Saunders and Shire Of Broome
[2011] WASAT 82
•27 MAY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SAUNDERS and SHIRE OF BROOME [2011] WASAT 82
MEMBER: MR J JORDAN (MEMBER)
HEARD: 9 MAY 2011
DELIVERED : 27 MAY 2011
FILE NO/S: DR 240 of 2010
DR 128 of 2011
BETWEEN: DEREK SAUNDERS
Applicant
AND
SHIRE OF BROOME
Respondent
Catchwords:
Town planning Development Building used for ablutions and storage Notice issued under s 214 Planning and Development Act 2005 (WA) Direction to remove the building and other structures on the site Application for review of notice Application for retrospective planning approval of the building with ablution and storage Refusal Rural agriculture zone Approved rural pursuit of nursery and fruit trees on site Unauthorised caravans and workers' accommodation removed from site Relevance of workers' accommodation policy Sanitary facilities for seasonal workers Need for storage and refrigeration of produce grown on site
Legislation:
Occupational Safety and Health Regulations 1996 (WA), cl 3.20(2)(a)
Planning and Development Act 2005 (WA), s 214, s 214(2), s 214(3), s 252(1), s 255(1), s 255(2)
Shire of Broome Town Planning Scheme No 4, cl 4.22.1, cl 8.2, Sch 1
State Administrative Tribunal Act 2004 (WA), s 27, s 29(3), s 51(1)(b)
Result:
DR 240 of 2010 allowed in part. Directions in the notice issued under s 214 Planning and Development Act 2005 (WA) varied to delete from the list of buildings to be removed, the building used for storage and ablutions as part of the approved rural pursuit on the site
DR 128 of 2011 allowed in part. Conditional retrospective planning approval granted for the building used as ablutions and storage as part of the approved rural pursuit on the site
Category: B
Representation:
Counsel:
Applicant: Mr K Williams (Town Planner)
Respondent: Ms M Teoh and Mr N Pretorious (Town Planners)
Solicitors:
Applicant: Whelans Town Planning Consultants
Respondent: Shire of Broome
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved two applications for review, both concerned with a rural agricultural lot at a locality called 12 Mile in the Shire of Broome. The first application was for review of a direction issued by the Shire of Broome for certain uses on the lot to cease and for particular buildings to be removed, particularly buildings that could be used for workers' accommodation.
The second application was for review of the refusal of an application for retrospective planning approval for a building on the lot which contained ablution and laundry facilities and storage areas.
The Shire of Broome refused the application for retrospective planning approval for the building because it considered the ablution facilities were excessive and would be used as part of workers' accommodation. The Shire also considered there was sufficient storage for the approved rural pursuit elsewhere on the site.
In respect of the review of the refusal of the planning application, the Tribunal found that the building and its use as ablutions and storage was consistent with a building normally associated with a rural pursuit as provided for under the town planning scheme. The Tribunal granted planning approval for the building and its use, subject to conditions, including that the laundry facilities be removed.
In respect of the direction that certain buildings be removed, given its decision on the application for planning approval, the Tribunal varied the notice by deleting from the list of buildings to be removed the building used for ablutions and storage associated with the approved rural pursuit on the site.
Introduction
Mr Derek Saunders (applicant) lodged applications for review of two decisions made by the Shire of Broome (respondent or Council) in respect of development at Lot 300 Kanagae Drive, 12 Mile, Roebuck, Shire of Broome (site). The two applications for review were:
1)DR 240 of 2010: brought by the applicant pursuant to s 255(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of directions issued by the Council pursuant to s 214(2) and s 214(3) of the PD Act (s 214 notice). The s 214 notice required that the applicant remove from the site caravans and certain listed buildings. One building on the list contains ablution and laundry facilities and storage areas; and
2)DR 128 of 2011: brought by the applicant pursuant to s 252(1) of the PD Act for review of the decision of the respondent to refuse an application for retrospective planning approval for the building containing the ablution and laundry facilities and storage areas (building under review).
These two applications for review have remained separate proceedings but have been heard together, pursuant to s 51(1)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Site and locality
The site is at a locality known as 12 Mile which is approximately 18 kilometres northeast of Broome. The site has an area of 1.8 hectares with a frontage of 144 metres to Kanagae Drive at the eastern boundary and a depth of 125 metres. The site is flat and has fruit trees, mostly near the road frontage. In the southwest corner of the site there is a single story dwelling. In the northwest corner is a shadehouse about 7 metres wide and 30 metres long. Immediately abutting the south of this is an area of the same dimensions without cover but containing varieties of potted plants.
Between the area of plants and the western, rear boundary is an old and unlicensed bus converted to a motorhome containing sleeping and living areas, and a kitchen. A metal awning is attached to the side. Adjacent to the southern end of the bus is the dongatype transportable subject to the s 214 notice issued by the Council.
About 15 metres to the east of the shadehouse area is the building under review which contains the ablutions and storage areas. This building is orientated northsouth and is about 4 metres wide and 8 metres long. At the northern end of the building there are two separate ablution areas with separate doors and each containing a toilet and a shower. At the southern end of the building is an area of 3 metres by 3.8 metres, currently with a washing machine and used for storage. Between this southern room and the ablution rooms is another room of 1.7 metres by 3.8 metres containing freezers and used for storage.
About 30 metres to the south of the ablution block, adjacent to the southern side of the central driveway to the site, are two shipping containers joined by a metal roof under which is an open-sided area. A caravan and various pieces of machinery are stored under this metal roof. The two containers are used for storage of chemicals and other goods and machinery associated with the rural pursuit carried out on the site.
The location of the site, 12 Mile, is an agricultural area of about 90 lots which range in size from about 1 hectare to 25 hectares. Most of the lots are in the order of 2 hectares to 5 hectares. Some lots appear unused while others are used for a variety of agricultural purposes including fruit trees and nurseries. A café on one lot appears to be the only urban facility at 12 Mile.
The Tribunal viewed the site accompanied by the applicant and representatives of the respondent.
Planning framework
The site is zoned 'Rural Agriculture' under the Shire of Broome Town Planning Scheme No 4 (TPS 4). Under the zoning table of TPS 4, the use 'Rural Pursuit' is a 'P' use in the rural agriculture zone, which means that it is a use permitted by TPS 4 provided it complies with relevant development standards. The use 'Staff Quarters/Workers Accommodation' is a 'D' use which is a use not permitted unless discretion is exercised and approval granted.
Clause 4.22.1 of TPS 4 sets out the aims and the objectives of the rural agriculture zone, as follows:
4.22.1.1The aim of the zone is to provide for the sustainable use of land for animal husbandry, crops, horticulture and to protect the long[]term productive capacity of agriculture land from incompatible land uses (including subdivision).
…
4.22.1.2Council's objectives will therefore be to:
(a)ensure that land is maintained for productive agriculture/horticulture activities with associated rural activities; and
(b)allow small scale tourist related activities which may be associated with a rural agricultural activity; and
(c)recognise the limitation on groundwater supply …
Clause 8.2 of TPS 4 requires that any development more than a single dwelling in a residential zone requires development approval.
Schedule 1 of TPS 4 includes the following definitions:
[R]ural pursuit means the use of land for any of the purposes set out hereunder and shall include such buildings normally associated therewith:
(a)the rearing or agistment of goats, sheep, cattle or beasts of burden;
(b)the stabling, agistment or training of horses;
(c)the growing of trees, plants, shrubs, or flowers for replanting in domestic, commercial or industrial gardens;
(d)the sale of produce grown solely on the lot;
(e)general agriculture, farming, grazing and cropping.
…
Staff Quarters/Workers Accommodation means shared self[-]contained living accommodation (separate to a single dwelling) used for the accommodation of persons directly employed in an approved activity carried out on the lot.
The respondent also made reference to its policy Local Planning Policy 8.4 Additional Accommodation in General Rural, Rural Agriculture and Rural Living Zones (Policy 8.4). Policy 8.4 includes the following definition:
'Staff quarters/workers accommodation' shared self-contained living accommodation (including kitchen, living rooms and laundry/ablution facilities) separate to but on the same site as, a single house, for persons directly employed and, engaged in rural pursuits on the property.
Background
On 19 July 2010 the Council served on the applicant the s 214 notice, which is more fully the direction pursuant to s 214(2) and s 214(3) of the PD Act. The s 214 notice included the following:
WHEREAS:
…
DThe development described in Item 2 of the Schedule has been undertaken in contravention of TPS4.
…
TAKE NOTICE THEREFORE:
1You are hereby required to immediately stop and not recommence the Development and within 65 days of the service of the Direction remove the Development and to restore the Land as nearly as practicable to its condition immediately before the Development started, to the satisfaction of the Shire.
…
SCHEDULE
…
Item 2: The Development
The placement of caravans and of the following
a.Ablution block;
b.Solid annex[e] connected to a caravan;
c.Large metal development resembling a shed comprising two shipping containers and connecting roof;
d.Donga[-]type transportable attached to bus;
e.Above ground swimming pool and permanent shade structure;
f.Large shade house.
On 13 August 2010 the applicant filed with the Tribunal an application for review of the s 214 notice (DR 240 of 2011).
In November 2010 the applicant lodged with the Council an application for retrospective planning approval for development on the land. The application was for approval of the 'existing nursery (consisting of a shadehouse and sea containers used for storage)' and 'existing staff quarters (including ablutions and laundry)'. The staff quarters, or workers' accommodation, was to include the caravan and attached fabricated solid annexe on the site.
At its meeting of 15 December 2010 the Council resolved, as set out in its decision letter of 21 December 2010 addressed to the applicant:
That Council
A.Recognises that the Caravan accommodation on the property ceased in accordance with Council's directions notice and that the property will not be used for accommodation purposes unless a subsequent planning approval is granted for that purpose.
B.Approves the planning application 2010/154 for a 'Rural Activity' as submitted by Derek Saunders on Lot 300 (No 117) Kanagae Drive, Roebuck, subject to the following conditions:
1.Development must be carried out in accordance with the plans stamped received and dated 4 October 2010 and 18 November 2010 submitted with the application as approved by Council.
2.If the development the subject of this approval is not substantially commenced within a period of 3 years from the date of the approval, the approval will lapse and be of no further effect. Where an approval has lapsed, no development must be carried out without the further approval of Council.
3.The development of Rural Activity consists of a plant nursery (including shade house) and associated storage area consisting of two sea containers and a roof as marked 3, 4 and 5 on Attachment 2.
C.Refuses the application for Workers Accommodation being the caravan, annexure [sic] and ablution block (marked as 6, 7 and 8 on Attachment 2) on the basis that these do not comply with Local Planning Policy 8.4.
…
On the orders of the Tribunal the Council reconsidered its decision at its meeting of 17 February 2011 and the resolution passed included the following:
…
2.As no further information has been provided there is no basis for any conclusion other than to confirm the Council resolution of 15 December 2010.
The applicant then applied to the Tribunal for review of the Council's decision (DR 128 of 2011). In the review, the applicant applied only for planning approval for the building under review, which houses the ablution facilities and storage areas.
Consistent with the application in DR 128 of 2011, the applicant amended DR 240 of 2010 seeking only to have the s 214 notice amended to delete from the list of buildings to be removed from the site, the building under review, with its ablutions and storage areas, identified on the list as item 2a 'Ablution block'.
Discussion and conclusions
DR 128 of 2011:
Review of the Council decision on the application for retrospective planning approval
Mr Keith Williams, a town planner who appeared for the applicant, said that there was no longer workers' accommodation on the site because the caravan and attached 'solid annexe' had been removed.
Mr Williams said the application before the Tribunal was for retrospective planning approval of the building under review, which would only be used as ablutions and storage in association with the approved rural pursuit on the site. The applicant said he would accept a condition of approval that required that the laundry facilities be removed from the building. Mr Williams said the building under review no longer constituted workers' accommodation and this made Policy 8.4 no longer relevant.
The applicant said that the ablution facilities in the building were provided for the convenience of seasonal workers employed on the site, given the distance from public ablutions. In support of providing the ablutions, Mr Williams referred to cl 3.20(2)(a) of the Occupational Safety and Health Regulations 1996 (WA) which require that an employer provide for persons working at the workplace 'reasonable sanitary facilities'. He considered the ablutions provided were reasonable, even though a shower was not required for the 'sanitary facilities', because there would be both male and female workers.
The respondent said it would have no concern about ablutions being provided for workers employed in the rural activity on the site, to the extent of a toilet. The respondent was concerned, however, that the toilet and shower facilities provided were of a scale associated with workers' accommodation and so should be removed.
Mr Williams said that the part of the building under review to be used as storage had always been used for the refrigeration and storage of produce grown on the site. He considered the use of the building for this purpose was reasonable because the two shipping containers were used for housing and maintaining machinery and for storage of materials, including chemicals, which could not be stored with produce.
The respondent said the storage space included in the building under review was unnecessary. This was because the space in the approved storage containers and under the connecting roof was adequate for the rural activity approved on the site.
In respect to the bus converted to a motorhome, the applicant said that he had originally planned to travel in it, but had since let the vehicle licence lapse. A worker had lived in it some time ago but recently workers had only used it for making tea and relaxing during 'smoko'. The caravan under the roof between the storage containers was his personal caravan and not used for accommodation by any other person.
The respondent referred to the history of the use of the site by caravans and the use of buildings as workers accommodation in conflict with TPS 4 and Policy 8.4. The respondent acknowledged that the caravan and attached annexe listed in the s 214 notice had been removed, but was concerned that on the site there was the converted bus, equipped with sleeping and living areas and a kitchen, and a caravan currently parked under the roof between the two storage containers. It was the concern of the respondent that the site still had potential for use as workers' accommodation with the use of the ablutions in the building under review.
It was the respondent's submission that the ablutions and the storage space in the building under review were not required for the approved rural pursuit. Planning approval should not therefore be granted and the building should be removed from the site.
The Tribunal has concluded that the building under review, if used appropriately, could be allowed as a building 'normally associated' with the approved rural pursuit, as provided for under the definition of rural pursuit in TPS 4.
The Tribunal notes that it is required that workers employed in the approved rural pursuit are provided with sanitary facilities. The Tribunal has formed the view that the ablutions, while more than the minimum required, are not unreasonable for day workers, particularly given the distance of the site from Broome and the tropical location. The Tribunal considers that an approval of the use of the ablution facilities by day workers cannot be misconstrued as an approval for use of any part of the site for workers' accommodation, given the refusal of the use of the site for this purpose. The use of the building under review as part of workers' accommodation would be in contravention of TPS 4.
The laundry facilities in the building under review are no longer required because no workers' accommodation is permitted on the site
The Tribunal is further of the opinion that the additional storage in the building under review is not excessive. It is considered appropriate that storage of machinery and chemicals be separate from the storage of produce in the circumstances of the rural pursuit that has been approved.
Section 27 of the SAT Act provides that the review of a reviewable decision 'is by way of a hearing de novo'. That is, in review matters such as the present one, the Tribunal sits in the shoes of the decisionmaker and is effectively considering the decision on the application for retrospective planning approval of 15 December 2010 and confirmed 17 February 2011.
Section 29(3) of the SAT Act provides that the Tribunal, on review, may make a decision that affirms or varies the decision being reviewed or sets aside the decision being reviewed and substitutes its own decision.
In support of its conclusion on the building under review, the Tribunal has decided, pursuant to s 29(3) of the SAT Act, to vary the respondent's decision of 15 December 2010 on the application for retrospective planning approval. The Tribunal has decided to vary the December 2010 decision by adding conditions that grant planning approval for the use of the building under review as ablutions for day workers only and for storage associated with the approved rural pursuit on the site. A further condition would require the laundry machines and fittings to be removed from the site.
In respect of the respondent's concern about the use of the applicant's personal caravan and the bus converted to a motor home parked on the site, the Tribunal has concluded that it would be appropriate to vary the respondent's refusal of the use of the site for workers' accommodation at 'C' in its decision of 15 December 2010 to include these two vehicles. As staff quarters, workers' accommodation and additional accommodation are not permitted on the site, the only relevance of Policy 8.4 in this matter has been to assist in understanding what these uses entail.
DR 240 of 2010:
Review of the directions notice issued pursuant to s 214 of the PD Act
Item 2 of the s 214 notice listed the buildings required to be removed from the site. The 15 December 2010 decision of the respondent, however, granted retrospective planning approval for item '2c Large metal development resembling a shed comprising two shipping containers and connecting roof' and item '2f Large shade house'. These items can now be deleted from the s 214 notice. As set out above, the Tribunal has concluded that conditional planning approval is to be granted for what is listed as item '2a Ablution block'. This too can be deleted from the list in the s 214 notice.
The submission of the applicant was that item '2b Solid annexe connected to a caravan' and item '2e Above ground swimming pool and permanent shade structure' have been removed from the site and item '2d Donga type transportable attached to bus' will be removed once he had sold the contents stored in it.
The Tribunal has concluded that items 2b, 2d and 2e must all remain listed in the s 214 notice. This is because the notice requires that the applicant remove these items and '… restore the Land nearly as practicable to its condition immediately before the Development started, to the satisfaction of the Shire.' The viewing of the site revealed that some work might still be required to effect the requirements of the s 214 notice.
The Tribunal has decided, pursuant to s 255(2) of the PD Act, to vary the s 214 notice by deleting from item 2 of the Schedule on page 2 of the notice item '2a', item '2c' and item '2f' and relisting the three remaining items into alphabetical order. The notice must also be varied by amending point 1 on page 1 of the notice to allow a reasonable time to comply with the direction. The Tribunal considers it would be adequate to allow 60 days from the date of the Tribunal's decision in DR 240 of 2010 to remove the development still listed in item 2 of the Schedule and restore land as nearly as practicable to its condition immediately before the development started.
Conditions
As set out above, the Tribunal has decided to grant retrospective planning approval for the building under review. The respondent filed with the Tribunal a Schedule of Conditions it would want imposed on any approval of the building under review. At the hearing, the parties discussed amendments to those conditions as well as alternative and additional conditions.
An approval would require conditions to be imposed that identify the plans that illustrate the location of the building under review and floor plan of the uses allowed in the building. The conditions are required to make it clear that the building under review, and the use made of it, is part of the approved rural pursuit on the site and not an ablution building that might be considered to be associated with workers' accommodation. To this end, a further condition would require the removal of any laundry machines and fittings from the approved building .
Orders
The Tribunal makes the following orders:
In the proceeding DR 240 of 2010:
The application for review is allowed in part.
The directions issued by the Shire of Broome pursuant to s 214(2) and s 214(3) of the Planning and Development Act 2004 (WA) on 17 July 2010 concerning development on Lot 300 Kanagae Drive, 12 Mile, Roebuck, Shire of Broome is varied as follows:
(i)Paragraph 1 on page 1 of the s 214 notice is amended to read:
You are hereby required to immediately stop and not recommence the development and within 60 days of the date of this order issued by the Tribunal remove the development and to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the Shire.
(ii)Item 2 of the Schedule on page 2 of the s 214 notice is amended by deleting items a, c and f and relisting the remaining items in alphabetical order so that the development and use now required to stop and to be removed is as follows:
Item 2: The Development
The placement of caravans and the following:
a.Solid annexe connected to a caravan;
b.Donga type transportable attached to bus; and
c.Above ground swimming pool and permanent shade structure.
In the proceeding DR 128 of 2011:
The application for review is upheld in part.
Planning approval is granted for the building under review subject to conditions imposed by variation to resolution 'B' of the decision of the Shire of Broome on 15 December 2010, as set out in its letter of 21 December 2010 addressed to Derek Saunders, and confirmed 17 February 2011, as follows:
…
BApproves the planning application 2010/154 for a 'Rural Activity' as submitted by Derek Saunders on Lot 300 (No 117) Kanagae Drive, Roebuck, subject to the following conditions:
1Development must be carried out in accordance with the plans stamped received and dated 4 October 2010 and 18 November 2010 submitted with the application as approved by Council.
2If the development the subject of this approval is not substantially commenced within a period of 3 years from the date of the approval, the approval will lapse and be of no further effect. Where an approval has lapsed, no development must be carried out without the further approval of Council.
3The development of Rural Activity consists of a plant nursery (including shade house) and associated storage area consisting of two sea containers and a roof as marked 3, 4 and 5 on Attachment 2.
4The development of Rural Activity also includes the building marked 'Ablutions' on Whelans Plan 'Feature Survey, Revision 0 Plan 06747-011, date drawn 30/09/2010' and dated stamped 4 October 2010 by the Shire of Broome.
5The use of the building referred to in B(4) is to be as shown on the floor plan on Whelans Plan identified as 'Plan No: Ablution Building', drawn 18 November 2010 and date stamped 18 November 2010 by the Shire of Broome, with the exception that the use 'Laundry' is not approved.
6All laundry machines and fittings are to be removed from the approved building within the 3 years specified in B(2).
7The ablutions in the approved building are to be used only as ablutions by day workers employed in the approved rural pursuit which operates from the site.
8The storage areas in the approved building are to be used only for storage of products produced by the rural pursuit approved on the site.
Resolution 'C' of the decision of the Shire of Broome on 15 December 2010, amended to read as follows:
CRefuses the application for Workers Accommodation being the caravan and annexe (marked 6 and 7 on Attachment 2) and the caravan currently parked adjacent to the storage container and the bus converted to a motor home, on the basis that these do not comply with Local Planning Policy 8.4 Additional Accommodation in General Rural, Rural Agriculture and Rural Living Zones.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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