining facilities including a restaurant, cafés and bars.
10 The site is one of the lots within the SUZ3. That zone also includes approximately 1,320 residential lots. These lots, together with the Resort are within the locality described as 'The Vines'. The area of coverage that would be provided by the proposed development includes all of SUZ3 and some parts of the neighbouring Special Use Zone 4 (SUZ4).
City of Swan Local Planning Scheme No 17
11 The site is zoned as SUZ 3 in LPS 17. In relation to this zone, LPS 17 states:
4.7.1 Special Use zones are set out in Schedule 4 and are in addition to the zones in the Zoning Table.
4.7.2 A person must not use any land, or any structure or buildings on land, in a special use zone except for the purpose set out against that land in Schedule 4 and subject to compliance with any conditions set out in Schedule 4 with respect to that land.
12 Schedule 4 of LPS 17 provides, in relation to SUZ 3, that the following uses are 'P' (permitted):
Home Occupation;
Tourism & Recreation Resort comprising:
• Golf Courses;
• Resort Centre Facilities including restaurants etc;
• Outdoor recreation including tennis, bowls, swimming pool, horse riding;
• Indoor Recreation (including squash, gym, billiards);
• Hotel/motel accommodation;
• Ancillary retailing including souvenirs, convenience goods;
• Ancillary services such as hairdressing;
• Single houses or multiple dwellings at densities depicted on the Structure Plan.
- In addition, it provides that the following uses are 'D' (use is not permitted unless the respondent has exercised its discretion by granting planning approval):
Home Business;
Grouped dwelling at densities depicted on the Structure Plan;
Ancillary Accommodation.
… land used to accommodate any part of the infrastructure of a telecommunications network and includes any line, equipment, apparatus, tower, antenna, tunnel, duct, hole, pit or other structure used, or for use in or in connection with, a telecommunications network and includes Radio & T.V. Installations used for business purposes or commercial gain[.]
14 This land use category is not specifically referred to anywhere in Sch 4 of LPS 17. However, in relation to Special Use Zone 9, a use that potentially comes within that category, what is described as 'radio communications station' is specified as a 'P' (permitted) use.
15 Other provisions of LPS 17 that are relevant to determination of the preliminary issues are:
4.3.3 (b) the change is to an incidental use that does not change the predominant use of the land, and complies with all the relevant development standards and requirements applicable under the Scheme including any requirements applicable under any current planning approval pertaining to the land.
…
4.4.1 Where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.
Land use classification
16 The applicant's primary submission is that the proposed development should not be characterised as use of the site for Telecommunications Infrastructure because the purpose of the proposed development is to provide mobile telephone coverage within SUZ3. The applicant relies on the decisions in Shire of Perth v O'Keefe (1964) 110 CLR 529 at [534] [535] (O'Keefe), and Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88 (Snowdale) in support of its reliance on purpose in seeking to characterise the proposed land use category.
17 Applying the intended purpose of the proposed development, the applicant submits that it potentially meets the description of more than one land use category in LPS 17. According to the applicant, the use of land as a Tourism and Recreation Resort generates a particular demand for mobile coverage, thus the purpose of the proposed development better fits the more specific land use category 'Tourism & Recreation Resort' as defined in Sch 4 of LPS 17. Further, the provision of mobile coverage is the provision of a service and, as such, it is something that comes within the concept of 'ancillary services', which is included as part of the definition of 'Tourism & Recreation Resort' in Sch 4 of LPS 17.
18 The respondent submits that while the general principle in O'Keefe, relied upon by the applicant is not disputed, it must be kept in mind that that decision concerned existing use rights. Given the specific principles that apply to interpretation of existing use rights, caution must be taken in applying principles from such cases to classification of land use in a new development application. In support of this contention, the respondent refers to Price and Shire of Gingin [2008] WASAT 201 in which his Honour Sheahan J's comment in Turnbull Group v North Sydney Council [1998] NSWLEC 253, at [72] is cited:
… When one approaches the task of characterising an existing use one adopts a liberal and broad construction in favour of the user, but when one characterises a development application, one closely examines the precise activities proposed.
19 The respondent's position is that the starting point must be the land use definitions in the relevant town planning scheme. It says that ascertaining the purpose of a proposed use may be necessary, or at least helpful, in cases where the relevant land use definition references activities. However, in this case, the respondent submits there is no need to resort to any inquiry into the purpose of the proposed development given that the relevant land use definition refers to land used to accommodate the identified type(s) of infrastructure.
20 In addition, the respondent disputes that the proposed development comes within the reference to 'ancillary services' that is part of the definition of the 'Tourism & Recreation Resort' use described in Sch 4 of LPS 17. This is because the proposed development is a piece of infrastructure and not a service. Even if it could be considered as a service, it is not a service of the type meant as it is not provided by, or as part of, the resort for its clients. Rather it is a development that will serve a locality that includes the resort and areas outside of the resort.
21 It is correct that the characterisation of the proposed development in terms of the land use classification in the original application, or by the respondent in making its decision, is not determinative of the question of its correct characterisation: Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SLR (WA) 125; Yujnovich and Town of Port Hedland [2016] WASAT 19. As stated by his Honour Steytler J in the decision of Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431, at [52]:
... [E]ach proposal must be looked at on its own merits. The classification of the proposed uses should not be carried out in either a mechanical or in an arbitrary way.
22 In relation to the question of whether, and to what degree, the purpose of the proposed development is relevant to the determination of the proper characterisation of the land use involved in the proposed development, I am not persuaded that in this case the purpose, in terms of intended outcome of the development, is determinative. It can be accepted that in questions of characterisation of land use in relation to a proposed development, it is often necessary to determine as a question of fact what is actually involved. In many cases questions of purpose will be relevant to, and important in, that determination. In considering purpose in relation to a proposed development, as opposed to in relation to an existing use or historical development consent, caution must be taken in seeking to rely on and directly apply principles identified in the decisions concerning the latter situation.
23 In this case, the question of characterisation depends on issues of statutory construction rather than any need to work out what activities are involved in the proposed development and the purpose of those activities. The proposed development involves construction of infrastructure that will be used, as part of a wider set of infrastructure, to provide improved mobile telephone coverage for customers of the applicant within an area that includes SUZ3. A purpose can be identified, but this does not assist in determining whether the proposed development involves a use that is permissible within SUZ3. Rather, it is necessary to focus on how the land use classification 'Tourism & Recreation Resort' and the components of that classification are to be properly understood.
24 Looking at Sch 4 of LPS 17 as a whole, it is apparent that the land use classifications in that schedule do not entirely conform to those used in the zoning table (and as defined in Sch 1 of LPS 17). The land use 'Tourism & Recreation Resort' is an example of the introduction in Sch 4 of a land use classification not used elsewhere in LPS 17. However, Sch 4 of LPS 17 also refers to some land use classifications that are consistent with those used elsewhere in LPS 17.
25 The applicant submitted that 'Tourism & Recreation Resort' as used in Sch 4 of LPS 17 is, in effect, a short hand reference, or an amalgamation, of a number of land use classifications used in the zoning table of LPS 17. This submission is partly correct.
26 'Tourism & Recreation Resort' is described in Sch 4 of LPS 17 as 'comprising' a number of other land use classifications, but only some of those are land use classifications that are used in the zoning table and defined in Sch 1 of LPS 17. Others involve descriptions that are different (apparently intentionally so) to the defined land use classifications.
27 For example, 'Tourism & Recreation Resort' includes 'outdoor recreation (including tennis, bowls, swimming pool, horse riding)' and 'indoor recreation (including squash gum, billiards)'. The defined land use classifications in Sch 1 of LPS 17 relevantly include 'recreation private' and 'recreation public', but neither of these terms was referred to in the description of 'Tourism & Recreation Resort' in Sch 4 of LPS 17. When regard is had to the definitions of the recreation land use classifications in Sch 1 of LPS 17, it is apparent that this must have been intentional. 'Recreation private' is defined to mean 'premises used for indoor or outdoor leisure, recreation or sport which are not usually open to the public without charge' and 'recreation public' is defined to mean 'premises used for indoor or outdoor leisure, recreation or sport which are generally open to the public without charge'. In the context of the use class 'Tourism & Recreation Resort' it can be readily understood that the limitation to recreation being provided 'generally without charge' in each of the terms 'recreation private' and 'recreation public' would be undesirable. Hence there was a need to use different terms in relation to the use of land for recreation purposes within the 'Tourism & Recreation Resort' context.
28 The question then, is whether the 'umbrella' or overarching land use classification 'Tourism & Recreation Resort' includes use of land as proposed by the applicant.
29 The statement that 'Tourism & Recreation Resort' comprises a number of listed uses leaves no room for any argument that it includes any uses that are not listed. However, the fact that the proposed development directly meets the definition of 'Telecommunications Infrastructure' and that land use classification is not expressly included as one of the uses that comprise 'Tourism & Recreation Resort' is not determinative of the question. The unique nature of the land use classification 'Tourism & Recreation Resort' as one comprising a number of other land uses leaves no room for any application of the standard approach of identifying, if a proposed development is capable of coming within more than one land use classification, which classification 'best fits'. Further, the deemed exclusion of a more specific use from more general land use classifications caused by cl 4.4.1 of LPS 17 plainly does not extend to land use classifications that are not used in the zoning table. As can be seen from the general land use classification 'Tourism & Recreation Resort' contained in Sch 4 of LPS 17, to understand cl 4.4.1 as applying to land use classifications outside of the zoning would lead to an absurd result.
30 The applicant argues that its proposed development falls within 'ancillary services', which is one of the uses that comprise 'Tourism & Recreation Resort'.
31 There is no land use classification 'ancillary services' or even 'services' defined in Sch 1 of LPS 17. The only guidance given in LPS 17 as to what is meant by 'ancillary services' is by reference to the example 'such as hairdressing' directly following the words 'ancillary services'. The Oxford Dictionary Online (2016) defines 'ancillary' as:
Providing necessary support to the primary activities or operation of an organization, system, etc;
In addition to something else, but not as important;
…
Something which functions in a supplementary or supporting role.
32 In accordance with the ordinary meaning of the word 'ancillary', the services included within 'Tourism & Recreation Resort' must be understood as only those that are connected with, and supplementary or supportive of, the dominant use(s). In this case, the dominant uses must be the other uses that comprise 'Tourism & Recreation Resort' that are not described as 'ancillary'.
33 The term 'services' is one of potentially multiple meanings, but having regard to the example given and to the context, would seem to here denote the provision of a service as opposed to the offering for sale of a good.
34 The respondent submitted that the example 'such as hairdressing' meant that 'ancillary services' must be taken as meaning only services of a personal nature. I am not satisfied that the phrase, which has an otherwise broad meaning, should be taken as including only one type or category of service simply because a single example is attached to the phrase. This is not a case where a group or genus has been described by the drafter such that it may be appropriate to consider whether the eusjdem generis principle should be applied.
35 When one considers the defined land use classifications in Sch 1 of LPS 17, it is apparent that a significant number of these include activities that come within the ordinary meaning of the term 'services'. Having regard to this context, it is apparent why the term 'services' is used in 'Tourism & Recreation Resort' rather than listing all of the already defined land use classifications that it might be assumed were intended to be allowed, so long as they were ancillary. Thus there is simply insufficient basis having regard to the words used within the context of the Scheme as a whole to find that the phrase 'ancillary services' should be understood as limited in the way proposed by the respondent.
36 The applicant says that the proposed development, which is properly understood, by reference to its purpose, as the provision of mobile telephone coverage within SUZ3, is an 'ancillary service'. In my view this submission must fail. While it may be that infrastructure of this type (that is, of the type here proposed) is used, as part of a wider complex of infrastructure, technology and personnel to provide mobile telephone coverage, it is artificial to describe the use of the land that hosts a single piece of infrastructure as providing a service within the ordinary meaning of that word. The definition of 'Telecommunications Infrastructure' in Sch 1 of LPS 17 is phrased in terms of land used to accommodate relevant infrastructure. This is, in my view, consistent with the ordinary understanding that, in such a case, the land is being used to house a 'thing' and not to provide a service within the ordinary meaning of that word.
37 In light of the words used within the context of LPS 17 as a whole, I am not satisfied that the proposed development comes within the meaning of 'Tourism & Recreation Resort' as that term is used in Sch 4 of the Scheme. The proposed development is properly characterised as 'Telecommunications Infrastructure'.
Incidental use
38 The applicant submits that, even if the proposed development is properly classified as 'Telecommunications Infrastructure', cl 4.3.3(b) of LPS 17 allows the proposed development to occur on the site because it is an incidental use that does not change the predominant use of the land.
39 The parties agree that the definition of 'incidental use' in LPS 17, being 'use of premises which is ancillary and subordinate to the predominant use', in essence captures the relevant common law principles in relation to determining whether a use is incidental.
40 In summary, the term 'incidental' must be understood in accordance with its ordinary meaning: City of Swan v Taylor [2005] WASCA 88, at [67]. Thus it is necessary to identify the predominant use and then determine whether the proposed use is consequent upon such a use, or naturally attaching, appertaining or relating to the use. One also has to look at the nature of the proposed incidental use, its scale and regularity and the extent of the activities involved: Snowdale, at [59]. The question is one of fact and degree: Lizzio v Ryde Municipal Council (1983) 155 CLR 211, at 216-217.
41 The applicant submits that the predominant use of SUZ 3 is the Resort and residential development. The proposed development is intended to provide mobile coverage, which is a necessary incidental use to those predominant uses. It is submitted that although the proposed development will provide some mobile coverage to land outside of SUZ3, this is a proportionately small extent when compared to the coverage within SUZ3. The scale, regularity and extent of the mobile coverage outside of SUZ3 is not such that the proposed development should be described as being independent of the SUZ3 zone.
42 The respondent submits that the question of whether the proposed use is an incidental use does not require consideration of the predominant use of SUZ3, but rather of the predominant use of the site. The respondent submits that the Resort is the predominant use of the site. As the proposed development is intended to provide mobile coverage to an area roughly equivalent to the SUZ3 zone as a whole, rather than just the site, the necessary relationship between the proposed development and the site's predominant use is absent.
43 In LPS 17 the term 'premises' is defined to mean 'land or buildings'. The applicant submits that the reference to 'land' in this definition, as opposed to a 'lot' indicates that 'incidental' development is intended, in LPS 17, to mean incidental to the relevant area of land, which in this case, is the entire area of SUZ3.
44 The term 'land' might, depending on the context, convey a single unit or lot of land or alternatively a larger area of land. As always in questions of statutory interpretation, the context is key.
45 Clause 4.3.3(b) of LPS 17 provides that a change in the use of land from one use to another is permitted without any requirement for planning approval if, relevantly, the change is to an incidental use that does not change the predominant use of the land, et cetera. The reference to 'land' in this clause can only be understood as referring to the lot or lots on which the use is to occur. The reference to an 'incidental use' is grammatically linked to 'the land' and the provision only makes sense if one understands the reference to 'incidental use' in this way.
46 The definition of 'incidental use' in LPS 17, in its reference to 'premises' involves a consistent use of the concept of 'land' without clarifying whether a single unit of land or some larger area of land is intended to be referred to. The reference to 'land' in the definition of 'premises' cannot, in context, be understood as necessarily referring to a larger area of land as opposed to a lot or lots of land.
47 I am satisfied that having regard to the context, 'incidental use', as that phrase is used in cl 4.3.3(b) of LPS 17 requires consideration of the use of the particular lot or lots in relation to which development approval would have to be obtained if the change of use in question is not to an incidental use.
48 For the proposed development to be an 'incidental use', it is necessary that the proposed development involve a use that is related to, and ancillary or subordinate to, the current use of the site. On the facts before me, the proposed development involves infrastructure intended to achieve improved mobile telephone coverage over the entire SUZ3 zone, including over a thousand residential lots, and to a limited degree, beyond that zone. I am not satisfied that the proposed development is an incidental use.
Conclusion
49 Given the findings made in relation to each of the preliminary issues, there is no ability to consider the applicant's proposed development on its merits as it is not a use that may be permitted within SUZ3. Therefore the application for review must be dismissed.
Orders
The tribunal orders:
1. The application for review is dismissed.
2. The decision of the respondent made on 12 August 2015 is affirmed.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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