Re Shire of Carnarvon; Ex parte Humphrey
[2005] WASCA 182
•23 SEPTEMBER 2005
RE SHIRE OF CARNARVON; EX PARTE HUMPHREY & ANOR [2005] WASCA 182
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 182 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CIV:1090/2004 | 1 JUNE 2005 | |
| Coram: | MCLURE JA PULLIN JA LE MIERE AJA | 23/09/05 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged Application for injunction dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN HUMPHREY KAREN TRACEY HUMPHREY THE SHIRE OF CARNARVON CALTEX AUSTRALIA PETROLEUM PTY LTD WAYNE JAMES ROWE LYNOLE KAYE ROWE |
Catchwords: | Administrative law Validity of local government planning approval Whether development inconsistent with zoning Whether a nonconforming use Whether a change of use Whether Shire took into account relevant considerations Whether grant of approval unreasonable Turns on own facts |
Legislation: | Environmental Protection (Noise) Regulations 1997 (WA), reg 7, reg 8, reg 17, Sch 3 Environmental Protection Act 1986 (WA), s 3(3), s 49(4), s 51 |
Case References: | Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 Carcione Nominees Pty Ltd v Western Australian Planning Commission [2005] WASCA 56 City of Mitcham v Fusco (2002) 124 LGERA 196 Dorrestijn v South Australian Planning Commission (1984) 56 ALR 295 Franconi v Shire of Perth (1964) 11 LGRA 380 Khan v Minister for Immigration, Local Government & Ethnic Affairs (1987) 14 ALD 291 King v Lewis & Maclean Shire Council (1991) 74 LGRA 362 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mobil Oil Australia Ltd v Ku-Ring-Gai Municipal Council (1990) 70 LGRA 419 Norman v Gosford Shire Council (1975) 132 CLR 83 Prestige Car Sales Pty Ltd v Walkerville Town Corporation (1979) 20 SASR 514 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Royal Agricultural Society (New South Wales) v Sydney City Council (1987) 61 LGRA 305 Shire of Perth v O'Keefe (1964) 110 CLR 529 South Sydney City Council v Houlakis (1996) 90 LGERA 399 Williams v Minister for the Environment & Heritage (2003) 74 ALD 124 Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission [2003] TASSC 142 Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 Central Queensland Speleological Society Inc v Central Queensland Cement Pty (No 1) [1989] 2 Qd R 512 City of Nunawading v Harrington [1985] VR 641 City of Parramatta v Brickworks Ltd (1972) 128 CLR 1 Craig v South Australia (1995) 184 CLR 163 Day v Pinglen Pty Ltd (1981) 148 CLR 289 De Silva v Ruddock, unreported; FCA (Merkel J); BC9800308; 19 February 1998 Duke of Westminster v Birrane [1995] 3 All ER 416 Eaton & Sons Pty Ltd v Shire of Warringah (1972) 129 CLR 270 Ex parte Waldron [1986] QC 824 Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130 Kogarah Municipal Council v Johnstone (1979) 41 LGRA 366 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 71 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 R v Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] QB 720 Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549 Re Metropolitan Health Service Board; Ex parte Reed [2003] WASCA 123 Re Smith; Ex parte Rundle (1991) 5 WAR 295 Robertson v Western Australian Planning Commission [2000] WATPAT 8 Scotts Provision Stores Pty Ltd v Sydney City Council (No 2) (1967) 13 LGRA 271 Tooth & Co Ltd v City of Parramatta (1955) 97 CLR 492 University of Western Australia v City of Subiaco (1980) 52 LGRA 360 Weinel v Judge Parsons (1994) 62 SASR 501 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE SHIRE OF CARNARVON; EX PARTE HUMPHREY & ANOR [2005] WASCA 182 CORAM : MCLURE JA
- PULLIN JA
LE MIERE AJA
JOHN HUMPHREY
KAREN TRACEY HUMPHREY
Applicants
AND
THE SHIRE OF CARNARVON
First Respondent
CALTEX AUSTRALIA PETROLEUM PTY LTD
Second Respondent
WAYNE JAMES ROWE
LYNOLE KAYE ROWE
Third Respondent
(Page 2)
Catchwords:
Administrative law - Validity of local government planning approval - Whether development inconsistent with zoning - Whether a nonconforming use - Whether a change of use - Whether Shire took into account relevant considerations - Whether grant of approval unreasonable - Turns on own facts
Legislation:
Environmental Protection (Noise) Regulations 1997 (WA), reg 7, reg 8, reg 17, Sch 3
Environmental Protection Act 1986 (WA), s 3(3), s 49(4), s 51
Result:
Order nisi discharged
Application for injunction dismissed
Category: B
Representation:
Counsel:
Applicants : Mr P L Wittkuhn
First Respondent : No appearance
Second Respondent : Mr D H Solomon
Third Respondent : No appearance
Solicitors:
Applicants : McLeods
First Respondent : No appearance
Second Respondent : Solomon Brothers
Third Respondent : No appearance
Case(s) referred to in judgment(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
(Page 3)
Carcione Nominees Pty Ltd v Western Australian Planning Commission [2005] WASCA 56
City of Mitcham v Fusco (2002) 124 LGERA 196
Dorrestijn v South Australian Planning Commission (1984) 56 ALR 295
Franconi v Shire of Perth (1964) 11 LGRA 380
Khan v Minister for Immigration, Local Government & Ethnic Affairs (1987) 14 ALD 291
King v Lewis & Maclean Shire Council (1991) 74 LGRA 362
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Mobil Oil Australia Ltd v Ku-Ring-Gai Municipal Council (1990) 70 LGRA 419
Norman v Gosford Shire Council (1975) 132 CLR 83
Prestige Car Sales Pty Ltd v Walkerville Town Corporation (1979) 20 SASR 514
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Royal Agricultural Society (New South Wales) v Sydney City Council (1987) 61 LGRA 305
Shire of Perth v O'Keefe (1964) 110 CLR 529
South Sydney City Council v Houlakis (1996) 90 LGERA 399
Williams v Minister for the Environment & Heritage (2003) 74 ALD 124
Case(s) also cited:
Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29
Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247
Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission [2003] TASSC 142
Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
Central Queensland Speleological Society Inc v Central Queensland Cement Pty (No 1) [1989] 2 Qd R 512
City of Nunawading v Harrington [1985] VR 641
City of Parramatta v Brickworks Ltd (1972) 128 CLR 1
Craig v South Australia (1995) 184 CLR 163
Day v Pinglen Pty Ltd (1981) 148 CLR 289
De Silva v Ruddock, unreported; FCA (Merkel J); BC9800308; 19 February 1998
Duke of Westminster v Birrane [1995] 3 All ER 416
Eaton & Sons Pty Ltd v Shire of Warringah (1972) 129 CLR 270
(Page 4)
Ex parte Waldron [1986] QC 824
Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130
Kogarah Municipal Council v Johnstone (1979) 41 LGRA 366
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 71
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
R v Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] QB 720
Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549
Re Metropolitan Health Service Board; Ex parte Reed [2003] WASCA 123
Re Smith; Ex parte Rundle (1991) 5 WAR 295
Robertson v Western Australian Planning Commission [2000] WATPAT 8
Scotts Provision Stores Pty Ltd v Sydney City Council (No 2) (1967) 13 LGRA 271
Tooth & Co Ltd v City of Parramatta (1955) 97 CLR 492
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
Weinel v Judge Parsons (1994) 62 SASR 501
(Page 5)
1 MCLURE JA: This is the return of an order nisi for a writ of certiorari to quash the decision of the first respondent, the Shire of Carnarvon ("Shire"), made in July 2003 to grant planning approval to Australian Petroleum Pty Ltd in respect of a service station development on the corner of Robinson Street and North West Coastal Highway, Kingsford ("Planning Approval"). The development was to hot mix the rear of the land on which the service station was situated and to install a diesel fuel pump in that area.
2 The applicants, John and Karen Humphrey, own land adjacent to the service station from which they operate the Plantation Caravan Park. They purchased that business in 1997. Only the second respondent, Caltex Australia Petroleum Pty Ltd ("Caltex"), appeared at the hearing to oppose the application. Caltex is, and was at the material time, the owner of the land the subject of the Planning Approval. Part of the land is zoned "Intensive Horticulture" under the current Town Planning Scheme.
3 The grounds of challenge to the Planning Approval are as follows:
"1.1 Part of land not appropriately zoned for the use
1.1.1 Part of the land the subject of the Planning Approval, namely that portion formerly known as Part Lot 13 ('the Extension Land'), is zoned 'Intensive Horticulture'.
1.1.2 The Planning Approval purports to permit the Extension Land to be used as an integral part of a 'Service Station' alternatively 'Roadhouse' use. The use classes 'Service Station' and 'Roadhouse' are not permitted uses on land zoned 'Intensive Horticulture' under the Shire's Town Planning Scheme No 10.
1.1.3 The development purportedly approved by the Planning Approval cannot function without the Extension Land being used as an integral part of the operation.
1.1.4 The purported approval of the use of the Extension Land is accordingly not severable from the rest of the Planning Approval.
(Page 6)
- 1.1.5 Accordingly the Planning Approval is beyond the power of the Shire to grant.
- 1.2 Breach of Noise Regulations
1.2.1 The Shire had before it apparently cogent expert evidence that the development sought to be approved by the Planning Approval would necessarily and unavoidably involve breaches of the Environmental Protection (Noise) Regulations 1997 ('the Noise Regulations') when road trains pass in close proximity to the boundary with the Applicants' caravan park.
1.2.2 The granting of the Planning Approval in the circumstances was a decision so unreasonable that no reasonable planning authority could have made it.
1.2.3 Alternatively, in granting the Planning Approval, the Shire failed to take into account a relevant consideration, namely the evidence referred to in paragraph 1.2.1 above.
1.3 Road Safety
1.3.1 The proposed development involves, as an integral part of the operation, the egress of road trains in such a manner that, when turning left onto the North West Coastal Highway, they must drive along the wrong side of the North West Coastal Highway for a significant distance before being able to move to the correct side of the road.
1.3.2 This is an unavoidable consequence of the manner in which the subject site is configured, such configuration having been purportedly endorsed by the Planning Approval.
1.3.3 In granting the Planning Approval, the Shire failed to take into account a relevant consideration, namely whether the development involves an unacceptable compromise to road
(Page 7)
- safety by reason of the matters alleged in paragraphs 1.3.1, 1.3.2 and 1.3.4 above.
- 1.4 Not granted to owner or person undertaking the development
The Planning Approval is void because it was not issued to either the owner of the subject land or to the person who would undertake the proposed development."
Background
4 In May 1966 Ampol Petroleum Ltd ("Ampol") became the registered proprietor of land which was then known as Gascoyne Location 5 in Certificate of Title volume 954, folio 197 ("original land"). In October 1966 the original land was subdivided into:
(a) lots 11 and 13 in Certificate of Title volume 6, folio 268A;
(b) lot 12 in Certificate of Title volume 6, folio 267A.
5 Lot 13 included a narrow strip on the eastern side of lot 11 to provide access to the North West Coastal Highway for lot 13 ("relevant strip").
6 In 1967 a service station and roadhouse ("roadhouse") was constructed on lot 11. The roadhouse and adjacent caravan park was a composite development undertaken by Ampol and a Mr and Mrs Kestel. The Kestels operated the service station as an Ampol roadhouse from approximately 1967 until 1981.
7 In February 1968 Ampol transferred the title to lot 11 to the Kestels. The balance of the original land (lots 12 and 13) was amalgamated to become lot 13 on Certificate of Title volume 70, folio 132A ("lot 13").
8 From February 1968 until 1975 Ampol, as registered proprietor of lot 13, permitted the Kestels to use the relevant strip for the purpose of allowing ingress and egress of vehicles to and from the roadhouse.
9 In 1975 Ampol transferred lot 13 to Mr B Collier. By a lease agreement, Mr Collier leased a portion of the relevant strip ("Access Portion") to the Kestels so that ingress and egress over the Access Portion for roadhouse users could continue. Save for the Access Portion, lot 13 was used as a plantation.
(Page 8)
10 In 1974, lot 11 was subdivided into two parcels, being:
(a) lot 14 on Certificate of Title volume 1381, folio 729; and
(b) lot 15 in Certificate of Title volume 1381, folio 731.
11 In 1981 the Kestels sold the roadhouse back to Ampol. In May 1981 Ampol became the registered proprietor of lot 15. By deposited plan 29034 ("Plan") approved in February 2002, the Access Portion was added to lot 15 to form lot 1 on the Plan. The balance of lot 13 became lot 2 on the Plan. On 26 November 2002 Caltex became the registered proprietor of lot 1.
12 Mr Humphrey's evidence was that prime movers commenced using the rear of the roadhouse after a cyclone and major flood in Carnarvon in 2000. Until that time, a wall and fence had prevented such use. After the wall and fence were destroyed, prime movers parked at the rear of the service station and on the Access Portion whilst the drivers used the roadhouse.
13 In an Application for Planning Approval dated 9 December 2002 ("Planning Application"), Australian Petroleum Pty Ltd applied to the Shire for approval of a proposed development in the following terms: "HOT MIX & TRUCK FILL AREA TO REAR OF SERVICE STATION BUILDING".
14 The land on which the proposed development was to occur is described as lot numbers "13 & 15" and the proposed use is given as "CALTEX SERVICE STATION". The Application was accompanied by a proposed site plan which showed the existing structures and the proposed works on lots 13 and 15. The proposed works (hot mix and diesel fuel pumps) were on lot 15 at the rear of the roadhouse ("roadhouse site") to which the applicants' land abutted. There were no proposed works on any part of lot 13. However, it was not in dispute that the Access Portion (which formed part of lot 13) was an integral part of access and egress for prime movers using the rear of the roadhouse.
15 On 23 July 2003 the Council of the Shire resolved to grant conditional approval to the Planning Application. The decision materially provides:
"The Council, having considered the application dated 9 December 2002 submitted by [Australian Petroleum P/L] in respect of a proposed development on Lots 13 and 15 Robinson
(Page 9)
- Street KINGSFORD as shown on the plans accompanying the application, hereby advises you that it has decided to:
GRANT PLANNING APPROVAL
subject to the following conditions".
16 Relevant conditions include those numbered (5), (6), (7) and (12) as follows:
"(5) Noise emissions to be controlled to the satisfaction of the Director of Community Services;
(6) The applicant to prepare and implement a noise mitigation strategy to the satisfaction of the Shire's Director of Community Services;
(7) Noise reduction measures being implemented to the satisfaction of the Director of Community Services;
…
(12) The proposed new diesel filling point being located to the satisfaction of the Shire's Director of Engineering Services and Shire's Director of Planning and Development".
17 In a note to the decision it is stated that:
"In relation to Condition 6, the noise mitigation strategy should include the provision of signage directing drivers on the use of brakes/radios, requesting adherence to a 10 km maximum speed limit and taking other practical steps to reduce noise impacts as well as consideration of a landscaped earth bund inside and along the full length of the rear fence".
18 It was common cause that at the time the roadhouse was constructed and commenced operation, no Town Planning Scheme regulated the use to which the relevant land (lots 13 and 15) could be put; that at the time of the application for and grant of Planning Approval, Town Planning Scheme No 10 ("TPS 10") applied; that at the material time, lot 13 was zoned "Intensive Horticulture" under TPS 10 and the use classes "service station" and "roadhouse" were not permitted in that zoning.
(Page 10)
Ground 1.1 - Inappropriate Zoning
19 The applicants' argument involves four contentions as follows. Firstly, the Planning application was for "use" as well as physical works. Secondly, the accommodation of prime movers at the rear of the roadhouse and the consequential use of the Access Portion constituted a material change in use for which approval was required under cl 2.1.1 of TPS 10 which provides:
"Except as hereinafter provided, no development including a material change in the use of land or engineering works affecting the existing topography of land, shall be carried out on land within the Scheme Area without the prior consent of the Council. Such consent is hereinafter referred to as 'a Planning Approval' and is required in addition to a building licence."
20 "Development" is defined to mean:
"The use (including a material change in the use) or development of any land and includes the erection, construction, alteration or carrying out as the case may be, of any building, structure, erection, excavation or other works on any land."
21 Thirdly, the development the subject of the Planning Approval could not function without the Access Portion being used as an integral part of the operation as it enabled ingress, egress and parking of prime movers to the rear of the roadhouse. Therefore, the Planning Approval of the use of the Access Portion was not severable from the rest of the Planning Approval. Finally, as the Access Portion is zoned Intensive Horticulture and that zoning does not permit the proposed use, the Planning Approval is beyond power and void.
22 The only contention in dispute is the second. The second respondent contends the Planning Approval is within power because the proposed use of the Access Portion is a non-conforming use protected by cl 7 of TPS 10. Clause 7.1, 7.2 and 7.3 of TPS 10 provide:
"7.1 NON-CONFORMING USE RIGHTS
7.1.1 No provision of the Scheme shall prevent:
(a) the continued use of any land or building for the purpose for which it was being
(Page 11)
- lawfully used at the time of coming into force of the Scheme; or
- (b) …
- 7.2 EXTENSION OF NON-CONFORMING USE
7.2.1 A person shall not alter or extend a non-conforming use or erect, alter or extend a building used in conjunction with a non-conforming use without first having applied for and obtained the Planning Approval of the Council under the Scheme and unless in conformity with any other provisions and requirements contained in the Scheme.
7.3 CHANGE OF NON-CONFORMING USE
7.3.1 Notwithstanding anything contained in the Zoning Table the Council may grant its Planning Approval to the change of use of any land from a non-conforming use to another use … if the proposed use is, in the opinion of the Council, less detrimental to the amenity of the locality than the non-conforming use and is, in the opinion of the Council, closer to the intended use of the Zone or Reserve."
24 TPS 10 contains a Zoning Table that identifies categories of uses under general headings such as, for example, "commercial uses" and then more specifically by reference to the type of activity carried on (service station, roadhouse, caravan park, bank, hotel, etcetera). A service station or roadhouse is not a permitted use of land zoned Intensive Horticulture.
25 Before going to the facts, it is necessary to construe and reconcile cl 7.2.1 with cls 7.1.1 and 2.1.1 of TPS 10. The second respondent relied heavily on Shire of Perth v O'Keefe (1964) 110 CLR 529. That case concerned the construction of a by-law which provided:
(Page 12)
- "If at the date of the publication of these by-laws in the Government Gazette, any land, building or structure is being lawfully used for a purpose or built on in a manner not permitted by these by-laws, such land, building or structure may continue to be used for that purpose or in that manner but no such building or structure shall be added to or altered unless special permission to do so is granted by the Board."
26 At the date of the commencement of the by-law, land within a residential zone was lawfully used for pottery-making. Pottery-making fell within the category of "light industry" in the by-laws. The question for the Court was whether the land could be used for any activity in the category of "light industry" apart from pottery-making. The High Court held that the land might continue to be lawfully used for pottery-making but not for the purposes of any other activity within the category of light industry.
27 The respondent in O'Keefe contended that the meaning of the word "purpose" in the by-law was to be derived from exceptions listed in the by-laws which identified purpose by reference to broad categories such as light industry. It was submitted that if the word "purpose" did not mean the broad category, "there is no point at which the process of narrowing the application of the word [purpose] in [the] by-law can logically stop". In answer to that submission, Kitto J said (at 534 - 535):
"But at the outset it is necessary to observe that the 'existing use' by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized by by-law 372, whether that use is really and substantially a use for
(Page 13)
- the designated purpose. That will often be a question of fact and degree … and for that reason border-line cases will inevitably arise in which opinions will differ."
28 Kitto J concluded (at 536) that the word "purpose" in the by-law was intended to refer to such ranges of activities as may be described in the ordinary use of language by expressions descriptive of trades, industries, etcetera, rather than to the details of the particular aggregation of activities.
29 The Court's observations in O'Keefe that changes in activities can occur without there being a relevant change in "use … for that purpose" are obiter. However, they have been approved and applied. Like the by-law considered in O'Keefe, cl 7.1.1 of TPS 10 also refers to "continued use … for the purpose".
30 The phrase "continued use" in an existing use saving provision was considered by the High Court in Dorrestijn v South Australian Planning Commission (1984) 56 ALR 295. The question in issue in that case was whether the clearing of land on which the appellant farmed was a "development" and whether it required the consent of the local planning authority under South Australian planning legislation. The term "development" was statutorily defined to include a change in use of the land. However, there was an existing use provision which permitted the continued use of land for purposes for which it was lawfully being used at the relevant time. The majority (Mason ACJ, Deane and Dawson JJ at 300) held that the phrase "continued use" included such developments as would necessarily, if not ordinarily, be involved in the use of land for the particular purpose for which it continues to be used. The clearing of land on which the appellant farmed was held to be within the existing use protection for which approval was not required notwithstanding that clearing fell within the definition of "development".
31 The Court in City of Mitcham v Fusco (2002) 124 LGERA 196 came to the same conclusion but by an alternate route. The question was whether there was a development which required planning approval because it involved a change in use of land. The answer depended on whether the activity (planting olive trees) was a continuation of an existing lawful non-conforming use, in which event approval was not required. The land had been used for the production of primary products, including fruits and nuts but not olives. The Court concluded the planting of olive trees was within the same genus as existing activities and was a continuation of an existing non-conforming use and not a change of use.
(Page 14)
- The Court agreed with the approach taken by Wells J in Prestige Car Sales Pty Ltd v Walkerville Town Corporation (1979) 20 SASR 514 at 522:
"The principles for determining what is an existing use and whether there has been a change of existing use should be flexible. They are not convertible into hard and fast rules. Rather they should be treated as directing a comprehensive survey of the circumstances that are obtained before the planning regulations in question came into force, and of the circumstances that would obtain if the proposed extensions or reconstructions were to be made or carried out. The object of the survey should be to decide whether, having regard to the purpose of the former use of the subject building, and to the purpose of the use that will be made of it after execution of the proposals, there would, as a matter of fact and degree, be a change in the essential nature of the existing use …".
"The courts have done so by refusing to categorise an 'existing use' so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation."
33 In Franconi v Shire of Perth (1964) 11 LGRA 380 the Court considered whether, as a result of an increase in the intensity of a non-conforming use, the protection in the same by-law considered in O'Keefe ceased to apply. There had been an increase in the number of vehicles using the relevant lane for parking. Wolff CJ said (at 384):
"In my opinion, a mere increase in degree of a non-conforming use is not an infringement of the by-laws if the type of use is in
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- substance what it was when the ameliorating by-law preserving existing user [sic] came into force."
34 Another example of the approach taken in identifying what is protected by an existing use provision is in Norman v Gosford Shire Council (1975) 132 CLR 83. For the years before 1972 the owner of land used it for the removal of topsoil and filling in a very small way. The material was obtained manually and was the subject of few annual transactions. From 1972 production greatly expanded, bulldozers and trucks were used and the land took on the appearance of a quarry. The local authority applied for an injunction restraining the use of the land on the ground it had not consented to the use. The High Court held that the nature of the use of the land had not altered notwithstanding the very significant changes in the method and expansion of production. Norman's case is relied on as authority for the proposition that amenity consequences are irrelevant to the determination of whether a use is continuing for the purpose of savings provisions: see King v Lewis & Maclean Shire Council (1991) 74 LGRA 362 at 371, per Cripps CJ; South Sydney City Council v Houlakis (1996) 90 LGERA 399 at 404. Certainly the very large amenity impacts played no part in the High Court's assessment of whether the post-1972 quarrying was a continuing use.
35 Prima facie, an existing use right applies to the entire land and not just to a specific portion on which activities may traditionally have been conducted: Norman (supra) at 87; City of Mitcham v Fusco (supra); Mobil Oil Australia Ltd v Ku-Ring-Gai Municipal Council (1990) 70 LGRA 419.
36 Thus, the authorities clearly establish that there can be changes in the activities (uses) on the land that are protected by cl 7.1.1. The test is variously formulated as whether there has been a change in the essential nature of the use, whether the "new" activity is within the same genus as the existing use and whether the use is in substance the same. The next question is the scope of cl 7.2.1; in particular, does it apply to all alterations or extensions of a non-conforming use regardless of the nature or magnitude?
37 There appears to be no equivalent of cl 7.2.1 in the relevant by-laws considered in O'Keefe and Franconi. However, the other authorities to which I have referred construe existing use saving provisions to override (in terms or effect) other requirements for planning approval. Such a construction is consistent with the opening words of cl 7.1.1 that no
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- provision of the scheme shall prevent the continuation of a non-conforming use. Further, cl 7.1.1 is not made subject to cls 7.2.1 or 2.1.1. Having regard to the peremptory nature of the opening words and the other matters to which I have referred, cl 7.2.1 and cl 2.1.1 must, in my view, be read down so as not to derogate from the rights protected in cl 7.1.1. That outcome would be achieved by confining cl 7.2.1 to alterations or extensions of uses that are not otherwise within the protection in cl 7.1.1. In my view, that is the correct construction of TPS 10. I have considered other possibilities, one being that cl 7.2.1 only requires Shire approval when an alteration or extension of a use involves a material change of use of the kind that triggers the obligation for Planning Approval under cl 2.1.1. However, that is likely to reduce the changes in activity otherwise permissible under cl 7.1.1. Another possibility is that cl 7.2.1 applies to all alterations or extensions of use regardless of their nature or magnitude, but does not entitle the Shire to refuse approval but only to regulate (condition) the grant of approval. However, the language of the clause does not support such a construction.
38 Accordingly, the relevant questions are whether the Access Portion was the subject of non-conforming use rights when TPS 10 came into force in February 1988 and if so, whether there has been an alteration or extension that is outside the scope of the protection in cl 7.1.1.
39 Mr David Kestel and Mr Ross Benzie gave unchallenged evidence of use. Mr Kestel managed the roadhouse and caravan park from 1968 until the early 1970's, then managed the caravan park alone until 1978 and thereafter frequently visited the roadhouse until 2003. His evidence was that during the time he was responsible for the day-to-day operations of the management of the roadhouse and caravan park and on all later visits, he remembered seeing trucks and other forms of heavy haulage machinery access and use the roadhouse site regularly, initially using the relevant strip and after the commencement of the lease, the Access Portion, for ingress and egress to and from the roadhouse.
40 Mr Benzie was Ampol's manager of accounting for Western Australia from 1974 to 2000. He first visited the roadhouse in about 1967 and made periodic visits to the roadhouse in the course of his duties. His evidence was that the relevant strip and then the Access Portion was used continuously, from 1968 until he retired in 2000, for the purpose of ingress and egress to and from the roadhouse for trucks and other forms of heavy haulage machinery.
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41 As I understand the applicants' case, they accept (or at least they did not contend to the contrary at the hearing) that the Access Portion was lawfully used for access to and egress from the roadhouse at the time of the coming into force of TPS 10 in February 1988. Indeed, the uncontradicted evidence is to that effect. Thus, the Access Portion was at all material times until the commencement of TPS 10 used for service station and roadhouse purposes.
42 The applicants claim there was a material change in use of the Access Portion from 2000 for which Shire approval was required. For the reasons given, that is not the correct test. Further, it was pointed out to counsel for the applicants that if the construction I favour is wrong, the Shire has, in any event, approved the alteration in use. Counsel's response was that in giving approval the Shire did not have regard to matters relating to an alteration of a non-conforming use. However, that is not a ground of challenge to the Planning Approval. Nevertheless, I propose to consider whether the matters relied on by the applicants deprive the landowner of the protection in cl 7.1.1.
43 The applicants rely on the affidavit evidence of Mr Humphrey. His evidence was that after the service station had been rebuilt following damage resulting from the cyclone and flood in 2000 "the site commenced for the first time accommodating road trains". His reference to "road trains" is an error. He intended to refer to prime movers, being a truck capable of towing one or more trailers whether or not it was actually doing so. He continued:
"Prior to the rebuilding, there were no heavy haulage trucks. Those trucks now ingress the site from either of the bottom south-western or south-east corners on Robinson Road, then proceed along the northern portion of the site in an arc and egress the site at the opposite bottom corner. At the north of the site behind the roadhouse is land which heavy vehicles could not previously access prior to the Rebuilding due to a brick wall and certain fencing having been, to my personal observation, in place there. That wall was either destroyed in the flooding or removed at the time of the Rebuilding. Initially the service station did not offer refuelling facilities for the [prime movers]. It did not have fast flow diesel pumps. The [prime movers] would simply park and the drivers would stop for a meal at the service station building.
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- After the Rebuilding, Caltex commenced using the [Access Portion] to accommodate the turning around of the [prime movers].
The [prime movers] normally park straddling the [Access Portion] and the area to the rear (north) of the roadhouse building. However they would be mainly on the [Access Portion]. The drivers generally go in for a meal at the service station building.
[Prime movers] are of such a size and have a turning circle such that, the only way they can negotiate through the Service Station Land, with the main service station building being located where it is, is by using the pattern described above."
44 The matters relied on by the applicants to establish change of use are:
(a) the change in the type of vehicle using the roadhouse, namely, prime movers;
(b) the use by prime movers of the Access Portion to and from the rear of the roadhouse land; and
(c) the amenity impact of prime movers accessing the rear of the roadhouse land (being an increase in the level of noise received at the caravan park).
45 I infer the applicants' focus is on prime movers because such vehicles are practically required to use the Access Portion because of size. There is no evidence that other vehicles do (and did) not access the rear of the roadhouse. However, the evidence does not identify any other relevant differences between prime movers, on the one hand, and the trucks and heavy-haulage machinery referred to by Messrs Kestel and Benzie, on the other. Further, on the evidence, the Access Portion has been continuously used for roadhouse purposes since the 1960's. In particular, the Access Portion has always been used by vehicles, including trucks and other heavy-haulage machinery (other than prime movers), to access the roadhouse site. The difference is that since 2000 a particular type of truck has to use the Access Portion to get to and from the rear of the buildings.
46 The authorities establish that the amenity impact is not relevant to whether a change in activities is protected by an existing use provision. Even if it is relevant, it would not alter the outcome because the evidence
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- does not differentiate between the amenity impacts of prime movers and the other vehicles referred to by Messrs Kestel and Benzie.
47 Based on the evidence, I conclude that the nature of the use of the Access Portion did not alter after 2000. Both before and after 2000 it was used for accessing and leaving the roadhouse. In my view, the purpose or intended destination of a prime mover being the rear of the roadhouse site does not change the nature of the use (or alternatively, the essential nature of the use) of the Access Portion. I would dismiss ground 1.1.
Ground 1.2 - Noise Regulations
48 Prior to the lodgment of the application for Planning Approval in December 2002, the applicant and their solicitors, McLeods, complained to the Shire concerning vehicular use of the land at the rear (north) of the roadhouse after 2000. After the application for Planning Approval was made, McLeods supplied to the Shire a report in writing dated 7 February 2003 from Vipac Engineers and Scientists ("Vipac report") on noise emissions from the site.
49 Caltex also obtained and provided to the Shire an acoustic report from a firm called Herring Storer which suggested possible noise abatement measures. The Herring Storer report is not in the application books. However, it appears from a shire officer's report to Council dated 14 March 2003 that the reports reached different conclusions and recommended different actions.
50 The Council granted the Planning Approval at its meeting on 23 July 2003. In an officer's report considered by the Council at that meeting it was recommended that a condition be imposed to the effect that the rear (northern) section of the site not be available for trucks between the hours of 10 pm and 6 am. Although other recommended noise conditions were imposed (conditions 5, 6 and 7 set out earlier), the curfew recommendation was not accepted. The minutes record that "Council felt that one of the purposes of the Roadhouse was to cater for Road Trains with the provision to supply sufficient space to turn around therefore it was unreasonable to place this restriction".
51 The applicants contended that in light of the Vipac report the decision to grant Planning Approval was so unreasonable that no reasonable planning authority could have made it and, alternatively, the Shire failed to take into account a relevant consideration, namely, the Vipac report.
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52 In order to determine these questions it is necessary to refer to the content of the Vipac report and the regulatory framework.
53 The Vipac report concludes that "there is no way that the Caltex operators would be complying at present with their requirements under the Environmental Protection (Noise) Regulations 1997". The report then goes on to state the factual basis for the opinion.
54 Regulation 7 of the Noise Regulations states that noise emitted from any premises, when received at other premises, must not cause, or significantly contribute to, a level of noise which exceeds the assigned level in respect of noise received at premises of that kind. Regulation 8 deals with "assigned levels". The assigned level varies according to the time the noise occurs in a representative assessment period (being levels not to be exceeded for more than one per cent of that period or 10 per cent of that period). However, there is a maximum level that is not to be exceeded at any time. The levels also vary according to the type of premises receiving the noise and the time at which the noise occurs. Vipac applied levels applicable to noise-sensitive premises at locations within 15 metres of a building directly associated with a noise-sensitive use. In that situation, the assigned decibel level is increased by what is termed an "influencing factor". The determination of the influencing factor on noise-sensitive premises is dealt with in Sch 3 of the Noise Regulations. The calculation is complex and the facts necessary to make a determination do not appear in the Vipac report which simply states the influencing factor would be small, "probably 2 to 3 dB at the most". That conclusion cannot be tested. Further, the report makes assumptions as to the frequency with which trucks would use the rear of the roadhouse site. The assumption is not proven. However, based on an attachment, not included in the application books, containing an analysis of typical noise emission levels for "heavy vehicles", the report concludes that such trucks (which are not identified) would frequently exceed the maximum level based on its estimate of the influencing factors.
55 The Noise Regulations also impose requirements for the measurement of noise, including where and how the noise is to be measured and with what instruments (Pt III, r 19 - 23) and how they are to be calibrated. These matters are not addressed in the Vipac report.
56 Noise emitted in contravention of the standard prescribed under reg 7 is to be taken to be unreasonable for the purposes of s 3(3)(a) of the Environmental Protection Act 1986 (WA). Section 49(4) of the Act provides that a person who intentionally or with criminal negligence emits
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- or causes an unreasonable emission to be emitted commits an offence. Further, under s 51 of the Act, the occupier of any premises who does not comply with any prescribed standard for an emission and take all reasonable and practical measures to prevent or minimise emissions from those premises commits an offence.
57 I am not satisfied the Vipac report establishes, even on the civil standard, that the Noise Regulations were being breached. Further, the Vipac report does not state that a noise mitigation strategy could not ensure compliance with the Noise Regulations.
58 The second respondent relied on reg 17 of the Noise Regulations, which provides that where a person is of the opinion that he cannot reasonably or practicably comply with a standard prescribed under the Noise Regulations, he may apply to the Minister for approval to allow the emission of noise to exceed the standard. There is no evidence of such an application or approval. Unless and until such approval is granted, this avenue is of no relevance.
59 With that background, I turn to the particular challenges. A failure to take into account a relevant consideration only applies where the decision-maker is bound to take into account the consideration said to be relevant: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. As no party contended that the Shire was not bound to consider the Vipac report, I will proceed on the assumption that it was bound.
60 The preponderance of authority is to the effect that the duty requires proper, genuine and realistic consideration of the relevant matter: Khan v Minister for Immigration, Local Government & Ethnic Affairs (1987) 14 ALD 291; Williams v Minister for the Environment & Heritage (2003) 74 ALD 124.
61 The applicants carry the onus of establishing that the Shire failed to give proper consideration to the Vipac report. The evidence is to the contrary. The letter from McLeods to the Shire enclosing the Vipac report summarised its substance. At its meeting on 26 March 2003 the Council considered a report dated 14 March 2003 from its Director of Planning and Development. That report referred to the acoustic reports and that the Shire had undertaken a preliminary in-house assessment. Further, conditions 5, 6 and 7 of the Planning Approval demonstrate that the Council was keenly aware of the noise issues raised by the applicants. As
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- noted, the Vipac report does not suggest that noise reduction strategies could not achieve compliance with the Noise Regulations.
62 The applicants also relied on events that occurred after the grant of Planning Approval. Subsequently, Caltex prepared a Noise Mitigation Strategy that provided for the planting of trees along the northern boundary, speed restrictions, a change of position of the diesel filling pump to be as far as possible from the northern boundary and signs requesting drivers to reduce noise levels and to minimise reversing (and the noise associated therewith). The Noise Mitigation Strategy was considered by Council at its meeting on 25 May 2004. Council resolved to support and endorse the strategy on the ground it satisfied condition 6 of the conditional approval. This decision was not the subject of challenge. The applicants contend the decision proves that at the time the Shire made the decision under challenge it had not "grappled with" the Vipac conclusion that the operation at the time of its report breached the Noise Regulations. The underlying premises of this submission are that the Shire should have acted on the basis that Vipac was correct and that this Court should accept (without evidence) that the Noise Mitigation Strategy is obviously inadequate. The evidence does not support either premise. In any event, it is not this Court's role to determine the merits of the decision to grant Planning Approval. In my view, this post-decision conduct does not materially bear upon the question of whether or not the Shire took into account the Vipac report. I am not satisfied that the Shire failed to take into account the Vipac report.
63 I turn now to the question of whether the grant of Planning Approval is unreasonable. The applicants rely on the traditional statement of the law which is that a reviewable error of law for unreasonableness is only made out if it is shown that no reasonable person could have reached the decision under challenge, a test aimed at ensuring the Court does not exceed its supervisory role by reviewing a decision on its merits: Peko-Wallsend (supra) at 41 - 42. That is Wednesbury unreasonableness (based on the principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223). The grounds do not assert that the decision is irrational or illogical in accordance with the principles discussed by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 (see the discussion in Carcione Nominees Pty Ltd v Western Australian Planning Commission [2005] WASCA 56 at [95 - 99] and Aronson, Dyer & Groves: Judicial Review of Administrative Action, 3rd ed (2004), at 338 - 339.
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64 I am satisfied that the decision to grant conditional Planning Approval does not fall within the concept of Wednesbury unreasonableness (and is not irrational or illogical). The correctness of Vipac's opinion was not proven and, importantly, there was no suggestion that noise prevention strategies could not effectively address any problem. Conditions 5, 6 and 7 are, in my view, a reasonable and logical response to the issue. Further, the Council had a report which had conflicting conclusions and recommendations for mitigation.
Ground 1.3 - Road Safety
65 The uncontradicted evidence of Mr Humphrey is that prime movers are required to drive along the wrong side of North West Coastal Highway for 30 - 50 metres before being able to veer onto the left-hand side of the highway when they are turning left from the service station site.
66 The applicants raised this matter with Main Roads Western Australia (MRWA) who in turn raised it with the Carnarvon police. The applicants and the Shire were advised by MRWA by letter dated 10 October 2002 that:
"Senior Sergeant Mettam [of the Carnarvon police] advised that under current traffic laws, road trains are permitted to cross onto the opposing lane of traffic when conducting a turning movement, provided it is safe to do so.
Due to the relatively small number of road train movements at this location and the ample site distance in all directions, a general agreement was reached between Police and MRWA that no action is warranted at this point in time."
67 The applicants contend the Shire failed to take into account a relevant consideration, being whether the development involved an unacceptable compromise to road safety. Having regard to the evidence, the applicants have failed to establish that there was a relevant safety issue which the Shire was obliged to consider.
68 In any event, the applicants failed to prove that the issue was not considered by the Shire. This question was expressly raised by McLeods for the applicants in letters to the Shire dated 9 October 2002 and 18 February 2003. It appears McLeods' correspondence was provided to members of Council in schedules attached to the report dated 14 March 2003 from the Shire's Director of Planning and Development. The fact
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- that the minutes of the Council meeting at which the Planning Approval was granted do not expressly refer to the safety issues does not discharge the applicants' burden of proving that the Shire failed to take the issue into account. Council minutes do not purport to be an exhaustive statement of what was considered by the Council or its reasons for decision. I would dismiss this ground.
Ground 1.4 - Identity of Applicant
69 There is no merit in this ground. The evidence establishes that the applicant, Australian Petroleum Pty Ltd, changed its name to Caltex Australia Petroleum Pty Ltd, the owner of the land the subject of the application and grant of Planning Approval. They are the same entity.
Injunction Application
70 The applicants also seek a permanent injunction restraining the second and third respondents from using or permitting to be used:
(a) the Access Portion by any vehicle, alternatively prime mover, for roadhouse purposes;
(b) any other part of Lot 1 by any prime mover for roadhouse purposes.
71 The relief in par (a) is sought in the event ground 1.1 concerning inappropriate zoning succeeds. Paragraph (b) is sought if any of the other grounds of challenge succeed. As all grounds fail, the application for injunction relief is also refused.
Conclusion
72 For these reasons, I would discharge the order nisi and dismiss the application for an injunction.
73 PULLIN JA: The Shire of Carnarvon granted planning approval to the second respondent ("Caltex") in respect of a service station development in Carnarvon.
74 There is a short factual background which has to be set out before considering the issues raised by the order nisi. The area of land in question contains a section on which the service station building is constructed and to the east a portion of land which was once part of lot 13, but which has more recently become part of the land encompassed in the title which covers the whole of the land, used by the service station. The
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- portion of land which was once part of lot 13 is zoned for horticultural purposes. The use of that land for a service station would be contrary to that zoning. The use of that portion of land, however, dates back to the 1960s. It has been used for the parking of trucks and the egress of trucks onto the highway from the service station. The land immediately to the north of the service station is occupied by the applicants who run a caravan park.
75 In the year 2000 there was a cyclone which damaged the service station and, after it was repaired, trucks using the service station drove over the service station land in a way that was different from the way they drove over it before 2000. Before 2000 there was a brick wall which prevented trucks going around the back of the service station, that is to the north of the service station between the service station building and the boundary with the applicant's land. After the work was done in 2000, the brick wall which had prevented trucks moving into that area was removed.
76 After 2000 the applicants noticed that big trucks, including prime movers with attached trailers called road-trains, were now moving quite close to the boundary, and the sound of the brakes and the refrigeration equipment close to the boundary disturbed persons who use the caravan park. This led to the applicants conducting a long campaign to try and stop this happening.
77 As a result, Caltex decided to make an application for planning approval to allow it to put hot mix down in the area to the north of the service station building and to install a new fuel bowser, which would mean that the trucks and particularly road-trains would be refuelled in the area which puts the trucks close to the applicant's boundary. As the road-trains moved around this area and go back out onto the highway, they necessarily turned across the portion of land which was once part of lot 13. Because of their size the road-trains then moved out onto the highway and in completing their turn onto the highway they had to move onto the wrong side of the road.
78 The Shire granted planning approval. The application for planning approval referred to the use of the land as a service station. The Shire approved the building works and imposed conditions intended to deal with the problem of noise. The conditions are set out in McLure JA's reasons for decision.
79 The applicants challenged the Shire's grant of planning approval and an order nisi was granted on four grounds.
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The grounds in the order nisi
80 The first ground of challenge is that the portion of land which was once part of lot 13 was not appropriately zoned for the use as a service station, and that in consequence it was beyond the power of the Shire to grant approval in relation to the use of that land as a service station.
81 Secondly, the applicants challenged the decision on the basis that the Shire had before it apparently cogent expert evidence that the development would necessarily and unavoidably involve breaches of the noise regulations when the road-trains passed in close proximity to the boundary with the applicant's caravan park. The contention is that the granting of planning approval in those circumstances was a decision so unreasonable that no reasonable planning authority could make it. Alternatively, it is argued that the Shire failed to take into account a relevant consideration, namely the evidence referred to.
82 Thirdly, there was a contention that the proposed development involves an infringement of road safety in that the trucks driving out from the service station will be moving on the incorrect side of the road for some distance and that this involves an unacceptable compromise to road safety.
83 Fourthly, the applicant contends that the planning approval was void because it was not issued to either the owner of the subject land or to the person who would undertake the proposed development.
Zoning ground
84 The applicant is quite correct when it contends that planning approval could not be granted to use land for a service station on land which is zoned for horticultural use. However, the respondent answers this point by submitting that this portion of what was once lot 13 had been used in that way before Town Planning Scheme No 2 came into force in December 1972, and that it was a non-conforming use and no approval was necessary.
85 The applicant then answers that contention by submitting that in the year 2000 there was a material change of use, and a material change of use required approval because of cl 2.1.1 of Town Planning Scheme No 2 which stated (AB 181) that:
"Except as hereinafter provided, no development including a material change in the use of land … affecting the existing
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- topography of land shall be carried out on land within the scheme area without the prior consent of the Council."
86 In my opinion this clause has no operation in the circumstances of this case because the change of use which is alleged to have occurred, namely the changed pattern of use by larger trucks moving on a different section of the site, causing extra noise, did not affect the existing topography of the land.
87 Reference was also made to cl 7.1.1 and 7.2.1. Clause 7.1.1 provided:
"No provision of the Scheme shall prevent
(a) the continued use of any land … for the purpose for which it was being lawfully used at the time of coming into force of the Scheme …"
- and cl 7.2.1 read:
"A person shall not alter or extend a nonconforming use … without first having applied and obtained the planning approval of the Council under the Scheme …"
"Notwithstanding anything contained in the zoning table the Council may grant its planning approval to the change of use of any land from a nonconforming use to another use if the proposed use is in the opinion of Council less detrimental to the amenity of the locality than the nonconforming use and is in the opinion of Council closer to the intended use of the zone or reserve".
89 Clearly cl 7.3.1 can have no application in this case.
90 The respondent says that there was no material change of use in 2000, but in the alternative, if there was, then the approval granted by the Shire was an approval under cl 7.2.1 by necessary implication.
91 The applicants' answer to this is that the change that occurred in 2000 was not a "alteration" or an "extension" of the nonconforming use. The submission was that it was a new use. It is at that point that I think that applicant fails. In my opinion this was not a new use.
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92 Clause 7.1.1 contemplates the use of land for a purpose. The expression "use of land for a purpose" was considered in Shire of Perth v O'Keefe (1964) 110 CLR 529. Applying that case, the purpose which has always been relevant in relation to the land under consideration here was as a service station. In my opinion, the use of the land before Town Planning Scheme No 2 came into operation was use of the land for the purpose of a service station. Even if the fact that the trucks began driving to the north of the service station building, producing extra noise affecting the adjoining property, could be said to be a material change of use, it was not a new use but an extension in the extent of the existing nonconforming use as a service station.
93 The Shire's planning approval was clearly an approval of the application for both building works and for use as a service station, and approval was given subject to conditions which were directed entirely to the use of the land and which attempted to deal with the problems of noise on the site.
94 In my opinion the first ground is not made out.
Breach of noise regulations
95 The Shire did have before it expert opinion that there were likely to be breaches of the noise regulations, but the Shire dealt with this potential problem by imposing conditions which required a noise mitigation programme to be presented to an employee of the Shire. That strikes me as an entirely reasonable approach for the Shire to take because the Shire councillors themselves were unlikely to be able to grapple with technical issues about noise levels in a Council meeting. In my opinion it cannot therefore be said that the decision was so unreasonable that no reasonable planning authority could have made it. Further, it is impossible to successfully contend, as the applicant does, that the Shire failed to take into account the expert's report. On the contrary, it is quite clear that they did take it into account, which is why they imposed conditions to try and ameliorate noise problems. This ground has no merit.
Road safety
96 There is subsequent evidence that the police do not consider that there was a safety issue associated with the trucks turning across the highway. I agree with McLure JA's reasons on this ground.
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Approval not granted to owner or person undertaking the development
97 The application was made by Caltex but incorrectly showing the former company name. Nevertheless it was quite apparent that it was Caltex which was making the application. Its name appeared on the plan annexed to the application for planning approval. In addition the minutes of the Council recording the application shows that it was Caltex making the application. That ground should also be dismissed.
98 I agree with the orders proposed by McLure JA.
99 LE MIERE AJA: I have had the advantage of reading the reasons for judgment of McLure JA. I would discharge the order nisi and dismiss the application for an injunction for the reasons stated by her Honour.
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