Potter and Shire Of Northam

[2009] WASAT 118

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   POTTER and SHIRE OF NORTHAM [2009] WASAT 118

MEMBER:   MR P McNAB (MEMBER)

HEARD:   17 MARCH 2009

DELIVERED          :   28 APRIL 2009

FILE NO/S:   DR 410 of 2008

BETWEEN:   MARK POTTER

RAELENE POTTER
Applicant

AND

SHIRE OF NORTHAM
Respondent

Catchwords:

Town planning - Development application - Home business - Small printing business - Residential area - Shire refused approval citing scale of operation and amenity concerns - Officers twice recommended approval - Whether Home Occupation Policy contemplated printing business - Whether scale of machinery non-industrial - Whether any material amenity concerns - Whether 'precautionary approach' should be adopted - Tribunal finding policy contemplated use of appropriate machinery in home business - Tribunal also finding policy contemplated small printing operations - Scale of subject operation held to be non-industrial - Proposal noise compliant on Shire's own noise testing - Amenity concerns insufficient to warrant refusal - Small scale of proposal did not invite 'precautionary approach' - Review allowed and conditional approval given for initial period of 12 months

Legislation:

Shire of Northam Town Planning Scheme No 5, cl 4.3, cl 9.4, Table 1

Result:

The decision under review is set aside and conditional approval granted

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Mr C Hunt (Representative)

Solicitors:

Applicant:     Self-represented

Respondent:     Shire of Northam

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

Reynolds v Redland Shire Council [2000] QPEC 93

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. This review concerned the Shire of Northam's refusal to give planning approval for a small-scale home printing business in a residential area.  The Shire was concerned about the scale of the operation, its impact upon residential amenity and whether the local planning framework (a specific policy dealing with home businesses) contemplated such activities.

2. The Shire's planning officers twice recommended approval for the application.  The Tribunal agreed with the officers.  The policy expressly contemplated the use of non-industrial machinery.  The Tribunal held that the policy contemplated non-industrial small home-based businesses, such as this one.

3. Here, the machinery to be used was relatively modest and was wholly contained in a small insulated shed located at the rear corner of the applicants' property.  The Shire's noise measurements indicated compliance with noise standards.  None of the applicants' operations gave rise to any material amenity concerns.

4. The review was allowed and conditional approval was given for the business to operate for an initial period of 12 months.

5. What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.

Background

1. Mr and Mrs Potter applied to the respondent, the Shire of Northam (Shire or Council), on 5 May 2008 for planning approval for a home printing business.  Their application was eventually refused on 24 September 2008.  They lodged an application for review with this Tribunal on 24 October 2008.  Initial directions were held in November and that led to on-site mediation in early December 2008.  As a result of that on-site mediation, the matter was sent back to the Shire for reconsideration on 17 December 2008, but the Shire affirmed its earlier decision.

2. As a consequence, the matter was set down for a final hearing and that took place on 17 March 2009 in Northam, with an on­site inspection of the subject land on that date.  The matter proceeded briefly on 17 March 2009, with the Tribunal giving the respondent leave to file and serve an independent planner's report, given that the officers below (who were representing the respondent) had in fact recommended approval of the applicants' proposal.  That witness statement was received on 9 April 2009.  Mr S Pandevski, who is a consultant town planner, prepared it.

The applicants' proposal

1. The applicants' proposal is for a home printing business.  This requires an electrical printing machine and, as the site inspection clarified, there would be some associated electrical machinery with that printer.  The machine identified is a Heidelberg GTO printing machine 52­1.  It is proposed to take on small printing jobs, such as business cards, letterheads and invoices, and the business is to be operated by way of a pick-up and delivery service.  It is proposed to operate in ordinary business hours.

2. The printing is proposed to take place in a 6 metre by 6 metre insulated shed erected at the rear of the applicants' property.  The shed has now been fitted with an extraction fan.  I note that the machine is relatively small, standing just over 1.5 metres high.  I record that the Tribunal inspected the machine in Northam when it was operating.  The ink to be employed is ordinary printers' ink, which is a mixture of vegetable and petroleum oil with, according to the ink supplier, Toyo, 'a mild hydrocarbon odour'.  Carbon black, which is a component of the print, is listed by the printing supplier as a hazardous ingredient, if wrongly used.

3. The proposal is based upon the extension of three­phrase power which was already connected to the property, and that has been extended to the shed.  In general, the applicants' block is a relatively large area of land and it is improved by an existing dwelling and swimming pool surrounded by garden bed.

4. The formal description of the subject land is No 20 (Lot 127) Queen Street in the Town of Northam, which is all that land comprised in Certificate of Title Volume 66, Folio 454. The land is 856 square metres. For convenience of reference, I take these further descriptions from Mr Pandevski's witness statement, at [6] and [7]:

   The subject land is described, by way of street address as 20 Queen Street, Northam.  The subject land is located on the southern side of Queen Street towards the south­western portion approximately 40 metres to the east of where it begins to turn in a north­westerly direction and intersect with Hutt Street to the north beyond.

   It is understood that the existing development on the subject land comprises a single storey detached dwelling located towards the front of the property and facing Queen Street, a below ground swimming pool behind the existing dwelling that is not visible from Queen Street and a [36 square metre] (i.e. 6m x 6m) iron clad shed (outbuilding) located behind the pool and also not visible from Queen Street.

Planning framework

1. In this matter, the Tribunal has had regard to Shire of Northam Town Planning Scheme No 5 (TPS 5).  The subject land is zoned there as low density R15 residential.  The Tribunal has had regard to cl 4.3 in Table 1 and cl 9.4 of TPS 5 (respectively, the zoning table and the circumstances where there is a requirement for advertising).  The Tribunal has also had regard to the definition of home business in TPS 5 (see Sch 1).

2. In short, a home business may be conducted with the permission of the council or, on review, this Tribunal, as it is an 'A' use under TPS 5.

3. I turn to the other principal planning instrument, which is Pt 11 of the Shire's local planning policy adopted under TPS 5.  This policy is referred to as the Home Occupation Policy (Policy).  The definition within the Policy of 'home business' I need not set out in full, other than to draw attention to subclause (b) of that document, which in effect reads as follows: '[A home business is required to] not cause injury to or adversely affect the amenities of the neighbourhood'.

4. Apart from a query in relation to the proposal's compliance with subclause (b), the proposal otherwise appears to be consistent with the definition of 'home business' set out in the Policy.  No other use classification is appropriate.  The other matter from the definition that I draw attention to is the proviso in subclause 11.10, which provides as follows:

   All appliances or machinery to be used in a home occupation shall be specified by the applicant and shall be of a domestic scale or type.  The use of what the Council [and, on review, this Tribunal] considers to be industrial appliances or machinery will be prohibited.

5. Those two clauses resonate with the neighbours' and other concerns raised in this review.

The respondent's refusal

1. On 24 September 2008, the Council determined that the proposal would be inconsistent with the residential zoning in the immediate area; that it was reliant on the use of working machinery, with a consequential noise impact; and that other similar business operations were located in more appropriate commercial zones.  On 17 December 2008, similar reasons for refusal were advanced by the Shire.  It is to be recognised that such refusal took place over the recommendation, on both occasions, in favour of the applicants' proposal, a recommendation made by the expert planning officers.

2. I mention briefly the neighbours' amenity concerns.  It appears that only two objections were received from three surrounding properties.  In summary, these concerns were to do with noise, paper waste, chemicals, ink disposal, storage of chemicals, an alleged potential fire hazard and the scale of the operation in terms of its impact on the neighbourhood.  These concerns were, generally speaking, reflected in the respondent's refusal.

The respondent's case

1. The issues, facts and contentions statement prepared by Mr C Hunt (who is the senior planner in the Shire), concentrates on both the repetitive noise of the machine (notwithstanding the tests for noise, which apparantly show that the proposal is compliant) and the size of the machine.  These two matters were particularly emphasised in the respondent's cae.

2. Formal noise readings were taken by the Shire with the machinery in operation, the insulation in place and the door closed.  A reading of 35 dB was obtained which, I understand, satisfies any noise standards and is otherwise within acceptable limits, on the Shire's own evidence.

3. As I have already mentioned, Mr Pandevski produced an expert independent planner's report.  That statement of opinion come out against the applicants' proposal driven by, it appears, an alleged lack of information as to the scale and operation of the proposed home business.  Hence, Mr Pandevski endorsed the Council's adoption of a 'precautionary approach' (see page 10 of his witness statement).  Otherwise, Mr Pandevski thought that the scale of the operation was beyond that contemplated by the Policy.

The applicants' case

1. The applicants' case concentrated on three main matters.  Firstly, Mr Potter advanced some 'process' concerns regarding the advice that he had received from the Shire.  Secondly, he had spent the sum of $40,000 in preparation under what he thought was an approval under delegated authority.  I note that that sum indicates some sense of the scale of the machinery.  Finally, his point was that there were many comparative businesses running as home businesses in the Shire and its township.

2. The first argument is, with respect to Mr Potter, largely irrelevant and the third argument about comparative analysis lacked detail.  That observation also extends to the Shire's case in reply on this point.  I note, however, that at the hearing on 17 March 2009, we were able to clarify in a very general sense some of the comparative home businesses identified by the applicants.  In any event, I have not had regard to a comparative analysis, looking only at the proposal on its merits.  The scale, in terms of the capital cost indicated, is a matter that I will address in a moment.

Relevant principles

1. I turn to a discussion of the relevant principles involved.  The Tribunal's search for planning precedents in this matter has resulted in the discovery of very little direct authority.  There is, however,  Reynolds v Redland Shire Council [2000] QPEC 93 (Reynolds), a decision of Robin DCJ in the Planning and Environment Court of Queensland.

2. This was a case involving a screen printing 'home occupation' in an area which was comprised of retirees, holiday-makers and weekenders, with no real alternative planning zones - unlike here - for business and commercial operations.  The independent town planner engaged by the Redland Shire Council said, at [6]:

   Small scale screen printing should be well within the realms of home occupation.  It should also be appropriate to Amity Point [the relevant area], because it should be relatively inoffensive and should suit the various facets of Amity's character.

3. Now, that operation, at 69 square metres, was much larger than what is proposed here.  However, many of the complaints by neighbours and the concerns of the Council were mirrored here, but at perhaps a greater scale.  Approval had been given (in consent orders) and the case only turns upon the continuation of a 'sunset clause'.  The sunset clause, condition 5, provided as follows:

   This development approval shall lapse and cease to have effect on 31^st August 2000 unless the council agrees in writing to its extension ...

4. The Judge, because of amenity concerns, refused to set aside the sunset clause, but otherwise his Honour did not seem to doubt the opinions put forward by the independent planner.  In any event, the summary and conclusion of the independent planner in that case are, generally speaking, similar to the conclusions reached by the planners in this matter, other than Mr Pandevski.  The officers in this case said:

   Although, typically, a printing press is considered 'industrial', however, in this case Staff are satisfied that the specific machine proposed ... is small scale enough to be considered domestic.

Conclusion

1. This last matter seems to me to be a crucial matter in this review, involving as it does both the interpretation and application of the Policy.  I have to say that I fully agree with the officers' assessment.  It seems to me that if printing is contemplated as a home business - and I see no reason why it should not be so contemplated by the Policy (cf Reynolds) - then the scale of any machinery must be adjusted accordingly.  A home printer will ordinarily need an electric printing press.  Non­industrial machinery is in fact expressly contemplated by the Policy.  Therefore, a relatively small scale printing press can, in my opinion, be quite compatible with a home business.

2. In any event, there is nothing in the scale of this business operation that suggests a detrimental impact on amenity.  Some marginal increase in noise during the day will be apparent if the door is opened from time to time, but I stress that that is marginal.  Likewise, for the chemicals to be stored on site; these will be of a very small scale and the fumes that are likely to be produced extracted from the shed are likely to be of negligible impact on immediate neighbours, still less on the neighbourhood as a whole.

3. In summary, in this matter the Tribunal is not satisfied that this proposal, if properly regulated by conditions, and having regard to the resulting level of impact of it (in terms of noise, movement to and from and on the property, power consumption, odours produced from the shed or storage or waste concerns), should be considered as falling beyond the contemplation of TPS 5 and the Policy.  In addition, it is not of such a scale that would warrant the refusal of planning approval.

4. Given the modest scale of this proposal, I also do not see the need to adopt any 'precautionary approach' in this case.

5. In my opinion, for the reasons given above, the decision under review should be set aside and the home business should be approved for an initial period of 12 months on the draft conditions which have been agreed as between the parties.

Orders

1. The Tribunal makes the following orders.

Orders made on 28 April 2009

1.The application for review is allowed.

2.The decision under review is set aside, and in lieu thereof there will be a decision granting conditional approval for a period of 12 months for the applicants' printing home business in terms of the application made to the respondent.

3.The conditions shall be substantially those already agreed to between the parties, and shall be reflected in further supplementary orders to be issued in due course from the Tribunal.

Orders made on 29 April 2009

1.Further to paragraph 3 of the orders of the Tribunal made on 28 April 2009, the Tribunal imposes the following conditions upon the grant of planning approval:

(a)The applicant must reapply for a continuation of the approved land use (the home business) within 12 calendar months of the date of approval.

(b)If a new approval has not been granted at the time that the initial approval expires, the land use is to cease operating on the lot until such time as a new approval has been issued for the use.

(c)The applicant shall comply with the conditions of this approval and the Shire may, upon reasonable notice, revoke the approval if there is a substantial breach of any of the conditions and after attempts at conciliation with any complainant have failed.

(d)The operating hours of the home business shall be between 9.00 am to 5.00 pm on Monday to Friday, and between 9.00 am and 12.00 midday on a Saturday unless written approval from council is obtained to vary these hours.

(e)The printing shed doors are to be closed when the printing machine is operating.

(f)The applicant shall be permanently resident at the premises while it is being used for home business purposes.

(g)No more than two persons, who are normally resident at the premises, and no more than two persons not resident at the premises, may be employed in the home business.

(h)The home business shall be conducted in such a manner that it will be as far as is practicable unobtrusive in the neighbourhood, and will not otherwise prejudicially affect the amenity of the neighbourhood.

(i)No advertisement other than a small sign of up to 0.2 square metres depicting the type of home business and telephone numbers will be permitted at the premises.

(j)The home business shall not give rise to vehicular traffic beyond that which is normal to the neighbourhood or otherwise lead to a requirement for parking other than that which can normally be expected at the premises.

(k)No parking on the street or road verge will be permitted.

(l)Collections or deliveries shall not involve anyone other than the applicant visiting the premises.

(m)Goods shall not be sold at the premises.

(n)The storage of non-domestic amounts of pesticides or swimming pool chemicals, or any explosive or dangerous or toxic materials, including large quantities of printing inks/chemicals is not authorised under this approval.

(o)The storage of any printing inks/chemicals in connection with the home business must be done to the CEO of the Council's satisfaction.

(p)Council reserves the right to inspect the premises upon reasonable notice.

(q)The home business is to operate 'by appointment' only during the operating hours nominated in these conditions.

I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR P McNAB, MEMBER