RANDO and CITY OF GOSNELLS - [2019] WASAT 6

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   RANDO and CITY OF GOSNELLS [2019] WASAT 6
MEMBER:   MR S WILLEY (MEMBER)
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   26 FEBRUARY 2019
FILE NO/S:   DR 271 of 2018
BETWEEN:   CRAIG RANDO
SAM RANDO
Applicants
AND
CITY OF GOSNELLS
Respondent

Catchwords:

Town planning - Development application - Preliminary question - Basis of application for review - Land use classification - Principles of interpretation for planning schemes - Whether proposed use correctly classified as 'Motor Vehicle Repair' or 'Service - Industry - Whether proposed use incidental or ancillary to approved use - Whether draft planning scheme amendment relevant to the classification of land uses

Legislation:

City of Gosnells Local Planning Scheme No 6, cl 1.5, cl 1.5(d), cl 1.6(d), cl 3.1, cl 3.2, cl 3.3.1, cl 3.3.2, cl 3.3.4, cl 3.3.4a), cl 3.4.1, cl 3.4.2, Sch 1
Interpretation Act 1984 (WA), s 18
Metropoliton Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 60, cl 61, cl 64, cl 67, cl 67(b), cl 67(w), cl 68, cl 76, Pt 5, Pt 7, Pt 8, Pt 9
Planning and Development Act 2005 (WA), s 68(1)(a), s 68(1)(b), s 252(1), s 252(2), s 256, s 257B, Pt 14
State Administrative Tribunal Act 2004 (WA), s 60(2)
Town Planning and Development Act 1928 (WA)

Result:

Preliminary issue determined

Summary of Tribunal's decision:

Craig Rando and Sam Rando sought review of the City of Gosnells' decision to refuse their application to allow certain additional activities as part of an approved development. The approved development is a tyre sales and fitting use which was classified by the City as 'Industry Service'. The City approved the tyre sales and fitting use on 10 July 2018. The additional activities the applicants sought approval for were logbook servicing and adjustment of front end braking, electronic diagnosis and reprogramming and the sale and fitting of batteries.
The relevant land (Lot 37) is zoned Mixed Business in the City of Gosnells Local Planning Scheme No 6 (LPS 6).
On 23 October 2018 the City of Gosnells refused the additional activities on Lot 37 on the basis that they were classified as Motor Vehicle Repair and therefore prohibited in the Mixed Business Zone.
The applicants challenged the City's decision on a number of bases. Firstly, the activities fell within the Industry Service Zone and were already authorised under the approval granted on 10 July 2018. Secondly, in the alternative, the additional activities were a use not listed and therefore discretion was available pursuant to cl 3.4.2 of LPS 6. Thirdly, the additional activities were incidental to the tyre sales and fitting activities. Fourthly, Draft Amendment 180 which will, if approved in its current form, rezone Lot 37 to Highway Commercial is a seriously entertained planning proposal.
The Tribunal determined that the proposed additional activities were properly classified as Motor Vehicle Repair and were therefore prohibited in the Mixed Business Zone. The Tribunal did not accept the applicants' primary argument that the 'servicing' of a motor vehicle is a different land use than the 'repair' of a motor vehicle. The Tribunal found that to accept the applicants' argument would be to read and apply LPS 6 narrowly and pedantically and contrary to established principles. The Tribunal found that Draft Amendment 180 was not relevant to the question of how the proposed additional activities should be classified under LPS 6. Draft Amendment 180 may affect the range of activities that are permissible on Lot 37. However, it will not impact on how a land use should be classified under LPS 6. The matters in cl 67 of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) inform the exercise of planning discretion; they do not inform how a land use should be classified.

Representation:

Counsel:

Applicants	:	Mr K Oliver (as agent)
Respondent	:	N/A

Solicitors:

Applicants	:	Kelvin Oliver Planning Consultant
Respondent	:	N/A

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
ALH Group Property Holdings Pty Ltd and Presiding Member of the Metro Central Joint Development Assessment Panel [2018] WASAT 63
Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141
City of Swan v Taylor [2005] WASCA 88
DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
G&G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel [2018] WASAT 9; (2018) 94 SR(WA) 36
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211
Optus Mobile Pty Ltd v City of Swan [2017] WASC 251
Pacific Seven Pty Ltd v Knox City Council (1993) 11 AATR 325
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR(WA) 312
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213
The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346
The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36
Van Der Feltz v City of Stirling [2009] WASC 142
West Australian Shalom Group Inc and City of Swan [2018] WASAT 36; (2018) 94 SR(WA) 276

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Craig Anthony Rando and Sam Rando (the applicants) seek development approval for the following activities: 'logbook servicing, servicing and adjustment front end braking, electronic diagnosis and reprogramming and sale and fitting of batteries' (the Proposed Use) on land zoned 'Mixed Business' under the City of Gosnells Local Planning Scheme No 6 (LPS 6 or Scheme).
The preliminary issue for determination is the proper characterisation (or classification) of the Proposed Use under LPS 6 which has been determined on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The land use classification informs the question as to whether the Proposed Use is capable of approval.
The City of Gosnells (City or respondent) considers the Proposed Use is properly classified as 'Motor Vehicle Repair' and is therefore prohibited.
The applicants, through their agent, submit inter alia that the Proposed Use falls within the 'Industry Service' land use and by reason of an existing approval, is already authorised. The applicants also submit, in the alternative, that the Proposed Use is a 'use not listed' and therefore under cl 3.4.2 of LPS 6 is discretionary if the City (and now the Tribunal) is satisfied that the Proposed Use would be consistent with the objectives of the Mixed Business Zone. The applicants further argue that the Proposed Use is an incidental use and that a draft amendment to LPS 6 is a seriously entertained planning proposal.
For the reasons that follow, the Proposed Use is properly classified as 'Motor Vehicle Repair' and is therefore currently prohibited under the Scheme.

Background

In the application for review (lodged on 26 October 2018) and pursuant to orders made by the Tribunal on 9 November 2018, the applicants and in turn the City have filed documents that inform the background to this matter including the application for approval and the City's consideration thereof.
The parties have also filed statements of issues, facts and contentions (SIFCs). The relevant background (or 'site history' for the purposes of cl 67(w) of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA)) (LPS Regulations) has been set out in some detail. The provisions contained in Sch 2 to the LPS Regulations will be referred to in these reasons as the deemed provisions.
In addressing the question of land use classification, it is not necessary to recite the site history in full. For present purposes the following summary (drawn largely from the parties' respective SIFCs) is relevant. The factual background to the review application is not contested.
The subject land is known as (house number) 1885, (Lot 37) Albany Highway, Maddington (Lot 37). Lot 37 is shown on Diagram 5357 (Vol 1175 Folio 492) and has an area of 1027m². The registered proprietor is Craig Anthony Rando.
Lot 37 is zoned Urban in the Metropolitan Region Scheme and Mixed Business in LPS 6.
In September 2015 the City approved a 'Showroom' on Lot 37. The building associated with that approval has been constructed but is yet to be occupied.
In March 2018 the applicants lodged an application to change the use of Lot 37 from Showroom to Industry Service. The application detailed that the proposed new use involved the sale and fitting of tyres for motor vehicles. Proposed changes to land uses are addressed in cl 3.3.4 of LPS 6.
The respondent characterised the sale and fitting of tyres as Industry Service which is a use capable of approval (as an 'A' use meaning that under cl 3.3.2 the use is not permitted unless approved by the City after giving special notice pursuant to cl 64 of the deemed provisions).
The proposed change in use was advertised from 23 April 2018 to 8 May 2018.
On 18 May 2018 the applicants lodged additional information seeking approval for the following land use (as described by the applicants):
Motor vehicle tyre centre for the sale and fitment of tyres, retreads, batteries and other similar products and for carrying out wheel alignments and front end and motor vehicle repairs related to wheel geometry together with scheduled log book maintenance such as oil and filter change, spark plug replacement, electric diagnosis updates etc. but no mechanical repairs such as engine overhaul, replacement/repairs, body repair or painting, gearbox, clutch and differential repair.
On 23 May 2018 the respondent advised the applicants that the proposed modified use (as set out in the additional information lodged with Council on 18 May 2018) was considered to be Motor Vehicle Repair for the purposes of LPS 6. Motor Vehicle Repair is an 'X' use in the Mixed Business Zone. An 'X' use is prohibited: cl 3.3.2.
On 29 May 2018 the applicants advised the respondent that the logbook servicing component of the proposed change in use would not be progressed. The proposed land use was then described (by the applicants) as:
Motor Vehicle Tyre centre for the sale and fitting of tyres/retreads and associated products including wheels, tubes etc. and carrying out wheel alignments, balancing and associated service for front end safety servicing relevant to such works. The sale of fitting of replacement batteries where required.
On 10 July 2018 the Council approved a change in use from Showroom to Industry Service (the Approved Change of Use). It is not in contest that the Approved Change of Use allows Lot 37 to be used for tyre sales and fitting.
The parties corresponded further in relation to the scope of activities approved by the Approved Change of Use. The City reiterated its position that logbook servicing was not approved and that such activities were considered to be Motor Vehicle Repair.
An application for review to the Tribunal was lodged but subsequently withdrawn on 31 August 2018 (DR 202 of 2018).
On 11 September 2018 the applicants lodged a new development application to 'extend and clarify the approved uses by including a range of uses considered acceptable as falling within the Industry Light classification'.
The application for development approval identified the proposed land use as 'vehicle servicing'. A report attached to the application identified the following intended uses:
(a)Industry Light;
(b)Sale and fitting of tyres;
(c)Alignment and balancing of wheels;
(d)Servicing and adjustment of front end and braking system;
(e)Electronic diagnosis and reprogramming where required;
(f)Logbook servicing; and
(g)Sale and fitting of batteries.
Items (d), (e), (f) and (g) are land uses that the City considers are not permitted under the Approved Change in Use. Those same items constitute the Proposed Use.
On 23 October 2018 the City refused the application on the basis that the Proposed Use constituted Motor Vehicle Repair. That refusal forms the basis of the review application to the Tribunal.
On 13 March 2018 the City initiated draft Amendment 180 to LPS 6 (Draft Amendment 180). Draft Amendment 180, if approved, will rezone land (including Lot 37) from Mixed Business to 'Highway Commercial'. Motor Vehicle Repair is a 'D' use in the Highway Commercial zone.
Draft Amendment 180 has been advertised and endorsed by the City (without modification) and is currently with the Western Australian Planning Commission for review pursuant to Pt 5 of the LPS Regulations. It is anticipated that Draft Amendment 180 will be presented to the Planning Minister for final approval in 2019.

Basis of the review application

The application for review was lodged pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). The application seeks:
(a)to set aside the City's decision to classify the Proposed Use as Motor Vehicle Repair; and
(b)approval of the Proposed Use.
In Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213 the Court of Appeal considered the relationship between s 252(1) and s 252(2) of the PD Act. Both provisions provide rights of review to the Tribunal but apply in different circumstances. The Court noted that s 252(2) only applies in limited situations and only where s 252(1) does not provide a right of review: at [58]. The Court identified three possible examples where s 252(2) may operate including where the responsible authority classifies a land use as prohibited. However, the Court recognised that the Tribunal has power to determine the proper characterisation of a proposed use in an application review of the refusal by the responsible authority to grant development approval: at [57] citing The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346 at [30] [53].
In West Australian Shalom Group Inc and City of Swan [2018] WASAT 36; (2018) 94 SR(WA) 276 (Shalom Group) his Honour Judge Parry found that where an application seeks to both challenge the classification of a proposed use as prohibited and to also obtain approval for that land use, s 252(1) of the PD Act is properly engaged: at [20].
Judge Parry's analysis in Shalom Group is consistent with the scheme of Pt 14 of the PD Act because if the Tribunal on review determines a land use to be discretionary (or even permitted), the question then becomes should the proposed development be approved in the exercise of discretion? The question of whether a proposed development should be approved falls squarely within s 252(1) of the PD Act.
In this instance the application for review not only seeks to review the classification of the Proposed Use but also requests the Tribunal approve the Proposed Use. It follows that, in my view, the application was properly commenced under s 252(1) of the PD Act.
I will now address LPS 6 and then the general principles that apply to the construction of planning schemes before turning to the parties' respective arguments on the question of classification before setting out my analysis and decision.

LPS 6

LPS 6 is a local planning scheme prepared under the former Town Planning and Development Act 1928 (WA) and continued pursuant to s 68(1)(a) of the PD Act. LPS 6 commenced on 15 February 2002 and has force and effect as if it were enacted by the PD Act: s 68(1)(b) of the PD Act.
Pursuant to s 256 of the PD Act the Planning Minister has prepared regulations for local planning schemes including the deemed provisions. By reason of s 257B(2) of the PD Act (together with reg 8(1)(c) and reg 10(4) of the LPS Regulations), the deemed provisions have effect and may be enforced as part of each local planning scheme. The deemed provisions form part of LPS 6.
Clause 1.5 sets out the purpose of LPS 6. The purpose includes controlling and guiding land use and development: cl 1.5(d). The aims of LPS 6 are inter alia to ensure the orderly and proper use and development of land within the District: cl 1.6(d) of LPS 6.
Clause 3.1 of LPS 6 classifies the Scheme Area into the zones as shown on the Scheme Map.
Clause 3.2 of LPS 6 provides that the objective of the Mixed Business Zone is:
To provide for a variety of commercial activities including showrooms and other forms of bulk retailing/display in strategically located areas of the City.
Clause 3.3.1 of LPS 6 provides that the Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme Area in the various zones.
Clause 3.3.2 of LPS 6 outlines four categories of land use permissibility. A 'P' use means that the use is permitted provided it complies with the relevant standards and requirements of the Scheme. A 'D' or an 'A' use indicates that the use is discretionary, meaning that the use is not permitted unless the responsible authority exercises discretion to allow the use. In the case of 'A' uses, discretion can only be exercised after notice is given pursuant to cl 64 of the deemed provisions. As stated, 'X' uses are not permitted.
Clause 3.4.1 of LPS 6 provides that 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.
Clause 3.4.2 of LPS 6 states that where a person proposes a use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity or any other use category the responsible authority may either determine:
(a)that the proposed use is consistent with the objectives of the particular zone and is therefore permitted;
(b)that the proposed use may be consistent with the objectives of the particular zone and that the proposal should be advertised before being considered for approval; or
(c)that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
For present purposes, the Zoning Table indicates that Motor Vehicle Repair is an 'X' use in the Mixed Business Zone. Motor Vehicle Repair is defined (in Sch 1 to LPS 6) to mean:
premises used for or in connection with
(a)electrical and mechanical repairs, or overhauls, to vehicles; or
(b)repairs to tyres,
but does not include premises used for recapping and retreading of tyres, panel beating, spray painting or chassis reshaping[.]
The use class Industry Service is a 'D' use in the Mixed Business Zone. Industry Service is defined to mean:
(a)an industry light carried out from premises which may have a retail shop front and from which goods manufactured on the premises may be sold; or
(b)premises having a retail shop front and used as depot for receiving goods to be serviced[.]
Industry Light (referred to in the definition of Industry Service) is defined to mean an industry:
(a)in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality;
(b)the establishment of conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services[.]
Later in these reasons I will refer to the definition of Service Station which means premises used for:
(a)the retail sale of petroleum products, motor vehicle accessories and goods of an incidental/convenience retail nature; and
(b)the carrying out of greasing, tyre repairs and minor mechanical repairs to motor vehicles,
but does not include premises used for a transport depot, panel beating, spray painting, major repairs or wrecking[.]

Part 7 of the deemed provisions requires 'development' to be approved. Clause 60 provides that, unless an exemption set out in cl 61 applies, a person shall not carry out any works on, or use, land in the Scheme Area unless development approval has been obtained. The Proposed Use does not fall within any relevant exemption under cl 61 of the deemed provisions. Clause 3.3.4a) of LPS 6 gives the City the power to approve a change in use.
Part 8 of the deemed provisions deals with applications for development approval and addresses the making of development applications, the provision of relevant material and, where applicable, advertising for public submissions.
Part 9 of the deemed provisions outlines the procedure for dealing with development applications. In particular cl 67 sets out the matters to be considered by the City, and now the Tribunal. The matters identified in cl 67 are relevant to the exercise of planning discretion in relation to whether (or not) a development should be approved.
Pursuant to cl 68(2) of the deemed provisions the local government may determine an application by way of an approval (conditional or otherwise) or a refusal. A right of review is provided by cl 76 of the deemed provisions.
However, before a development application can be assessed under Pt 8 and Pt 9 of the deemed provisions, the uses or activities proposed must be classified for the purposes of cl 3.4.1. The classification or characterisation of the Proposed Use is the ultimate issue that I must determine in these reasons.

Interpretation of LPS 6

LPS 6 is a 'written law' for the purposes of the Interpretation Act 1984 (WA) (Interpretation Act). By reason of s 18 of the Interpretation Act a construction that would promote the purpose or object underlying the written law (whether stated in the written law or not) should be preferred to a construction that would not promote that purpose or object.
Section 18 of the Interpretation Act is not directed to a construction which 'will best achieve' the object of the legislation, but is rather directed to a choice between a construction that would promote the underlying objects or purposes of the legislation, and one which would not: Optus Mobile Pty Ltd v City of Swan [2017] WASC 251 at [37].
There are many authorities on the modern approach to statutory construction: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]; The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36 at [119] [131] (Buss JA), [272] [274] (Murphy JA); City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 at [47].
The Court of Appeal, in the context of the PD Act, has reiterated the importance of the text of statutory instruments in resolving questions of statutory construction: Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38 at [77] [86] (Australian Unity). It is unnecessary to restate those paragraphs, but I identify the following principles in so far as they are relevant to the classification of the Proposed Use. Case citations are not included.
(a)The task of statutory construction must begin (and end) with a consideration of the text itself. Where the text is clear, historical considerations and extrinsic materials cannot displace that clear meaning. The language chosen by the legislature is the surest guide to legislative intention. The context, which includes the purpose and policy of the provision and the mischief to which it is directed, may inform that meaning.
(b)The focus on the statutory text is an aspect of the rule of law so as to recognise and preserve the role of the legislature.
(c)Focusing on the statutory text facilitates comprehension of the meaning of the legislation by persons whose conduct it regulates.
(d)The principles of statutory construction are no less important when the relevant legislative instrument is a planning scheme. On this the point the Court noted that (Australian Unity at [82]):
[T]he terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies. Placing a counterintuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.
(e)The text should not be read in a manner divorced from its context and purpose. That context and purpose may inform the meaning of the language chosen by Parliament. The meaning of the legislation must emerge from the statutory text, understood in context and having regard to the statutory purpose being progressed.
(f)In construing a planning scheme, it is also relevant that schemes are not usually drafted by Parliamentary Counsel and are often expressed in terms which lack the precision of an Act of Parliament. Planning schemes should be construed broadly rather than pedantically and with a sensible practical approach. Planning schemes should not be applied narrowly nor pedantically.
(g)Legislative purpose is to be ascertained from what the legislation says, rather than any assumption about a desired or desirable reach or operation of the relevant provisions. Discerning legislative purpose is an objective exercise of statutory construction and is not a quest to ascertain what those who promoted or passed the legislation may have had in mind in when it was enacted. Nor it is appropriate for, in this instance, the Tribunal to construct its own idea of a desirable policy and impute that into the legislature to then be characterised as a statutory purpose.
In ALH Group Property Holdings Pty Ltd and Presiding Member of the Metro Central Joint Development Assessment Panel [2018] WASAT63 (ALH) the Tribunal referred to characterisation of uses where there are competing land use classifications as being, at times, akin to trying to resolve a 'Gordian knot': ALH at [57] and [70].
However, the Tribunal noted that such 'Gordian knot[s]' are resolved by clauses in Western Australian local planning schemes which require a specific land use to be preferred over the more general and that once a land use is defined, it is deemed to be excluded from other more general classifications.
In this instance, cl 3.4.1 of LPS 6 reads:
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.
In ALH the Tribunal accepted that the effect of such a provision is that '[put simply], where a land use falls within two definitions, the more specific definition is to prevail over the more general': ALH at [58].

Parties' contentions on the question of classification

Applicants' submissions

The applicants' principal submissions on the question of classification centre on an argument that vehicle servicing (or 'logbook servicing') is an activity that does not fall within the definition of Motor Vehicle Repair in LPS 6. Whilst the Proposed Use encompasses a range of activities the focus of the applicants' submissions is on logbook servicing.
The gravamen of the applicants' submission is that the 'servicing' of a motor vehicle does not involve the 'repair' of a motor vehicle. The applicants submit that logbook servicing, works on braking systems, electronic diagnosis and reprogramming and the sale and fitting of batteries are not 'repairs' but should instead be construed and classified as activities relating to 'checking', 'reporting on' and where necessary 'replacing' motor vehicle components.
The applicants' SIFC attached logbook servicing checklists from the Royal Automobile Club WA (RAC) and two service stations: Attachment A to the applicants' SIFC. The precise source of the RAC material is not identified; nor are the two service stations.
The purported range of activities undertaken as part of a vehicle service are listed. It is not necessary for these various activities to be set out. I accept that on that list the words 'repair' or 'overhaul' do not appear. The word 'check' appears often. For example, 'brake check' and 'electrical lighting check'. The checklists do not address what happens when a problem is found with a part during a vehicle service.
The applicants submit that the purpose of a logbook service is to check for faults and report them to the owner so that they can take the vehicle to an appropriate repairer or specialist or mechanic for repairs.
The applicants also submit that because the sale and fitting of tyres has been approved (in the Approved Change of Use application), the sale and replacement of a battery is no different. The sale and fitting of tyres will involve hoists, 'rattle guns' and other specialist equipment and such works were not considered by the City to constitute 'repairs'.
Although not entirely clear, the applicants' submissions seem to be put on two bases. Firstly, the Proposed Use falls within the Service Industry definition and therefore falls within the scope of the Approved Change of Use. Secondly, and necessarily in the alternative, logbook servicing and battery sales and fitting do not constitute Motor Vehicle Repair and therefore should be regarded as a use not listed for the purposes of cl 3.4.2 of LPS 6 such that discretion is available.
The applicants' SIFC also raises the question as to whether the Proposed Use could be considered incidental to the uses already approved under the Approved Change of Use. The applicants submit that the only vehicles that would be serviced would be those for which new tyres had been purchased (and would comprise less than 15% of the total work output).
Finally, Attachment B to the applicants' SIFC includes an argument that Draft Amendment 180 is to be regarded as a seriously entertained planning proposal.

Respondent's submissions

The respondent's SIFC (dated 5 December 2018) submits that:
The proposed activities of servicing and adjustment of front end and braking systems, the electronic diagnosis and reprogramming of vehicles, logbook servicing and the sales [sic] and fitting of batteries more closely aligns with the definition of Motor Vehicle Repair.
The City notes that pursuant to cl 3.4.1 of LPS 6, a specific use identified in the Zoning Table is deemed to be excluded from the general terms used to describe any other use.
The respondent submits that the expanded activities (the Proposed Use) are not considered to be compatible with the approved 'Industry Service' definition as they include elements of electrical and mechanical repairs to vehicles.
The respondent's submissions also draw a distinction between the Industry Service definition (contended for by the applicants) and Motor Vehicle Repair. The respondent submits that the definition of Industry Service allows for an Industry Light use to be carried out from premises which may have a retail shop front and from which goods manufactured on the premises may be sold. Furthermore, Industry Service also allows for the premises to be used as a depot for receiving goods to be serviced. In contrast, the definition of Motor Vehicle Repair distinctly specifies a motor vehicle as being the subject good.
Finally, the respondent also refers to the definitions of 'repair' and 'service' set out in the legislative regime established by the Motor Vehicle Repairers Act 2003 (WA), the Motor Vehicle Repairers Regulations 2007 (WA) and the Motor Vehicle Repairers Amendment Regulations 2008 (WA) and makes submissions on whether each of the activities that comprise the Proposed Use are better characterised as a 'repair' or a 'service'.

Issue for determination

The ultimate issue is, what is the appropriate land use classification of the Proposed Use under LPS 6? In determining that issue, I will address each of the parties' contentions as to the appropriate classification.
I will also consider whether the Proposed Use:
(a)can reasonably be determined as falling within the type, class or genus of activity of any other use category for the purposes of cl 3.4.2 of LPS 6;
(b)is incidental or ancillary to the Approved Change in Use; and
(c)should be classified having regard to Draft Amendment 180.

Analysis and disposition

The scope of the Tribunal's discretion

In these proceedings, the Tribunal only has jurisdiction to review the City's decision to refuse the Proposed Use.
While the precise basis on which the City granted approval to the tyre sales and fitting use as an Industry Service (the Approved Change of Use) is not altogether clear to me, that decision made on 10 July 2018 is not under review by the Tribunal.

The proper classification of the Proposed Use

For the following four reasons (all of which overlap to some degree), I am satisfied that the Proposed Use falls within the definition of Motor Vehicle Repair for the purposes of LPS 6 and is therefore currently prohibited on Lot 37.
Firstly, applying LPS 6 in a sensible and practical manner, I am satisfied that the Proposed Use falls within the terms of the definition of Motor Vehicle Repair. The definition of Motor Vehicle Repair refers to premises being 'used for or in connection with … electrical and mechanical repairs … to vehicles'. The Proposed Use comprises activities which involve the electrical and/or mechanical repair of motor vehicles.
The land use Motor Vehicle Repair is specifically directed towards electrical or mechanical repairs to motor vehicles. On the other hand, the Industry Service definition is more general in its application and refers to any 'goods' that may be serviced. By reason of cl 3.4.1, a specific land use is deemed to be excluded from the general terms used to describe any other use. This means that even if I considered that the Proposed Use was capable of being an Industry Service (which I do not) then by reason of cl 3.4.1 the more specific land use shall apply.
Secondly, the applicants seek to draw out a distinction of no consequence in a land use planning sense. I adopt the Court of Appeal's comments in Australian Unity that planning schemes are 'regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies'. Accordingly, in my view, the Tribunal should be slow to classify land uses in the narrow and strict manner invited by the applicants as it will 'reduce the capacity of [planners, government officials, landowners and prospective landowners] to comprehend its meaning': Australian Unity at [82].
In classifying land uses, the activities that comprise the particular use are key: ALH at [64].
I do not consider that it is appropriate to attempt to draw, for the purposes of land use classification, a distinction between the 'servicing' and 'repair' of motor vehicles. Whilst a planning scheme has legal effect and the ordinary principles of construction apply, it is unrealistic to expect a planning scheme to be drafted with the precision which the applicants' submissions invite. It is accepted that planning schemes are largely the work of town planners: Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR(WA) 312 at [21].
It is also accepted that a planning scheme should be read and applied in a practical and common sense manner and construed broadly. To suggest that a vehicle mechanic that replaces a faulty, worn or expired part is 'servicing' a vehicle but not 'repairing' it is to seek to draw out a distinction without a difference in terms of land use.
Further, I do not accept the applicants' argument that servicing and the replacement of parts does not constitute the 'repair' of a motor vehicle. The fact that particular vehicle components may be replaced as part of a vehicle service is not to the point. The various activities that comprise the Proposed Use are focused on the motor vehicle itself, not the particular components of the vehicle. In my view, even where a component or part is replaced, the motor vehicle itself is still being repaired. The fact that some works on motor vehicles may be described as 'servicing' and others 'repairs', does not lead to a conclusion that separate land use classifications should apply to these activities.
Thirdly, the ordinary meaning of the verb 'repair' includes both the fixing and the replacement of parts.
The general rule is that words in a statute should be taken to have been used in their ordinary meaning: Van Der Feltz v City of Stirling [2009] WASC 142 at [90].
The applicants' submissions refer to the definition of 'repair' in the Collins Dictionary as being to 'restore (something damaged or broken) to a good condition or working order'. The applicants' submissions do not address the meaning of 'restore' in the context of the definition of 'repair'. The (online) Collins Dictionary (collinsdictionary.com) defines 'restore' to mean to 'return (something, esp a work of art or building) to an original or former condition'.
There is nothing in these definitions to suggest that the word 'repair' excludes the replacement of parts.
Furthermore, the word 'repair' is defined in the Australian Oxford Dictionary (2^nd Edition, 2004, page 1092) to mean:
1.Restore to good condition after damage or wear
2.Renovate or mend by replacing or fixing parts or by compensating for loss or exhaustion.
(Tribunal emphasis added)
I consider that where a vehicle is serviced the ultimate process is to ensure that the vehicle is restored to, or maintained at, a roadworthy standard. The vehicle servicing process can involve a range of activities some of which involve the mending, adjustment or replacement of vehicle components. That process taken as a whole is properly described as motor vehicle repairs regardless of whether a particular component or part of the vehicle is replaced, adjusted or repaired.
Fourthly, the applicants' submissions proceed from a premise that the absence of an express reference to 'vehicle servicing' in the definition of Motor Vehicle Repair is significant in how the Proposed Use should be classified. I do not agree. In my view, it is not of any moment that the definition of Motor Vehicle Repair does not expressly refer to vehicle servicing or the other activities that comprise the Proposed Use.
By way of example, the definition of Service Station in LPS 6 does not expressly refer to 'vehicle servicing'. However, I consider that vehicle servicing falls within the scope of 'minor mechanical repairs' and would therefore be a permitted activity at a Service Station. Likewise, the activities that comprise the Proposed Use fall within the definition of Motor Vehicle Repair. This is because, applying LPS 6 in a sensible and practical manner, the activities that comprise the Proposed Use are properly regarded as 'repairs' to motor vehicles.
I consider that the construction I favour is consistent with the underlying purpose of LPS 6 which includes controlling land use and development: cl 1.5(d). If the applicants' construction of LPS 6 were accepted, the City's capacity to effectively manage and control these types of activities within its District would be significantly diminished. The applicants' proposed construction demands a level of precision in the drafting of planning schemes that is unrealistic given that schemes are largely the work of town planners. Planning schemes are to be read and applied broadly and not pedantically. The definition of Motor Vehicle Repair in LPS 6 includes activities relating to the servicing of motor vehicles and the other activities that comprise the Proposed Use.
I do not accept the applicants' argument set out at [64] of these reasons that the purpose of a logbook service is for a mechanic to identify any issues with the vehicle that require repairs and for the customer to then be sent to a different specialist for those repairs to be undertaken. There is simply no evidence to support that submission.

Ultimately, it is my view that vehicle servicing and the other proposed activities that comprise the Proposed Use (being servicing and adjustment of front end braking, electronic diagnosis and reprogramming and the sale and fitting of batteries) fall within the scope of 'Motor Vehicle Repair' because they will result in the 'premises [being] used for or in connection with (a) electrical and mechanical repairs, or overhauls, to vehicles, or (b) repairs to tyres'.

Why the Proposed Use is not an Industry Service

Having found that the Proposed Use is properly classified as Motor Vehicle Repair, by force of cl 3.4.1 of LPS 6, it cannot then be classified within the more general Industry Service land use.
However in any event, I do not accept that the Proposed Use falls within the definition of Industry Service. I have set out the relevant definition at [44] of these reasons.
Both limbs of the definition of Industry Service refer to an industrial activity and an associated retail shop front. In both limbs of the definition there is a relationship or connection between the industrial activities and the retail shop front. In the case of limb (a), the definition allows the goods manufactured from the Industry Light process to be sold on the premises. In the case of limb (b), the definition allows for premises to be used as a service depot with an associated retail shop front.
The Approved Change of Use allows a person to select and purchase new tyres and have them fitted on the premises. There is a direct relationship between the retail sale of tyres and their subsequent fitting on the premises. However, the proposal seeks to extend the scope of uses to include activities that have no relationship with the retail sale of tyres. The activities that comprise the Proposed Use do not arise from, or have any relevant connection with, the retail sale of tyres. In my view, the Proposed Use is not an Industry Service.

The application of cl 3.4.2 of LPS 6

Having found that the Proposed Use is properly classified as Motor Vehicle Repair, it is not strictly necessary to address cl 3.4.2 of LPS 6. However, for completeness I will set out my summary findings.
If I were not satisfied that the Proposed Use was properly classified as Motor Vehicle Repair I would nevertheless have found that it is within the same 'type, class or genus of' Motor Vehicle Repair pursuant to cl 3.4.2 of LPS 6 and therefore prohibited.
This is because I find there to be no tangible distinction, in land use terms, between vehicle servicing and other activities that comprise the Proposed Use, and Motor Vehicle Repair as that use is defined in LPS 6. All the relevant activities that comprise the Proposed Use relate to work on a motor vehicle in order to ensure that the vehicle is maintained, or returned, to a roadworthy standard.
Contrary to the applicants' submissions, works relating to the fitting and alignment of tyres are different from the general servicing of motor vehicles, brake works and the other activities that encompass the Proposed Use.
I consider the Proposed Use to be more industrial in nature than the fitting and alignment of tyres which have been purchased from a retail shop front.
Applying cl 3.4.2 of LPS 6, I find that the Proposed Use is within the same genus as Motor Vehicle Repair.

The Proposed Use is not incidental or ancillary to the Approved Change in Use

The Proposed Use is not an ancillary or incidental part of the Approved Change in Use. The Proposed Use is, in fact, a separate and independent land use which requires development approval. My reasons are as follows.
The applicants' submission on the question of whether the Proposed Use is an incidental use was that the only vehicles that would be serviced would be those for which new tyres had been purchased (and would comprise less than 15% 'of the total work output'). In addressing that submission, I make the following two comments. First, the applicants provided no evidence or any other materials in support of these contentions. Second, the submission is misconceived. Even though the percentage of 'total work output' for vehicle servicing (and the other activities that comprise the Proposed Use) may be a relatively minor portion of the overall works, it does not overcome the fundamental obstacle that the activities in question are not ancillary or incidental to the purchase and fitting of new tyres.
Clause 3.3.4d) of LPS 6 authorises a 'change to an incidental use that does not change the predominant use of land' without the need for a development approval. Schedule 1 to LPS 6 includes defined terms and expressions. The term 'incidental use' is defined to mean 'a use of premises which is ancillary and subordinate to the predominate use'. A 'predominant use' means 'the primary use of the premises to which all other uses carried out on the premises are subordinate, incidental or ancillary'.
In G&G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel [2018] WASAT 9; (2018) 94 SR(WA) 36 (G&G Corp), his Honour Judge Parry was dealing with almost identical scheme clauses in relation to incidental uses to those set out in [109] above.
His Honour found that the effect of such provisions are to give statutory expression and force to the established planning law concept relating to the treatment of incidental uses. That concept is that an incidental, ancillary or subordinate activity to a dominant land use is not of itself, a land use requiring development approval, but is instead considered to be part and parcel of the primary use: G&G Corp at [17] citing the observations of (then) Member Helen Gibson in Pacific Seven Pty Ltd v Knox City Council (1993) 11 AATR 325 (Pacific Seven).
In G&G Corp (at [17]) and again in Shalom Group (at [90]) his Honour Judge Parry, identified, consistent with the observations in Pacific Seven that references to incidental and subordinate uses are often incorrect. This is because incidental and ancillary activities are an aspect of the primary use (or to employ the language from Pacific Seven, they are 'part and parcel' of the primary use). Ancillary or incidental activities are not separate land uses requiring a separate approval: Foodbarn Pty Ltd v SolicitorGeneral (1975) 32 LGRA 157 at 161 (Glass JA, Hutley and Samuels JJA agreeing).
However, there needs to be some kind of relationship between the dominate use and an incidental use. That is, the incidental use must form part of, or naturally attach to, the dominant use. In City of Swan v Taylor [2005] WASCA 88, her Honour Johnson J found at [67] that the determination of whether a use was incidental:
… requires the identification of a predominant use and a determination of whether the proposed use is consequent on such a use or naturally attaching, appertaining or relating to such a use. In my view, there must be some relationship or connection between the two uses for one to be incidental to the other[.]
A development approval is taken to include all the incidental uses that are 'part and parcel' of the approved use. For example, a residential land use includes the ability to garage a car or a boat as well as other activities that are incidental to human habitation: Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 at 216 (Gibbs CJ, Murphy Wilson and Brennan JJ agreeing) (Lizzio). However, even where a use may be said to be incidental, questions of fact and degree may arise. For example, in Lizzio the regular sale of flowers from a dwelling house was found to not be incidental to the use of the land for residential purposes.
In this instance, the Proposed Use is not merely incidental or ancillary to the approved tyre sales and fitting use (approved as Industry Service). The respondent has already accepted, correctly in my view, that conducting wheel alignments would be an incidental part of the tyre fitting process and as such has a further approval is not required for that activity. That is, wheel alignments may be regarded as 'part and parcel' of a tyre sales and fitting land use.
However, the Proposed Use is not 'part and parcel' of a tyre sales and fitting land use. Such activities relate to motor vehicle works which are unrelated to the fitting and alignment of tyres. The Proposed Use does not naturally attach to or form part of the approved tyre sales and fitting use. The activities that comprise the Proposed Use are a separate and independent land use.

Draft Amendment 180

Draft Amendment 180 falls within the scope of cl 67(b) of the deemed provisions. This is because Draft Amendment 180 has been advertised pursuant to Pt 5 of the LPS Regulations.
I am required to give due regard to the relevant matters identified in cl 67 of the deemed provisions. In the context of the PD Act, 'due regard' has been interpreted to mean that I must give 'proper, genuine and realistic' consideration to such matters: City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141 at [46].
If Draft Amendment 180 is approved by the Planning Minister in its current form, Lot 37 will be rezoned to Highway Commercial. The effect of that rezoning will mean that Motor Vehicle Repair will become a use that is capable of approval.
Clause 67(b) of the deemed provisions requires the Tribunal to consider 'any' proposed local planning scheme amendment. However, Draft Amendment 180 does not affect how the Proposed Use should be classified for the purposes of planning assessment.
Clause 67 of the deemed provisions, including cl 67(b), are matters that inform the exercise of planning discretion. They do not inform questions of land use classification.
Previous Tribunal decisions on land use classification have declined to give effect to draft scheme amendments for the purposes of land use classification: see for example DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104 at [51]. The Tribunal found that a land use classification is essentially a question of statutory construction going to jurisdiction. I agree.
The cl 67 matters are engaged only once a land use has been classified and found to be capable of being approved in the exercise of discretion. Draft Amendment 180 is not relevant to the classification of the Proposed Use.

Conclusion

For the purposes of order 1 made on 9 November 2018 the Tribunal finds that the proper characterisation of the Proposed Use (comprising logbook servicing, servicing and adjustment of front end braking, electronic diagnosis and reprogramming and sale and fitting of batteries) under LPS 6 is 'Motor Vehicle Repair'.
The matter should be listed for further directions to discuss the future programming of this matter.

Orders

1.The Proposed Use (being logbook servicing, servicing and adjustment of front end braking, electronic diagnosis and reprogramming; sale and fitting of batteries) is classified as Motor Vehicle Repair under the City of Gosnells Local Planning Scheme No 6.
2.The matter is listed for further directions at a time to be advised.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR S Willey, MEMBER
26 FEBRUARY 2019