PARKER and SHIRE OF AUGUSTA - MARGARET RIVER - [2005] WASAT 126

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: PARKER and SHIRE OF AUGUSTA - MARGARET RIVER [2005] WASAT 126

MEMBER: MS B MOHARICH (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 3 JUNE 2005

FILE NO/S: RD 312 of 2004

BETWEEN: MICHELLE PARKER
Applicant
AND
SHIRE OF AUGUSTA - MARGARET RIVER
Respondent

Catchwords:

Development - Preliminary point - Use class classification - Bed and breakfast facility - Whether definition is exhaustive

Legislation:

Land and Environment Court Act 1979 (NSW), s 39(2)

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
State Administrative Tribunal Act 2004 (WA), s 29(1)

Town Planning and Development Act 1928 (WA), s 8A

Result:

The Tribunal has power to approve a bed and breakfast use which provides facilities that are not listed in the definition of bed and breakfast in TPS 18.
The matter is listed for a further directions hearing at 4 pm on Wednesday 15 June 2005, at which time the parties will explain to the Tribunal as to how they wish the matter to progress.

Category: B

Representation:

Counsel:

Applicant: Mr P May
Respondent: Ms S Boulter

Solicitors:

Applicant: Beere May & Meyer
Respondent: Office of the Shire of Augusta Margaret River

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

City of Cockburn v McNiece Industrial Systems Pty Limited (unreported, Full Court Supreme Court of WA, Appeal No.187 of 1984, 24 September 1984)
Deepblue Enterprises Pty Ltd v Town of Port Hedland [2003] WATPAT 32
Napoli v City of Stirling [2004] WATPAT 81

Case(s) also cited:

Nil

MS B MOHARICH (MEMBER)

REASONS FOR DECISION

Introduction

This is an application for review of a condition attached to the approval by the respondent of a bed and breakfast facility at Lot 28 Baudin Drive Gnarabup.
The land is more particularly described as Lot 28 on Plan 19968, and being the whole of the land the subject of Certificate of Title Volume 2010 Folio 112. The land is zoned Residential in the Shire of Augusta – Margaret River Town Planning Scheme No.18 ("TPS 18").
The application was lodged on 22 June 2004. The applicant applied for a bed and breakfast facility which, from the plans provided, comprises two separate guest spaces – one on the northern side of the existing residential dwelling on the site, and the other on the south western side. Both of the guest spaces have separate entrances, but also are accessible from, and have access to, the main part of the existing residential dwelling. Each guest space contains a bedroom, a sitting/living area, an ensuite and a kitchenette, with a refrigerator, single cooktop and a sink.
The respondent approved the application on 29 October 2004, subject to condition 10, which is the condition the subject of the application for review:
"As shown in red on the approved plan P2, the kitchen facility and sink fixtures within both the proposed bed and breakfast areas shall be decommissioned (removed) to the satisfaction of Council prior to commencement of the use hereby approved."
The matter was commenced as an appeal to the Town Planning Appeal Tribunal on 16 December 2004. The Town Planning Appeal Tribunal was abolished by the commencement State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) on 1 January 2005, and from this date on, the jurisdiction of the abolished Town Planning Appeal Tribunal was transferred to the State Administrative Tribunal.
The matter has come on for a hearing on a preliminary issue as to whether it is possible for the State Administrative Tribunal to approve an application for a bed and breakfast use whose facilities exceed the list of facilities described in the "bed and breakfast" definition in Schedule One of TPS 18:
"[M]eans accommodation for not more than four (4) adults or one family in an establishment containing a maximum of two (2) bedrooms and one (1) guest bathroom, located under the main roof of the dwelling house."
The use of land for a "bed and breakfast" is an SA use in TPS18, which means that it may be approved after being advertised as required by the Scheme.
The respondent says that the condition was imposed to bring the use in to line with the bed and breakfast definition. Without the condition, the respondent says that it would be more akin to another use in TPS 18, such as a motel, or a holiday cabin, or chalets, which are also SA uses under TPS 18. It is difficult to understand why, in light of the fact all of these uses could be permitted in the Residential zone, that the respondent imposed a condition to change what had been applied for. In its submissions, the respondent notes:
"Following classification of the appropriate use class for the Proposal as a Holiday Cabin and Chalet use or a Motel use, the Respondent Shire determined that in order for the Proposal to be classified as a Bed and Breakfast, the kitchen facility … would have to be removed. There is no appeal to the Tribunal under clause 8.5 of Town Planning Scheme No.18 available to the Applicant for the Respondent Shire's classification of use."
The respondent says that but for condition 10, it would have had no power to approve the application, as it would not have been a bed and breakfast, because the definition of bed and breakfast in TPS 18 is an exhaustive list of facilities.
The respondent says that as it has classified the use as a bed and breakfast, and the only way it could be a bed and breakfast is with the imposition of condition 10, the Tribunal has no power to remove it, because in doing so it will be effectively changing the use classification.
In this statement, the respondent relies upon the decisions in City of Cockburn v McNiece Industrial Systems Pty Limited (unreported, Full Court Supreme Court of WA, Appeal No.187 of 1984, 24 September 1984), and Deepblue Enterprises Pty Ltd v Town of Port Hedland [2003] WATPAT 32. The facts in these cases, however, are quite different. In both, the use to which the activity was classified was prohibited in the particular zone, and therefore there was never a "refusal" made using discretionary power which would give rise to a right of appeal under s 8A of the Town Planning and Development Act 1928 (WA) (or analogous provision under a town planning scheme). In this case there is no question about the fact that the respondent made a decision exercising its discretion, as any use to which the land could have been classified (that is, bed and breakfast, motel or holiday cabin and chalet) was a discretionary use.
Reference to should made at this point to s 29(1) of the State Administrative Tribunal Act 2004:
"The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision."
This section is in similar terms to section 39(2) of the Land and Environment Court Act 1979 (NSW). There is much case law on s 39(2), most notably, McDougall v Warringah Shire Council (1993) LGERA 151. The New South Wales case law suggests that "functions" includes administrative as well as decision‑making functions, which ultimately may allow the Tribunal to go behind the decision to determine the use classification.
In this case however, this is not necessary. This is because it is my view that the definition of bed and breakfast does not provide an exhaustive definition of facilities which may be allowed within a bed and breakfast use. This must be the case, as the respondent has approved a bed and breakfast use with one bathroom more than that which should be allowed under the definition.
This would appear to be a variation of an express requirement of the definition. In the decision of Napoli v City of Stirling [2004] WATPAT 81, the Town Planning Appeal Tribunal specifically made reference to the fact that a definition could include a development standard which may be varied where the scheme allows variation. TPS 18 allows variation in clause 6.2.
It would appear to me that the purpose of the definition is to limit the intensity of the use by limiting the number of people on the premises. While the respondent notes that the definition of bed and breakfast has been changed to specifically require no kitchen in its new draft scheme, this is not determinative where the definition in the current TPS 18 is clear on its face.
Therefore, it I am satisfied that the Tribunal does have power to approve a bed and breakfast use which includes facilities over and above those listed in the definition.

Orders

The orders of the Tribunal are as follows:
1.The Tribunal has power to approve a bed and breakfast use which provides facilities that are not listed in the definition of bed and breakfast in TPS 18.
2.The matter is listed for a further directions hearing at 4 pm on Wednesday 15 June 2005, at which time the parties will explain to the Tribunal as to how they wish the matter to progress.
I certify that this and the preceding 5 pages comprise the reasons for decision of the Tribunal.
______________________________
B Moharich
Member