ROCHESTER and SHIRE OF NORTHAM
[2019] WASAT 107
•8 NOVEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ROCHESTER and SHIRE OF NORTHAM [2019] WASAT 107
MEMBER: MR S WILLEY, MEMBER
HEARD: 15 AND 16 AUGUST 2019
DELIVERED : 8 NOVEMBER 2019
FILE NO/S: DR 247 of 2018
BETWEEN: GAVIN ROCHESTER
Applicant
AND
SHIRE OF NORTHAM
Respondent
Catchwords:
Town planning - Development application - Existing use rights - Non-conforming use rights - Shade house structures - Rural pursuit - Residential Design Codes - Amenity - Compatibility
Legislation:
Environmental Planning and Assessment Act 1979 (NSW), s 4.65, Div 4.11
Interpretation Act 1984 (WA), s 5
Local Government Act 1995 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 1, Sch 2, cl 67(c), cl 67(m), cl 67(n), cl 67(w)
Planning and Development Act 2005 (WA), s 4, s 214, s 237A, s 241(1)(a), s 255, s 256, s 257B(2), s 257B(3), Pt 3, Pt 5
State Administrative Tribunal Act 2004 (WA), s 9(b), s 24, s 27(1), s 27(2), s 29(1), s 32(2), s 91(2)
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 1.2, cl 5.2.4
Town of Northam Local Planning Scheme No 6, cl 3.3.2, Pt 4, cl 4.8, cl 4.8(a), cl 4.10, cl 5.2.2, Sch 1, Table 1
Town of Northam Town Planning Scheme No 1
Town of Northam Town Planning Scheme No 2
Town of Northam Town Planning Scheme No 4
Town of Northam Town Planning Scheme No 5, cl 4.3.2, Sch 1
Town Planning and Development Act 1928 (WA), s 7(3)
Result:
Application dismissed
Summary of Tribunal's decision:
Gavin Rochester (applicant) applied for retrospective approval for shade houses and a front fence on two adjoining lots (Lot 120 and Lot 121 Tankard Street, Northam) which are zoned for residential purposes.
The shade houses are connected with a rural activity of tree production. The applicant says that Lot 121 enjoys non-conforming use rights for rural pursuits. The Shire of Northam (Shire) does not consider that Lot 121 enjoys nonconforming use rights and refused the shade houses.
The Shire approved the front fence subject to a condition that the fence slats be separated by at least 50 millimetres to allow for visual surveillance and permeability and to provide a better streetscape outcome.
The Tribunal considered the relevant planning history and was not satisfied that Lot 121 enjoyed any non-conforming use rights for rural pursuits. The Tribunal also considered that the condition to increase the width of the front fence slats was appropriate having regard to the residential context of Lot 120 and Lot 121.
The Tribunal therefore determined that the correct and preferable decision was to dismiss the application for review.
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr C Hunt |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115; (2016) 90 SR (WA) 223
Burnett and Town of Cambridge [2006] WASAT 29
Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79; (2010) 72 SR (WA) 324
City of Mitcham v Fusco [2002] SASC 423; (2002) 124 LGERA 196
Corp and Town of Cambridge [2019] WASAT 65; (2019) 97 SR (WA) 252
D'Orazio Enterprises Pty Ltd and City of Stirling [2016] WASAT 99; (2016) 90 SR (WA) 107
Kogon and City of Vincent [2019] WASAT 75
Norman v Gosford Shire Council [1975] HCA 15; (1975) 132 CLR 83; (1975) 31 LGRA 368
North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50; (1989) 67 LGRA 344
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89
Prestige Car Sales Pty Ltd v Walkerville & Shuttleworth Town Corporation (1979) 20 SASR 514; (1979) 42 LGRA 80
Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1
Rando and City of Gosnells [2019] WASAT 6; (2019) 96 SR (WA) 247
Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182
Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; (2018) 232 LGERA 395
Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88
Swan Cove Holdings Pty Ltd v City of Subiaco [2001] WATPAT 7
Taddei v City of Stirling [2004] WATPAT 85
The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227
Turnbull Group v North Sydney Council [1998] NSWLEC 253; (1998) 101 LGERA 354
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWLEC 219; (2009) 173 LGERA 155
Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Gavin Rochester (applicant) seeks retrospective development approval for:
a)the erection of two shade houses for the production and growing of trees (hereafter referred to as the Rural Use Proposal); and
b)a front fence including proposed variations to the State Planning Policy 7.3 Residential Design Codes Volume 1 (Codes) (hereafter referred to as the Front Fence Proposal).
On the making of the application for retrospective development approval, on 10 September 2018 the Shire of Northam (Shire or respondent):
a)refused the Rural Use Proposal on the basis that the shade houses were associated with an unauthorised rural use; and
b)approved the Front Fence Proposal subject to a condition to increase the size of the gaps between the slats to a minimum of 50 millimetres to allow for visual surveillance.
On 2 October 2018 the applicant applied for a review of both the decision to refuse the Rural Use Proposal and the decision to impose conditions on the Front Fence Proposal.
The Rural Use Proposal is unusual because the applicant asserts that the shade houses in question are associated with a non‑conforming use right that enables him to continue to use his land for rural pursuits notwithstanding the current residential zoning of his land.
Having heard the evidence, I have determined that the correct and preferable decision is to affirm the Shire's decision to refuse Rural Use Proposal. This is because I am not satisfied that the applicant's land has the benefit of a non‑conforming use right for rural pursuits.
I will address the Front Fence Proposal after I have resolved the Rural Use Proposal. Ultimately, I have decided to affirm the Shire's decision to impose the condition to make the front fence more permeable.
The scope and nature of the review
In its review jurisdiction, the Tribunal is required to produce the correct and preferable decision: s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The review hearing is a hearing de novo: s 27(1) of the SAT Act.
The Tribunal is a creature of statute and only has the power to exercise the jurisdiction that was exercised by the decision‑maker in making the reviewable decision: s 29(1) of the SAT Act; see also The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227 at [20] to [23] (Pullin, Newnes and Murphy JJA); Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89 at [78] (Buss P, Murphy and Mitchell JJA).
Like the Shire at first instance, I must be mindful of the nature and limits of my role and ensure that I do not exceed my authority under the Planning and Development Act 2005 (WA) (PD Act) and the SAT Act: Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79; (2010) 72 SR (WA) 324 at [30] (Pritchard DCJ, as the President then was).
In this instance the question of whether the applicant has the benefit of a non‑conforming use right (the Rural Use Proposal) was an issue that was before the Shire in determining whether the Rural Use Proposal should be approved. It follows that, on review and standing in the shoes of the Shire, I too must address that question.
However, my decision in relation to the question of non‑conforming use rights is not in the nature of a declaration that has any legal effect. I have no authority to make such a declaration: s 91(2) of the SAT Act. Rather, in exercising the discretion as to whether the correct and preferable decision is to approve the Rural Use Proposal, I must reach a view as to whether I consider the applicant's land has the benefit of non‑conforming use rights to undertake rural pursuits.
Materials before the Tribunal
The parties have filed the following materials:
1)the respondent's statement of issues, facts and contentions (SIFC);
2)the applicant's SIFC;
3)the respondent's bundle of documents prepared pursuant to s 24 of the SAT Act (s 24 Bundle);
4)the applicant's bundle of documents;
5)the respondent's draft without prejudice conditions; and
6)the applicant's reply to the draft without prejudice conditions.
Evidence before the Tribunal
The Shire filed one witness statement from Ms Jacqueline Jurmann who is currently the Manager of Planning Services at the Shire.
The applicant filed a witness statement from Ms Heather Percy who is a Senior Research Officer at the Department of Primary Industries and Regional Development. Ms Percy has expertise in interpreting aerial photography.
The applicant gave oral evidence and read into evidence a detailed statement at the final hearing.
The relevant land
The applicant owns two adjoining lots on Tankard Street in Northam, being Lot 121 and Lot 120 (the Lots). Lot 121 is currently used by the applicant for a rural pursuit, being the growing of pecan nut seedling trees. Lot 121 has an area of 1,039m2. Shade structures were first erected on Lot 121 almost 14 years ago in 2005. Lot 120 contains the applicant's dwelling and has an area of 1,020m2.
The applicant became the registered proprietor of the Lots on 17 April 2003. As outlined below at [45] - [48], the applicant's case is that Lot 121 had been used for a rural pursuit prior to 31 August 2004. The significance of 31 August 2004 is that that is the date on which the Town of Northam Town Planning Scheme No 5 commenced.
Planning context and site history
Given that the Rural Use Proposal is premised on a historic use, it is necessary that I set out the relevant planning history of the Lots. I note that the planning history of a site is a matter to which I am required to give 'due regard' pursuant to cl 67(w) of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (LPS Regulations) (LPS Regulations). The LPS Regulations, and in particular, the effect of Sch 2, are explained at [29] ‑ [31] of these reasons.
The concept of the 'history of the site' for the purposes of cl 67(w) of Sch 2 to the LPS Regulations was explained in Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115; (2016) 90 SR (WA) 223 at [135] and also in D'Orazio Enterprises Pty Ltd and City of Stirling [2016] WASAT 99; (2016) 90 SR (WA) 107 at [66].
In terms of the relevant planning history, the materials before the Tribunal set out all planning schemes that have been prepared by the Shire (and the former Town of Northam) that relate to the Lots.
It is unnecessary that I record the evolution of planning controls applying to the Lots in any detail. However, what is important is that I identify the point at which 'rural pursuit' became a discretionary, rather than a permitted land use on the Lots. It is also important that I identify the point at which any lawful existing use rights for rural pursuits on the Lots became non‑conforming use rights.
Historical planning framework
Rural pursuits were a permitted use on the land that would become the Lots in the Town of Northam Town Planning Scheme No 1 (TPS 1) which was gazetted pursuant to s 7(3) of the former Town Planning and Development Act 1928 (WA) (TPD Act) on 25 October 1968. The land that would become the Lots (as the Lots had not yet been created) was zoned 'Rural' in TPS 1.
TPS 1 was replaced by the Town of Northam Town Planning Scheme No 2 (TPS 2) on 14 October 1977. The Lots were both zoned 'Rural' in TPS 2. Rural uses were permitted as of right in the Rural Zone.
TPS 2 was replaced by the Town of Northam Town Planning Scheme No 4 (TPS 4) on 12 October 1993. The Lots were zoned 'Rural' in TPS 4. The land use 'rural pursuit' was permitted in the Rural Zone.
TPS 4 was replaced by the Town of Northam Town Planning Scheme No 5 (TPS 5) on 31 August 2004. TPS 5 had the effect of changing the zoning of the Lots to 'Rural‑Residential'. The land use 'Rural Pursuit' (meaning premises used for, inter alia, the growing of trees, plants and shrubs or flowers: Sch 1 to TPS 5) was identified as a 'D' use in the Rural‑Residential Zone. A 'D' use meant the use was not permitted unless the local government had exercised discretion by granting approval: cl 4.3.2 of TPS 5. Given the nature of the applicant's case, the commencement of TPS 5 on 31 August 2004 is of particular significance in these proceedings. This is because activities that comprised the 'Rural Pursuit' land use became discretionary (thus requiring development approval) from 31 August 2004.
TPS 5 was replaced by the Town of Northam Local Planning Scheme No 6 (TPS 6) on 21 August 2013. The zoning of the Lots changed from Rural‑Residential to 'Residential' in LPS 6. The land use 'Rural Pursuit' (meaning premises used for, inter alia, the growing of trees, plants and shrubs or flowers: Sch 1 to LPS 6) was (and remains) an 'X' use in the Residential Zone: Table 1 and cl 3.3.2 of LPS 6. An 'X' use means that the use is prohibited: cl 4.3.2 of LPS 6.
From 21 August 2013 any lawful existing use rights for rural pursuits on Lot 121 became non‑conforming use rights.
Applicable planning framework
Local Planning Scheme No 6
LPS 6 is a local planning scheme made pursuant to Pt 5 of the PD Act. LPS 6 is a 'written law' for the purposes of s 5 of the Interpretation Act 1984 (WA). The Lots are zoned 'Residential' in LPS 6 with a density coding of R10.
Pursuant to s 256 of the PD Act the Planning Minister has prepared regulations for local planning schemes. These regulations are known as the LPS Regulations. Schedule 2 to the LPS Regulations includes a set of provisions that are deemed to apply to all local planning schemes. I will refer to these Sch 2 provisions as 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 therefore form part of LPS 6.
Section 257B(3) of the PD Act provides that to the extent of any inconsistency between a deemed provision and another provision of LPS 6, the deemed provision prevails: Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1 at [30].
In Rando and City of Gosnells [2019] WASAT 6; (2019) 96 SR (WA) 247 at [52] - [59] I set out the principles that apply to the construction of local planning schemes. Those principles include that the ordinary canons of construction apply to local planning schemes.
In Kogon and City of Vincent [2019] WASAT 75 I noted, at [16], that the task of construction must focus on the text itself, but the broader context is relevant. A relevant aspect of that context is that a planning scheme is not ordinarily drafted by a Parliamentary draftsperson. As a result, planning schemes should be construed broadly, sensibly and practically: Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132 (Steytler P, McLure JA, Pullin JA) at [25] (McLure JA).
As was explained by Edelman J in Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259 at [37]:
… The reasonable reader of [the scheme] must appreciate that the drafting of that document can give rise to a greater likelihood of infelicities in the language used than might occur in an Act of Parliament.
Non‑conforming uses are addressed in Pt 4 of LPS 6. Clause 4.8(a) provides that no provision in LPS 6 is to be taken to prevent the continued use of any land for the purpose for which it was being lawfully used immediately prior to the Gazettal date.
Clause 4.10 provides that where a non‑conforming use is discontinued for a period of six months the land must thereafter be used in a manner which is consistent with the provisions of LPS 6.
In relation to the Front Fence Proposal, cl 5.2.2 of LPS 6 provides that unless otherwise provided for, the development of land for any of the residential purposes dealt with by the Codes is to conform to the provisions of the Codes.
I have elsewhere noted that the provisions of a planning scheme, which have the force of law, can validly require development to comply with a policy instrument: Corp and Town of Cambridge [2019] WASAT 65; (2019) 97 SR (WA) 252 at [26] (Corp) citing Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; (2018) 232 LGERA 395 at [125] (Buss P, Murphy JA, Allanson J).
The Residential Design Codes
The Codes is a State planning policy prepared pursuant to Pt 3 of the PD Act. The purpose of the Codes is to provide a comprehensive basis for the control of residential development throughout Western Australia: cl 1.2 of the Codes; Corp at [28].
Pursuant to s 241(1)(a) of the PD Act and cl 67(c) of the deemed provisions, I am required to give 'due regard' to the Codes.
Clause 5.2.4 of the Codes deals with street walls and fences.
The relevant design principle (P4) requires front fences to be low or restricted in height to permit surveillance and enhance streetscape with appropriate consideration given to the need for:
a)noise attenuation required due to traffic impacts; and
b)privacy or noise screening adjacent to regional roads.
The deemed‑to‑comply requirement (C4) are front fences within the primary street setback area that are 'visually permeable' above 1.2 metres of natural ground level, measured from the primary street side of the front fence.
Appendix 1 of the Codes includes the following definition:
Visually permeable
In reference to a wall, gate, door, screen or fence that the vertical surface when viewed directly from the street or other public space has:
• continuous vertical or horizontal gaps of 50 mm or greater width occupying not less than one third of the total surface area;
• continuous vertical or horizontal gaps less than 50 mm in width, occupying at least one half of the total surface area in aggregate; or
• a surface offering equal or lesser obstruction to view.
The applicant's case
With respect, the applicant's case is not altogether easy to comprehend. The applicant made many complaints that fall outside of the Tribunal's jurisdiction. For example, the applicant was critical of the Shire's decision to rezone the Lots together with surrounding land from Rural to Rural‑Residential and then to Residential, and made detailed submissions about the loss of agricultural land as well as governance issues within the Shire. The applicant also submitted that the Shire has not been proactive in resolving disputes and that an officer of the Shire viewed his premises without first advising him. As explained to the applicant at the final hearing, these are not matters for the Tribunal.
The gravamen of the applicant's case, as it related to the Rural Use Proposal and to the asserted non‑conforming use right, is that since around 1956 the Lots (in particular Lot 121) have been used for rural pursuits.
In broad terms, the applicant submitted that the Lots formed part of a plantation of some kind in the 1950s and 1960s and thereafter have been used for rural purposes (evinced primarily by the presence of pasture grass from 1995) up until he purchased the Lots (in April 2003) and began using the land for the growing of pecan tree seedlings in July 2005 and thereafter Lot 121 (in particular) has been used for this purpose.
The applicant says the ultimate planning consequence of these events is that Lot 121 enjoys a non‑conforming use right to undertake rural pursuits.
It will be necessary to deal with the applicant's case in more detail later in these reasons.
The respondent's case
The respondent's case is, quite simply, that there are no non‑conforming use rights that attach to either Lot 120 or Lot 121. The respondent's case is that the Lots are required to be used in conformity with TPS 6.
The shade structures which form part of the Proposed Rural Use must therefore be refused as they are associated with what is now a prohibited use on Lot 121.
The applicant's evidence
The applicant's case is largely premised on aerial photographs from Landgate which were included in both the applicant's SIFC and the applicant's evidence at the final hearing.
The applicant did not file a written statement but instead requested that he be permitted to read a 28-page witness statement (including submissions and documentary evidence) at the final hearing. The applicant did not provide the Tribunal and the Shire with any prior notice of his intentions to present his evidence in this way.
Having regard to the Tribunal's objectives pursuant to s 9(b) of the SAT Act, the fact that the rules of evidence do not apply in the Tribunal (s 32(2) of the SAT Act) and that the proceedings arise under s 237A of the PD Act, I allowed the applicant to present his case in these terms. That is not to say, however, that I accept all of the applicant's evidence or submissions.
The applicant's case relied on the interpretation of a number of Landgate aerial photographs of the Lots stemming as far back as the 1950s.
The earliest photograph (from around 1956) shows the Lots (together with surrounding land) with rows of plantings which are, unmistakably, part of some agricultural use. Ms Jurmann, from the Shire, described this use as an orchard: ts 99, 15 August 2019. I agree with that description.
The applicant also included a Landgate aerial photograph from 1995 which the applicant says shows that pasture grass is present on the Lots. Ms Heather Percy, the applicant's expert, also gave evidence about the 1995 aerial photograph. Ms Percy's evidence was discussed at [66] ‑ [69] below.
The applicant also produced a rates notice from 2001 which stated that Lot 120 was being used for 'rural' uses for the purposes of assessing rates under the Local Government Act 1995 (WA) (LG Act).
The next aerial photograph of relevance produced by the applicant was from 9 December 2005. That photograph shows a dwelling house on Lot 120 and a small shade structure in the north‑east corner on Lot 121. Another aerial photograph relied on by the applicant is from 19 March 2006 and shows a larger shade sail structure in the north‑east corner of Lot 121.
The applicant also produced aerial photographs from 8 December 2012 and 15 December 2013 which show the shade sail structure removed. This was apparently due to damage arising from a major storm in 2011/12.
The applicant was asked by Mr Chadd Hunt, agent for the Shire, what happened to the rural pursuit during the period when the shade sail structure was removed, and whether he ceased growing trees. The applicant answered that he ceased growing trees for approximately two years: ts 69, 15 August 2019.
Along with the 'primary' rural use of tree production, the applicant also said he has retained some pastoral grass on Lot 121 from 2014 to 2019 and that is a further rural pursuit: ts 75, 15 August 2019.
In broad terms, the applicant's evidence was that the series of aerial photographs evinces a continuing rural use from around 1956 to 2019 in relation to pasture grass, and from around July 2005 to 2019 tree production for pecan trees.
The applicant also submitted that he undertook 'caltrop weed control' on the Lots from 31 August 2004 to 2019 but agreed that 'aerial photos cannot determine that fact': ts 14, 16 August 2019.
On more than one occasion I raised with the applicant that he was asking the Tribunal to make broad inferences - in terms of precise activities - from what these aerial photographs actually depict: ts 74 and 75, 15 August 2019.
Ms Percy's evidence
Ms Percy was called to give evidence about the 1995 aerial photograph. Her evidence on the 1995 aerial photograph was that:
[Lot 120] is covered in pasture, but I am unable to assess the type of pasture, its quantity or quality.
In her oral evidence Ms Percy explained that she is unable to ascertain if the pasture grass that was present in the 1995 aerial photograph was in support of livestock, the quality of the pasture or whether Lot 120 was being used in conjunction with surrounding land for rural purposes: ts 5 and 6, 16 August 2019.
In cross‑examination Ms Percy agreed that pasture grass does not need to be maintained annually: ts 6, 16 August 2019. She also agreed that a lot of pasture 'is just left to be … in Western Australia': ts 6, 16 August 2019. She also agreed that it could be pasture grass that had been left from years ago: ts 6 and 7, 16 August 2019. Ms Percy also advised that pasture grass is usually planted in association with livestock because people 'want to get an economic return from [it]': ts 7, 16 August 2019.
In relation to the Front Fence Proposal the applicant said that the condition is not required for three reasons. Firstly, that the current spacing of the slats is permissible. Secondly, that there are other front fences in the locality that are not visually permeable; including two on Tankard Street. Thirdly, that the Shire does not strictly enforce the requirements of the Codes.
The respondent's evidence
Ms Jurmann's evidence
Ms Jurmann gave planning evidence on behalf of the Shire. Ms Jurmann explained that retrospective approval for the shade houses was refused because:
… the use was not permitted, so the purpose of the shade houses were for a rural pursuit, for the growing of the nut seedlings which were not permitted in the residential zone. The applicant hadn't proved that there was nonconforming use rights existing for that property, so the decision was made to refuse that part of the application.
(ts 95, 15 August 2019)
Ms Jurmann also advised that the shade houses were not assessed under the Codes because they are not a residential development per se; they are structures associated with a rural use: ts 98, 15 August 2019.
Ms Jurmann did not consider that the presence of pasture grass (such as in the 1995 aerial photograph) is, of itself, evidence of a rural use in planning terms: ts 99, 15 August 2019. Ms Jurmann regarded the aerial photographs of Lot 121 with pasture grass as evidence that Lot 121 is, in planning terms, vacant which is not, of itself, a land use: ts 99, 15 August 2019. The following exchange took place:
JURMANN, MS: … I think there has been some references today [in] regards to rural activities which is not a rural pursuit. A rural pursuit is a defined term in the local planning scheme, and the “rural pursuit” term refers to the growing of trees, amongst a couple of other activities.
HUNT, MR: … aerial photography showing pasture grass on the land is not evidence of a use, in your opinion?
JURMANN, MS: Not in my opinion.
(ts 100, 15 August 2019)
Ms Jurmann's opinion was that by the time the applicant erected the shade structures in 2005 for the purposes of tree production, Lot 121 was zoned 'Rural Residential' and approval was required for such a use (being a Rural Pursuit): ts 99, 15 August 2019.
In relation to the Front Fence Proposal, Ms Jurmann observed that the existing front fence does not comply with the deemed‑to‑comply provisions of cl 5.2.4 of the Codes in relation to visual permeability. The condition to provide a minimum spacing between the slats of 50 millimetres was imposed to allow for visual surveillance and to enhance the streetscape.
Existing and non‑conforming use rights
The applicant's submissions at various points referred to existing and non‑conforming use rights. The applicant is correct in that he does rely on existing use rights which are non‑conforming. However, as a general observation, there is much overlap, but also some confusion, between these two planning terms as they apply in Western Australia.
That confusion is not helped by the fact that in some other Australian states an existing use right is, in effect, a non‑conforming use right. For example, in New South Wales pursuant to Div 4.11 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) an existing use is defined to mean a once lawful use that has become prohibited: s 4.65 of the EPA Act.
However, in Western Australia non‑conforming use rights are, in effect, a subset of existing use rights. In Western Australia, every non‑conforming use right is an existing use right but not every existing use right is non‑conforming. I will explain that further.
Any lawful development enjoys existing use rights. Most existing use rights derive from planning approvals that have been granted. However, sometimes the existing use right is in relation to a use that commenced before planning controls were enacted: Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529; (1964) 10 LGRA 147 (O'Keefe); Turnbull Group v North Sydney Council [1998] NSWLEC 253; (1998) 101 LGERA 354 (Sheahan J).
Where changes to the planning framework have the effect that some existing uses are no longer capable of being approved (if a new approval was sought), then those existing use rights become non-conforming use rights.
In essence, existing use rights (including non-conforming use rights) enable the landowner to undertake the range of activities authorised by a planning approval. The limit or extent of those existing use rights are the point at which a further development approval is required for any 'new' or what may be termed 'unauthorised' activities: O'Keefe at 534; 150 (Kitto J with whom Menzies and Owen JJ agreed); see also City of Mitcham v Fusco [2002] SASC 423; (2002) 124 LGERA 196 at [34] (Bleby J with whom Doyle CJ and Lander J agreed).
Arguments about existing use rights generally arise in enforcement or compliance actions whereby a planning authority asserts that there has been a change in the use of land such that a new development approval is required. The planning question that arises is whether the new activities fall within the existing use rights or whether a new approval is needed for the 'new' activities: Prestige Car Sales Pty Ltd v Walkerville & Shuttleworth Town Corporation (1979) 20 SASR 514; (1979) 42 LGRA 80 at 86 (Wells J).
These concepts are best illustrated by way of example. In Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88 (Snowdale Holdings) a large scale poultry operator trucked eggs from other farms to its Bennett Springs facility in the Swan Valley for the purposes of egg production. One of the issues for the Tribunal, in the context of proceedings arising under s 255 of the PD Act, (arising from a written direction under s 214 of the PD Act), was whether the Bennett Springs facility was entitled to process eggs received from other farms.
As part of its assessment, the Tribunal reviewed and considered the range of activities authorised (and not prohibited) by the planning approvals that applied to the Bennett Springs facility. Snowdale Holdings is a clear example of a case that deals with use rights that are existing, but not non‑conforming.
As stated, where the planning framework changes to make an existing use no longer permissible, at that point the existing use right becomes a non-conforming use right: O'Keefe at 533 ‑ 534; 149 ‑ 150; Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182 at [22] ‑ [35] (McLure JA, Pullin JA and Le Miere AJA) (Re Shire of Carnarvon).
If the applicant is correct in what he asserts, the use right for Lot 121 was an existing use right which became a non‑conforming use right upon the gazettal of TPS 6 on 21 August 2013.
The policy basis for, and nature of, non-conforming use rights
The policy basis for protecting non-conforming use rights is the inequity that would arise from existing uses being made to comply with new planning laws. Non-conforming use rights also respect the value of land ownership in our society. It is also the case that 'a neighbourhood cannot suddenly be changed by the stroke of the planner's zoning pencil': North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50; (1989) 67 LGRA 344 at 350 ‑ 351 (Kirby P); see also Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWLEC 219; (2009) 173 LGERA 155 at [57] (Biscoe J).
In the case of non-conforming use rights, it is necessary to identify the 'purpose' for which land is being used at the time the activities in question became non-conforming. That is made clear by cl 4.8(a) of LPS 6.
In the case of O'Keefe, at the time the by‑laws changed the land in question was zoned residential, but being used for the purpose of pottery making. Pottery-making was found to be a light industrial use pursuant to the relevant by-law. The High Court held that the land could continue to be used for pottery-making but not for the purposes of any other activities within light industry category of uses: O'Keefe at 533 ‑ 534; 149 ‑ 151 (Kitto J); see also Ex parte Humphrey at [26] (McLure JA).
The High Court's analysis in O'Keefe evinces the balancing of the rights of relevant landowners to obtain the full benefit of their non‑conforming use rights against the right of the planning authority to properly enforce the objectives of the planning framework. That is why the focus is on identifying the 'purpose' of the land use which forms the basis of the non-conforming use right and ensuring it is not categorised too widely: Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 309 ‑ 310 (McHugh JA).
So long as the purpose for which land is being used is unaltered, the non-conforming use right will continue to have effect: Norman v Gosford Shire Council [1975] HCA 15; (1975) 132 CLR 83; (1975) 31 LGRA 368 (Barwick CJ, Mason and Jacobs JJ).
The applicant's asserted non-conforming use rights
In this instance, the applicant claims that Lot 121 enjoys use rights for the purpose of a 'rural pursuit': ts 19, 15 August 2019; ts 12, 16 August 2019. However, based on O'Keefe the applicant's characterisation of purpose is too wide.
The purpose needs to be more specific and reflect the activities that form the basis of the non-conforming use right. To my mind, taking into account O'Keefe, the activities that the form the basis of the applicant's asserted non-conforming use rights on Lot 121 are for 'tree production'.
Analysis and disposition
The Rural Use Proposal
In the context of the Tribunal, it is generally not advisable ‑ unless required by an enabling Act ‑ to refer to any particular burden of proof or any party bearing an 'onus' or even a 'practical onus': Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 at [115] (Buss P, Murphy JA and Mitchell JA).
In the context of the PD Act, where an applicant asserts that the land that they own enjoys non-conforming use rights, the effect of which is that it is not necessary to comply with the current planning framework, it is for the applicant to satisfy the Tribunal that the correct and preferable decision is that such rights exist and, on account of those rights, approval ought to be granted.
In the context of these proceedings, it is for the applicant to persuade me that the correct and preferable decision is that he enjoys an existing use right (which is now non‑conforming) to undertake rural pursuit activities on Lot 121.
For the following reasons, I am not satisfied that the applicant enjoys non-conforming use rights that allow him to undertake rural pursuits (tree production) on Lot 121. The applicant has not provided me with any probative evidence that, as at 31 August 2004, Lot 121 was being put to an active rural pursuit.
Pasture grass is not evidence of an active rural pursuit
In relation to the applicant's argument that the presence of pasture grass on Lot 121 in 1995 (which Ms Percy confirmed and whose evidence I accept), based on the materials before me, I do not regard the presence of pasture grass as evidence of an active rural activity.
Ms Percy's evidence was that pasture grass may just be left and is not required to be maintained. The presence of pasture grass may be evidence of a past rural use. Furthermore, Ms Percy was unable to identify what rural activity the pasture grass (that existed in 1995) was related to, if any.
Ms Percy's evidence was that it was common that pasture grass was used in relation to the keeping of livestock. However, there is no evidence that the Lots have ever been used in connection with the keeping of livestock. In fact there is no explanation of the presence of the pasture grass at all. The applicant's case proceeds from the premise that the mere existence of pasture grass is itself evidence of productive rural uses. I do not agree.
The fact that the Lots were for a long period rural land and that they had been used for rural activities at certain points says nothing about the active rural use, if any, that was being made on Lot 121 as at 31 August 2004, even if pasture grass was still present.
I therefore find that the mere presence of pasture grass on Lot 121 in 1995 is not evidence of a productive rural use operating at 31 August 2004. In the language of O'Keefe, I find that the presence of pasture grass is not indicative that the Lots were being put to any particular rural purpose as at 31 August 2004.
It is also the case that I do not accept the applicant's statements that he undertook weed control as evidence of a productive rural use. Such practices, which I accept may have occurred, are general land management practices that need not be directed to, or connected with, an active rural use.
Rural pursuit activities on Lot 121 as at 31 August 2004
The date of 31 August 2004 is critical in these proceedings. This is because if the applicant was not undertaking a rural pursuit as at 31 August 2004 ‑ the date at which such activities were no longer a use permitted as of right ‑ his argument that he enjoys non‑conforming use rights necessarily fails.
This is so because it is not contested that the applicant has never sought approval for rural pursuit activities (or any structures used for rural pursuits) on Lot 121 under TSP 5 (when such uses were discretionary). In order for the applicant's current use of Lot 121 for tree production to be lawful, he must have been using Lot 121 for the purposes of a rural pursuit as at 31 August 2004.
The applicant's case focused on a Landgate aerial photograph from 9 December 2005 which shows a shade structure erected on Lot 121 which he says, evinces that the use of rural pursuit (of tree production) had commenced by that date. December 2005 is almost 15 months after the commencement of TPS 5.
However, in my view, there is a more relevant aerial photograph from Landgate. That aerial photograph can be found at page 531 of the Shire's s 24 Bundle (as well as Ms Jurmann's witness statement) and is dated 12 December 2004. That aerial photograph ‑ taken only three months after TPS 5 commenced ‑ shows no shade structures nor any evidence of any active rural pursuit taking place on Lot 121.
After the hearing, I invited both parties to make submissions on the Landgate aerial photograph of 12 December 2004 given that I regard it as significant. The Shire's submission was that the aerial photograph of 12 December 2004 shows that Lot 121 is idle. The applicant's submission was that he purchased the Lots as rural land and that the use of the Lots did not change until he commenced his tree production activities. Therefore, there is a continuity of use. In terms of the aerial photograph of 12 December 2004 the applicant says three rural activities were occurring. These being pasture grass, biodiversity security in the form of rural fencing and weed control.
I do not accept the applicant's submission that the aerial photograph of 12 December 2004 evinces three rural activities. There may be pasture grass present but, as I have explained, I am not satisfied that the presence of pasture grass is proof of an active rural use. Nor do I accept that the aerial photograph shows either weed control activities or rural fencing.
I accept the Shire's submission that the aerial photograph of 12 December 2004 shows that Lot 121 was idle and vacant and, by that time, was zoned for rural-residential uses. It follows that I am not satisfied that there is any evidence that supports the applicant's case that, as at 31 August 2004, he was using Lot 121 for the purposes of tree production.
Indeed, the applicant agreed that 'during the period between 31 August 2004 to July 2005, pecan nut seedlings were not growing on [Lot 121]': ts 69, 15 August 2019. However, in response to this, the applicant submitted that the provisions relating to non‑conforming use rights are 'oppressive': ts 69, 15 August 2019. He also referred to there being a 'primary rural activity', being the pasture grass present on Lot 121 between 31 August 2004 and July 2005, in support of his argument.
I have already set out my findings in relation to the issue of pasture grass.
On the question of whether the provisions relating to non‑conforming use rights in LPS 6 are 'oppressive', that is not a matter for the Tribunal. That is a question for the Shire in its capacity as the responsible planning authority for this municipal district.
However, I note that the provisions within LPS 6 relating to the non‑conforming use rights aligns closely with most local planning schemes across Western Australia and is also broadly consistent with the model provisions found in Sch 1 to the LPS Regulations.
On the applicant's case, the activity of tree production and the associated erection of shade structures did not commence until July 2005, some 11 months after the commencement of TPS 5: ts 20 and 22, 15 July 2019. It follows that the applicant's assertion that the non‑conforming use rights for a rural pursuit necessarily fails.
Tree production on Lot 121 was not a lawful use as at 21 August 2013
In order to have a non‑conforming use right for tree production at the time that such uses became prohibited (being the commencement of LPS 6 on 21 August 2013) the applicant not only needed to be using Lot 121 for such purposes as at 21 August 2013, but such uses also needed to be lawful or authorised.
Clause 4.8 of LPS 6 operates to protect 'the continued use of any land for the purpose for which it was being lawfully used immediately prior to the Gazettal date' (emphasis added).
If (subject to [121] ‑ [126] below) at 21 August 2013, Lot 121 was being used for the purposes of a rural pursuit, such uses were not lawful.
As outlined above, in order to be lawful or authorised the applicant had to either have:
a)commenced a rural pursuit while such uses were permitted as of right (that is, prior to 31 August 2004) and been using Lot 121 for tree production as at 21 August 2013; or
b)sought and obtained approval for a rural pursuit and been using Lot 121 for the purposes of tree production while such uses were discretionary (that is, while TPS 5 was in effect between 31 August 2004 to 21 August 2013).
The applicant did neither. As stated, I am not satisfied that he had not commenced any rural pursuit activities prior to 31 August 2004, nor did he obtain planning approval for such uses ‑ as he was required to do under TPS 5 ‑ when he commenced such uses in July 2005.
It is also the case that regardless of any existing or non-conforming use rights, the shade house structures erected on Lot 121 required approval as these involved the physical development of land and were clearly 'development' in the sense contemplated by s 4 of the PD Act.
The applicant had ceased tree production activities when LPS 6 commenced
As set out at [60], there are aerial photographs from 8 December 2012 and 15 December 2013 which show the shade structures on Lot 121 had been removed.
The applicant's evidence was that following a major storm in 2011/12 he ceased the production of trees on Lot 121 for a period of approximately two years: ts 69, 15 August 2019.
Given the timespan of the aerial photographs (8 December 2012 to 15 December 2013) that show that tree production on Lot 121 had ceased, the applicant was plainly not using Lot 121 for the purposes of a rural pursuit immediately before the Gazettal of LPS 6 on 21 August 2013.
At the time that LPS 6 commenced, Lot 121 was not being used for the purposes of tree production. Clause 4.8(a) of LPS 6 only operates to preserve the continuation of uses that were being lawfully undertaken immediately prior to the commencement of LPS 6.
It follows that, as a matter of law, the applicant never had a non‑conforming use right because his evidence establishes that he was not using Lot 121 for the purposes of tree production immediately before LPS 6 came into effect.
The applicant's subsequent re-commencement of tree production activities on Lot 121 at some point after 21 August 2013 was not a continuation of a lawful non‑conforming use.
The rates notice
The applicant's reliance on a rates notice from 2001 that states that the Lots are being put to a 'rural use' is not, of itself, proof of the existence of any active rural use. The basis on which land may be valued for the purposes of issuing a rates notice under the LG Act cannot be taken as positive evidence of a productive rural use.
Land that is zoned 'Rural' ‑ which the Lots then were - but which is not being actively used is still rural land. The rates notice does not support the applicant's argument that Lot 121 enjoys non‑conforming use rights for a rural pursuit.
Conclusion on the Rural Use Proposal
The various arguments put forward by the applicant do not persuade me that the correct and preferable decision is that he enjoys non‑conforming use rights for tree production (or indeed any rural pursuit) on Lot 121.
In my view, the rural pursuit activities (being the purpose of tree production) are now prohibited on Lot 121. The shade houses are therefore associated with a use that I do not consider is lawful. The erection of the shade houses must therefore be refused.
It follows that the correct and preferable decision is to affirm the Shire's decision to refuse the Rural Use Proposal.
The Front Fence Proposal
The Codes include detailed requirements for front fences in residential areas. The Lots are located in what is now a residential locality. Element 5.2.4 of the Codes requires front fences to be visually permeable to allow for surveillance and to enhance streetscape.
At the final hearing of this matter, I undertook a site view of the Lots and Tankard Street with the parties. I observed the front fence. It is not visually permeable and prevents both surveillance of Tankard Street and the applicant's dwelling.
In relation to the Front Fence Proposal the applicant submitted that there are other front fences that are non‑compliant on Tankard Street. That may be so. However, this is an area that has only been zoned for residential purposes since 2013. It is not known when these front fences were constructed and the applicable zoning and development controls that applied. The presence of an existing development that would now be regarded as non‑compliant, in what is a new residential area, is not a sound basis on which to not apply the relevant planning policies.
The existing front fence does not comply with the deemed‑to‑comply provisions of the Codes. Nor is it a front fence that is 'low or restricted in height to permit surveillance and enhance streetscape' such that it could be said to comply with the design principle (P4) of the Codes. As noted, cl 5.2.2 of LPS 6 requires residential development to conform to the requirements of the Codes.
Clause 67(n) of the deemed provisions requires that I give due regard to the 'the amenity of the locality'. Amenity is defined in cl 1 of the deemed provisions to include the future or planned amenity of the locality.
Clause 67(m) of the deemed provisions also requires me to give due regard to the question of whether the front fence is compatible with its context by way of, inter alia, its appearance.
In my view, the existing front fence does not contribute positively to the streetscape and amenity of what is an emerging residential area of Northam.
The Lots, together with surrounding land, are zoned residential. Despite its rural heritage, this area is planned to become a residential area. That transition in land use is clearly underway, but it will take time. The future and planned amenity of the locality is residential.
The front fence, in effect, shuts off the dwelling on Lot 120 from Tankard Street. In my view, that is not an appropriate planning outcome in what is now a residential context. I consider that there needs to be some visual relationship between the dwelling on Lot 120 and Tankard Street. I do not regard the existing front fence as an appropriate front fence for its residential context.
While I accept the applicant's submission that some other front fences may also be non-compliant with the Codes, those fences are not before me. I have no details as to when these fences were constructed and the planning framework that applied to them.
The applicant's submission that the Shire does not strictly enforce the Codes is a vacuous statement. How the Shire does or does not apply the Codes in relation to other proposals is not before me in any substantive way. However, I note that cl 5.2.2 of LPS 6 requires residential development to conform to the requirements of the Codes.
Having regard to the various planning considerations, I accept the evidence of Ms Jurmann that the Shire's condition will achieve some visual permeability for the Front Fence Proposal and will result in a better streetscape outcome. The condition is appropriate having regard to the Codes and cl 67(n) and cl (m) of the deemed provisions.
The applicant has not provided me with any planning justification that would suggest the front fence, as constructed, complies with the Codes or is otherwise appropriate from a planning perspective. It is also the case that the applicant did not call any planning evidence that would suggest Ms Jurmann's opinion in this regard should be doubted.
I accept that the applicant will be inconvenienced by having to do remedial works on the fence that has been constructed. However, the applicant erected the front fence without approval. It is an established principle that any inconvenience in undertaking remedial works, to ensure a structure erected without approval complies with the relevant planning controls, is not a relevant consideration: Burnett and Town of Cambridge [2006] WASAT 29 at [20]; Taddei v City of Stirling [2004] WATPAT 85 at [19] ‑ [22]; Swan Cove Holdings Pty Ltd v City of Subiaco [2001] WATPAT 7 at [48].
Conclusion
For the foregoing reasons, the correct and preferable decision is to affirm the Shire's decision to:
a)refuse the Rural Use Proposal; and
b)impose a condition on the Front Fence Proposal to increase the size of the gaps between slats to a minimum of 50 millimetres.
Orders
1.The Shire of Northam's decision of 10 September 2018 to refuse the shade house structures on Lot 121 Tankard Street, Northam is affirmed.
2.The Shire of Northam's decision of 10 September 2018 to approve the street wall proposal subject to a condition that the street wall is to be modified to provide horizontal gaps of not less than 5 centimetres (50 millimetres) is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR S WILLEY, MEMBER
8 NOVEMBER 2019
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