SCOBY-SMITH and CITY OF GOSNELLS - [2011] WASAT 84

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SCOBY-SMITH and CITY OF GOSNELLS [2011] WASAT 84

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 31 MAY 2011

FILE NO/S: DR 307 of 2010

BETWEEN: TREVOR SCOBY-SMITH
Applicant
AND
CITY OF GOSNELLS
Respondent

Catchwords:

Town planning Parking of commercial vehicles Rural zone Deemed refusal Retrospective approval History of compliance issues Amenity Characteristics of locality Objections by neighbours Conditions of approval Conditions on hours of operation unnecessarily restrictive

Legislation:

City of Gosnells Town Planning Scheme No 6, cl 5.11.3, cl 11.2
Metropolitan Region Scheme
Planninng and Development Act 2005 (WA), s 252(1)

Result:

Application for review allowed
Development approval granted

Category: B

Representation:

Counsel:

Applicant: Mr K Oliver (Acting as Agent)
Respondent: Mr C Windass (Acting as Agent)

Solicitors:

Applicant: Kelvin Oliver Planning Consultant
Respondent: City of Gosnells

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

Bresnahan and Shire of Mundaring [2003] WATPAT [11]
Robinson & Anor and City of Gosnells [2007] WASAT 313
Thompson and City of Wanneroo [2010] WASAT 99

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the deemed refusal of a development application for permission to park two commercial vehicles, each in the form of a truck and trailer, at No 87 (Lot 81) Hayward Road, Martin.
The issue was whether the proposal would comply with the planning framework and whether the proposal would have an adverse impact on amenity of neighbours and the locality. The proposal required some variations to some of the standards described in the planning policy of the City of Gosnells that deals with commercial vehicle parking.
After giving consideration to the proposal in the context of the locality and its relationship to other properties, the Tribunal found the proposal would not have an unreasonable impact on amenity. The Tribunal also found the proposal was consistent with the planning framework and that it was acceptable in terms of all the relevant criteria of the City's planning policy dealing with commercial vehicle parking.
The application for review was allowed and conditional approval granted.

Introduction

These proceedings involve an application brought by Mr Trevor ScobySmith (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the deemed refusal of the City of Gosnells (City or Council) for commercial vehicle parking of two trucks at No 87 (Lot 81) Hayward Road, Martin (site).
The applicant has resided on the site for 38 years and in March 2003 received development approval for parking one commercial vehicle on the site. During 2004, the City corresponded with the applicant concerning unauthorised activities on the site relating to a waste metal recycling business. The applicant agreed to cease the activities on the site.
On 8 February 2007, the City wrote to the applicant advising that complaints had been received concerning the continuation of the scrap metal business on the site. The City's letter noted previous correspondence with the applicant and agreed to give the applicant until 12 February 2007 to finalise relocation of activities from the site. The correspondence also noted complaints that up to three trucks operated from the site and advised that a development application was required for the additional trucks.
On 16 February 2007, the City wrote to the applicant advising that no further action would be taken concerning the scrap metal business because a site inspection had confirmed activities had ceased.
On 10 May 2007, the City wrote to the applicant advising that 'it has been brought to the City's attention that up to three Commercial Vehicles have recently been observed parked on the subject property for periods well in excess of the 2 hour limit permitted under the provisions of the City's Commercial Vehicle Parking Policy 6.2.4.1'. The City asked the applicant to contact the Council and advise the Council concerning his intentions and the need to seek approval for the additional vehicles.
The next correspondence from the City to the applicant was on 11 March 2009, again advising of the need for development approval.
A development application was lodged on 23 March 2009 seeking approval to park two prime movers and two trailers (tipper type) on the site. It is not clear what happened during the next eight months, except that for 14 days, the proposal was advertised and a report was prepared by the City's planners recommending conditional approval for Council's consideration at its meeting of 10 November 2009. The staff recommendation was defeated. An alternate motion for refusal was also lost. Eventually the Council voted 10 to nil in favour of a motion to defer the application.
Another report recommending conditional approval was submitted for Council's consideration at its meeting on 13 July 2010. The staff recommendation was defeated. An alternate motion for another deferral was successful.
The matter went before Council again at its meeting on 24 August 2010. The staff recommendation for approval was defeated.
The application for review was lodged on 6 October 2010 and after mediation the Council was invited to reconsider its decision in December 2010. The reconsideration did not result in an approval. The actual decision is quoted later in these reasons.

Site and locality

The site has a trapezoidal shape with a street frontage and width of 70 metres. The side boundaries appear to be parallel with each other and at right angles to the street; one side boundary has a length of approximately 139 metres and the other has a length of approximately 105 metres. The site has an area of approximately 0.84 hectares.
The site contains a dwelling, some outbuildings and a fenced area at the rear of the site for the truck parking. The site has been cleared of native vegetation and appears relatively flat although a contour map of the locality indicates there is a gentle gradient. The applicant has planted extensive vegetation in the form of a row of trees on the northeast boundary of the property and adjoining the fenced area for truck parking.
The site is located in a rural zone between Tonkin Highway and the Darling Range east of Perth. The applicant described the immediate locality as follows:
The surrounding properties are generally larger in area and have the same zoning. Within the general locality the properties are used for rural living, small family business (nursery, soil mixing, contractors)[,] riding school, and general small rural residential uses. A major quarry (Readymix) lies to the north[]east, Tonkin Highway lies to the west[,] and an educational farm school lies to the north.
The respondent agreed with the applicant's description of the locality except to correctly note that the quarry is southeast of the site.
The Tribunal had the benefit of a site viewing in the company of the parties.

Planning framework

The site is zoned Rural under the Metropolitan Region Scheme (MRS) and general rural under the City of Gosnells Town Planning Scheme No 6 (TPS 6 or Scheme). The objective for the general rural zone is stated in TPS 6 as 'to provide for a range of rural pursuits which are compatible with the capability of the land and retain the rural character and amenity of the locality'.
The use proposed in the development application, which falls within the use class 'commercial vehicle parking' under the Scheme, is not permitted unless consent is granted by the Council. Advertising is not required although the Scheme provides that the Council may advertise.
Clause 5.11.3 'Parking of Commercial Vehicles' of the Scheme provides as follows:
No person shall park, or cause to be parked or permit to be parked any commercial vehicle on any lot within any Rural zone (unless the vehicle is specifically used as an integral part of the rural activity of that lot) without the planning approval of Council:
Subject to the provisions of the Scheme, where the Council grants planning approval to park a commercial vehicle, the following provisions shall apply:
(a)the approval shall be personal to the applicant and shall not be transferred or assigned to any other person;
(b)the person(s) to whom approval is given by the Council to park a commercial vehicle shall not after the granting of that approval park a commercial vehicle, at any residential premises other than the land in respect of which the Council's approval was granted; and
(c)If a vehicle has been parked with the approval of the Council and if, in the opinion of the Council, such vehicle is causing a nuisance or annoyance to neighbours or owners or occupiers of land in the neighbourhood, the Council may revoke its approval, where either, or:
(i)the applicant is not complying with conditions of approval;
(ii)the nature of nuisance or annoyance has been verified; and
(iii)the applicant has not rectified the source of nuisance, annoyance or non-compliance within 7 days of written notification;
after which no person shall park a commercial vehicle upon that land without the further approval of Council.
It is common ground between the parties that the proposal is not for a vehicle that is specifically used as an integral part of the rural activity of that lot. Therefore, the proposal requires the discretionary approval of Council.
Clause 11.2 of TPS 6 provides that, in determining a development application, the Council shall have regard to and may attach conditions relating to matters including:
…
(i)the compatibility of a use or development with its setting;
…
(n)the preservation of the amenity of the locality;
(o)the relationship of the proposal to development on adjoining land or on other land in the locality including[,] but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
…
The respondent has adopted a directly relevant planning policy Local Planning Policy LPP 2.1 Commercial Vehicle Parking (policy or LPP 2.1). The stated reason for the policy is to 'provide guidance on the assessment and determination of applications for planning approval for commercial vehicle parking within the City's rural and residential zones'. This is followed by the two policy objectives:
1.1To provide opportunities for the parking of commercial vehicles of more than 2 tonnes carrying capacity in a manner that does not detrimentally impact on the amenity of the surrounding area.
1.2To provide criteria that will assist in the consideration of applications for commercial vehicle parking.
The policy contains a table which describes various assessment criteria in three columns. A proposal that complies with all the criteria in Column A will generally be acceptable without requiring advertising. A proposal which contains some elements that fail criteria described in Column A but comply with criteria in Column B may be acceptable but will require advertising.
Clause 4.5 of LPP 2.1 states that commercial vehicle parking applications that fall within one or more of the criteria outlined in Column C of Table 1 will generally be refused.
The relationship between the proposal and the assessment criteria outlined in Table 1 of LPP 2.1 will be examined in depth later in these reasons.

Proposed development

The applicant submitted an application, on 25 March 2009, for retrospective approval of truck parking. The application included a site plan showing the location of the proposed truck parking area, access and relationship to existing infrastructure on site. The application also included a description of the proposal vehicles which may be summarised as:
•One prime mover with a length of 6 metres; height of 4.1 metres and tare weight of 9.3 tonnes;
•One prime mover with a length of 6 metres; height of 3.9 metres and tare weight of 9.6 tonnes;
•One tipper trailer with a length of 9.8 metres; height of 4.1 metres and tare weight of 11.5 tonnes; and
•One tipper trailer with a length of 9.0 metres; height of 4.0 metres and tare weight of 9.0 tonnes.
The combined length of the prime movers and trailers was described as 14 metres each.

Council's decision

The application for review was lodged against a deemed refusal. After the application was lodged and resulting from an invitation from the Tribunal to reconsider its decision, the Council, at its meeting of 14 December 2010, resolved as follows:
That Council advises the State Administrative Tribunal that it is reluctant to review the application for commercial vehicle parking at [No] 87 (Lot 81) Hayward Road, Martin in a positive light given the apparent continued operation of the commercial vehicle parking in a manner that would be clearly outside the reasonable limits of any approval.
That [C]ouncil resolves to provide the State Administrative Tribunal with a copy of the recent evidence provided regarding the use of the site and commercial vehicle parking activity, in order to assist in the deliberation of the appeal.
The information described in the Council's decision was provided to the Tribunal and has been considered in the determination of this review.

The issues

There is only one issue in this review and that is whether the proposal complies with the planning framework with particular regard to amenity.

Summary of the applicant's argument

A substantial part of the applicant's written submissions deals with history and complaints about the Council's assessment process and the failure of Council to endorse the staff's recommendation of a conditional approval. Although the applicant made considerable effort to develop these arguments, the Tribunal does not give them any weight in this review, noting that, although the Council's processes may have been lengthy, they were understandable, given the complex history of the site.
The applicant's case appears to centre around three main arguments: the low intensity of the use; the use being appropriate to the character of the area; and the low impact on amenity.

Low intensity

The applicant lives with his brother and father on the site. The trucks are driven by family members residing on the site. The applicant stated:
Mr. ScobySmith operates a haulage business of one, sometimes two, truck/trailers which requires him to travel to a variety of destinations in the country side of WA to collect scrap metal and then deliver the material to a scrap yard in Malaga. These trips average 23 per week at the most. Once the material is unloaded he will return with his vehicle(s) to his residence at Hayward Rd. From time to time he may undertake 'minor' routine maintenance eg change oil, tyres, water.

Character of the area

The applicant described the area as semirural in character, noting that the site backs onto a drainage reserve and is surrounded by other small rural holdings which are used for a variety of purposes including: several properties used for commercial vehicle parking; a palm nursery; a working farm operated by Kelmscott High School; and a variety of horse agistment properties used for riding lessons on a regular basis. The applicant also noted the character of the area is impacted by Tonkin Highway, the quarry and 330 KVA powerlines and poles. With that background, the applicant argued that the parking of two commercial vehicles on a property of approximately 8,400 square metres is consistent with the character of the area.

Amenity

The applicant argued that the proposed use would not have an adverse impact on amenity because the use is consistent with the character of the area and that the low intensity of this particular use further reduces any risk of an adverse impact on amenity. In addition, the applicant argued the characteristics of the site also protect amenity, noting that the staff report to Council on 24 August 2010 stated:
Given the size of the site, the fencing and vegetation available for screening and the location of the vehicles, it is considered that the proposal would not result in adverse impacts on the amenity [of] the locality.
The applicant expressed frustration that the Council, in not supporting the staff recommendations, had not described any reasons for refusing to approve the application or described any particular adverse impact on amenity.

Summary of the respondent's argument

It is a little difficult to determine the planning basis for the refusal, since Council did not provide any reasons for the refusal. The arguments submitted by the respondent in response to orders by the Tribunal tended to deal mostly with the generally irrelevant arguments by the applicant on history and process. Before moving to the planning arguments of the respondent, it is appropriate to deal with the distracting issue of history.

History

The respondent presented 'history' as a basis for refusing the application, primarily because the respondent believed that the applicant would not comply with any conditions of approval.
The central issue in this matter relates to the critical importance of conditions … being adhered to. …
After referring to a long history of compliance issues with the applicant on this site, the respondent concluded:
Given the history of unauthorised land uses undertaken by the applicant which had necessitated compliance action by City staff, and the photographic and video evidence tendered by a neighbouring land owner to Council, serious concerns were raised relating to the applicant's ability to comply with conditions of any approval.
The above statement is consistent with part of the Council's December 2010 decision where it referred to evidence to be forwarded to the Tribunal. The evidence referred to in the decision appears to be information in the form of videos and photographs supplied by an objecting neighbour noting breaches of approval conditions. The relevance of this information is uncertain because, although the photographs have times and dates, they are not verified. Furthermore, the alleged breaches of approval conditions appear to apply to an earlier lapsed approval and have limited relevance to the current application. For example, there are four photographs ranging from April 2010 to November 2010 that show a breach of a condition for one driver and one truck (no trailer). In addition, there are eight photographs alleging to show breaches of a 'no movement of commercial vehicles before 7 am' condition. The photographs are dated between 13 September 2010 and 22 November 2010 and show truck movements ranging from 5.53 am to 6.34 am. An earlier approval for one commercial vehicle did not include any time restrictions.
With reference to the Council's most recent decision; the lack of specific reasons for refusal; and the information described in the previous paragraph, the respondent made the following comment:
… Council has reaffirmed its previous decision to not support the staff recommendation and therefore not approve the application. This is based on the potential for the application to give rise to adverse amenity impacts due to the [a]pplicant demonstrating that he would not be able to comply with the hours of operation, as stipulated as a condition of approval in the staff recommendation …
Before discussing the respondent's planning arguments, it is appropriate for the Tribunal to present its finding on the matter of history. With reference to the videos and photographs, the Tribunal finds the applicant cannot breach a condition that does not exist. While it may be correct that the applicant agreed to these times if the application was approved, the application was not approved and the applicant now contests the proposed condition.

Furthermore, the Tribunal finds that, although there has been a history of compliance issues, the evidence indicates that the applicant has complied with directions from the respondent. As noted above, some of the alleged compliance issues involve conditions that either did not exist (no time restrictions on the original approval) or were merely draft/proposed conditions.
The Tribunal finds the relationship between history and assumed future non-compliance with conditions of approval is not a basis to refuse this application.

Planning arguments

Despite the above finding, the Tribunal accepts the relevance of history in terms of amenity. The respondent argues that the history is relevant because the applicant has a history of breaching planning requirements for activities on the site. The respondent referred to cl 11.2 of TPS 6 where, at item (n) of 'matters to be considered' by Council when determining a planning application, the Council is required to consider 'the preservation of the amenity of the locality'.
Accordingly, the Council having due regard for the above Clause, resolved to not support the staff's recommendation to approve the application, and therefore protect and preserve the amenity of the locality. This was based on a history of unauthorised land uses being undertaken by the [a]pplicant which had necessitated compliance action by the City staff, and recent photographic and video footage showing the [a]pplicant's inability to comply with proposed conditions of approval.
To support the Council's position on amenity, the respondent, in its statement of reasons, referred the results of advertising the proposal where five submissions were received of three objected and, in addition, there was an 11 signature petition objecting to the proposal. One objector is an adjoining neighbour and two objectors live on the other side of Hayward Road, directly opposite the site. Key issues raised by the objectors were:
•the potential for commercial vehicle parking to have an adverse impact on the amenity of the locality; and
•the use of the property to operate a business that was not suitable for the rural area.
In addition, the respondent argued that the proposed truck movements would have an adverse impact on amenity and an even worse impact on amenity if truck movements occurred before 7 am.
The report of Council staff noted that, although the applicant had screened the parking area with a fence and some vegetation, the objecting neighbour to the northeast is on a rising slope and can overlook the parking area despite the screening.

Findings

The first matter to consider is the number of vehicles. Clause 5.11.3 of TPS 6 does not make it clear whether discretionary approval is limited to one commercial vehicle or whether approval can be granted for two or more vehicles. The Scheme definition is as follows:
'commercial vehicle' means a vehicle whether licenced or not and which is used, capable of being used, designed to be used or intended to be used in conjunction with a trade or profession and shall include trailers, tractors and their attachments, buses and earthmoving machines whether self propelled or not but shall not include a passenger car derivative as defined by the Vehicle Sales Regulations 1976 (as amended), a van, utility or light truck which is rated by the manufacture[r] as being suitable to carry loads of up to 1.5 tonnes[.]
The number of vehicles is dealt with in the policy. Clause 2.2 of LPP 2.1 makes it clear that discretion is available to approve two or more vehicles:
The Policy applies to commercial vehicles parked on a property that are intended to be parked on the lot on a regular or routine basis.
Clause 4.6 of LPP 2.1 removes any uncertainty, where the policy states:
Reference to a 'commercial vehicle' in Table 1 includes:
a)more than one commercial vehicle, where an application is made for the parking of more than one such vehicle on a property; and
b)the vehicle itself together or a trailer or other attachment(s), whether self-propelled or not.
There is further clarification in Table 1 of the policy where cl 3.2 deals with the number of vehicles in a rural zone. Column A describes acceptable development as:
3.2AIn a Rural zone:
i)[O]ne or two commercial vehicles, each not exceeding 8.5 metres in length.
ii)[U]p to one commercial vehicle not exceeding 18.5 metres in length.
iii)One commercial vehicle plus trailer not exceeding 18.5 [metres] in length.
Column B describes development which involves variation subject to advertising as:
3.2BIn a Rural zone:
i)Any vehicles exceeding Criteria 3.2A.
ii)Up to three commercial vehicles where any vehicle, or vehicle plus trailer[,] shall not exceed a total of 20 metres in length.
The application involves two vehicles with attached trailers where the combined length of each vehicle and trailer is approximately 14.0 metres. Therefore, the proposal is possible under cl 3.2B of Table 1 of the policy.
In terms of numbers of vehicles, there are two other relevant requirements in Table 1, both in the acceptable development column. Clause 1.1A requires:
The commercial vehicle must form an essential part of the occupation of the occupant of a dwelling on the subject lot.
and cl 1.2A requires:
The commercial vehicle shall only be driven by a person who is a bona fide registered occupant of a dwelling on the subject lot in any area.
It was uncertainty over these requirements that caused Council to defer consideration of the application in November 2009 and pass a resolution seeking clarification to guarantee 'the drivers of the commercial vehicles are bona fide residents of the property'.
The respondent's written submission of 28 March 2011 as part of this review confirmed this requirement had been satisfied where, at item 2, it was stated:
Subsequently it was found that both of the nominated drivers were residents of the property, thus satisfying policy requirements.
The respondent has not contested that the commercial vehicles are an essential part of the occupation of the occupants of the property.
Therefore, the Tribunal finds that the planning framework permits two commercial vehicles (including trailers) of the size proposed by the applicant.
The question remains (following from cl 11.2 of TPS 6) that, although it is possible to approve two commercial vehicles, whether they should be approved in the context of amenity of the locality; the compatibility of the use in the context of its setting; and the relationship of the proposal to development on adjoining land.
The respondent, and therefore the Tribunal, are guided in the exercise of discretion and consideration of cl 11.2 of TPS 6 by the directly relevant LPP 2.1.
Some of the criteria have already been examined above and have been found to meet acceptable development standards. It must be noted that 'acceptable' in the table of the policy does not necessarily result in automatic approval. In the narrowest sense, it merely means that advertising is not required. However, given the normal understanding of the word 'acceptable' and the context of the entire policy document, there is a reasonable expectation that a proposal that complies with all criteria of the 'acceptable' column would normally be approved, except in unusual circumstances. This expectation reduces as soon as any assessment criteria fall into column B.
In this particular application, on the criteria examined so far, one item that falls into column B is the proposal of two trucks in lieu of one truck.
The remaining criteria of Table 1 are examined below.
Criterion 1.4A sets to the following standards in the acceptable column.
i)In a Rural zone, the commercial vehicle must be parked behind the house.
ii)In a Rural zone, the commercial vehicle must be parked a minimum of 10 metres from the nearest point of any dwelling on an adjoining lot or, in the case of a vacant adjoining lot, parked a minimum of 6 metres from the nearest vacant lot boundary.
iii)In a Rural zone[,] the vehicle must be able to leave the site in a forward gear.
The proposal complies with all these criteria. The parking area is at the rear of the property and approximately 20 metres from the nearest boundary. The trucks can enter and leave the site in forward gear. In this particular application, the truck parking area is screened by a fence and vegetation, further reducing any adverse impact on amenity. The nearest point of the objecting neighbour's house (to the northeast) is over 120 metres to the truck parking area and approximately 100 metres to the nearest point of the driveway. Although this neighbour can overlook the truck parking area because the neighbour is on a rising slope, the distances minimise the impact such that it is acceptable at this point of time with or without vegetation acting as a screen. The amenity will improve in the future as the vegetation grows but this is an observation and not a reason for approval.
The closest adjoining dwelling is to the southeast and it is approximately 50 metres from the nearest point of the truck parking area and further from the driveway. The particular dwelling is screened from the truck parking area by outbuildings on both the neighbouring and the applicant's property.
Some of the objections related to dust. The staff report to Council for the December 2010 meeting noted:
The effects from dust as a result of moving vehicles on the access road and parking areas is expected to be minimal as these areas consist of a limestone/bluemetal base, and dwellings on neighbouring properties are located over 50m from the vehicle parking and access areas.
Other objections related to noise. The Tribunal finds that the distances involved ensure amenity with reference to noise is protected to reasonable limits and if necessary can be secured by appropriate conditions restricting hours of operation.
Criterion 2.2 requires a rural lot to have a minimum lot size of 1.5 hectares to be considered acceptable. The minimum lot size to be considered suitable for discretionary approval subject to advertising is 4,000 square metres. The review site is less than the acceptable minimum but double the absolute minimum. Given the large distances to neighbouring properties and the ease of compliance with criterion 1.4, the Tribunal does not consider the lot size to be an issue that could prevent approval.
In addition to the criteria described in the table, three additional criteria listed in cl 4 of the policy are relevant to this review. They are as follows:
4.7The intended frequency of movement of the vehicle to its parking location should not unreasonably impinge on the function or prevailing traffic conditions in the locality.
4.8The suitability of the local road network to accommodate the proposed parking activity and associated traffic movement.
4.9The intended arrival and departure times for the vehicle should not unreasonably impinge on the amenity of the area.
The applicant's proposed usage of two commercial vehicles using the site three times a week generates 12 vehicle movements. The site has close access to Tonkin Highway via Pitt Street (almost opposite the applicant's site in Hayward Road) and Gosnells Road East. The applicant argued that the local roads are used by quarry trucks and other commercial vehicles. The respondent did not argue against the applicant's statements on traffic, limiting its argument to a statement that it could not confirm the use of the roads by heavy quarry vehicles. However, in the report to Council's December 2010 meeting, the following statement was made:
It was also noted and observed during the site inspection, that numerous heavy vehicles use Hayward Road regularly including vehicles thought to emanate from other long standing businesses in the area.
All roads are sealed and, based on submissions, there is no reason to anticipate the proposal will be unsuitable in terms of the prevailing traffic conditions and/or the local road network.
Therefore, after giving consideration to the proposal in the context of the locality and its relationship to other properties, especially residential properties, there is nothing in the assessment of the proposal to indicate that it is inconsistent with the objective of the rural zone or that it would have an unreasonable impact on the amenity of the locality or other properties.

Conditions

Although the parties have not formally identified draft 'without prejudice' conditions, they are implied by reference to the following statement from the applicant:
The applicant has read the staff report and the recommended conditions and is of the opinion that the conditions are relevant and quite within his ability to fulfil. The only condition that the applicant wishes further discussion on is condition 5 of the staff recommendation presented to Council at its meeting of 14 Dec 2010. That condition limits the movements of his vehicles to the hours of 7am to 5pm Monday to Saturday. Although he is able to comply with this condition he is concerned that if for some unplanned reason he is required, on a very rare occasion, to leave before 7am or gets delayed and arrives home after 5pm that [sic] some legal action may be taken. Given his infrequent entry/exits of his property (possibly a maximum of 23 times per week), the general use of Hayward Rd by other trucks and commercial vehicles and the sparse location of residents some leniency in this restriction is requested.
The Tribunal has considered the eight conditions proposed in the December 2010 Minutes. Leaving aside the contested condition, the other seven conditions are consistent with the nature of the proposal and the planning framework.
Although the respondent has not made a formal submission on the contested conditions, it is safe to proceed on the basis that the respondent still maintains support for the proposed restrictions on times for truck movements for reasons that would be consistent for the decision not to approve the proposal.
The Scheme and the policy documents are silent on this condition: neither of them point towards preferred times. The criterion that arrival and departure times should not unreasonably impinge on the amenity of the area is fundamental to orderly and proper planning. It is clear from the various documents submitted by the respondent that the objecting neighbours would prefer no commercial vehicle movements at all but, if permitted, movements should be restricted to after 7 am and before 5 pm on Mondays to Saturdays.
Those hours seem unnecessarily restrictive. In three successful reviews for similar proposals, vehicle movement hours were not as restrictive as proposed for this particular application.
In Bresnahan and Shire of Mundaring [2003] WATPAT [11], the proposal was supported in accordance with the town planning scheme where, at [10], it was reported that the relevant restriction was that:
…
BThe vehicle is not brought or taken from the land between the hours of midnight and 6.00 [am].
In Robinson & Anor and City of Gosnells [2007] WASAT 313 (Robinson), one of the conditions of approval, at [94], was, in part:
…
vii)The commercial vehicle(s) shall not be driven to or from the site before 6 am or after 7 pm Monday to Saturday ...
In Thompson and City of Wanneroo [2010] WASAT 99, one of the conditions of approval, at [36], was:
…
(v)The vehicle shall not be started or manoeuvred between the hours of 10.00 pm to 6.00 am the following day.
…
Although the facts of each of the above decisions varied from the current review, they were similar in principle. There is nothing unusual about this particular proposal that would warrant stricter limitations on time. All three decisions have a 6 am start time, with the Robinson decision having the most restrictive finish times. If the previous Robinson decision is used as a base, the Tribunal's conditioned hours are one hour earlier and two hours later than proposed by the respondent. These modified hours would seem to address the concerns raised by the applicant. However, given the history of objections and the possibility of vigilant objectors submitting further video evidence of breaches, some reasonable flexibility seems warranted. Based on the limited truck movements proposed by the applicant, it is reasonable to allow a maximum of three movements per week outside the above hours, but no earlier than 6 am.
Therefore, the condition on hours of operation is modified as follows:
Truck (Commercial Vehicle) movements are limited to 6 am 7 pm Monday to Friday and 6 am 5 pm on Saturday. In addition, three truck movements per week, including a maximum of two truck movements on Sunday, are permitted outside the above hours but limited to the following hours:
•6 am 9 pm on Monday to Friday;
•6 am 7 pm on Saturday; and
•9 am 5 pm on Sunday.

Conclusion

After giving consideration to the proposal in the context of the locality and its relationship to other properties, the Tribunal found the proposal would not have an unreasonable impact on amenity. The Tribunal also found the proposal was consistent with the planning framework and that it was acceptable in terms of all the relevant criteria of the City's planning policy dealing with commercial vehicle parking.
The Tribunal also determined that one of the proposed conditions dealing with hours of operation was unnecessarily restrictive, and modified the condition to provide a reasonable balance between operating conditions and protection of amenity.
It follows that the application for review should be allowed and the decision of the Council to not approve the development should be set aside.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The deemed decision of the respondent to refuse development approval for the parking of two commercial vehicles at No 87 (Lot 81) Hayward Road, Martin is set aside and a decision is substituted that development approval is granted subject to the following conditions:
1)The vehicles to be parked on the property being limited to:
i)Freightliner Cab length of 6 metres and height of 4.1 metres Registration No 1CPU141.
ii)Kenworth Cab length of 6 metres and height of 3.9 metres Registration No 1BZP-414.
iii)GTE Tipper length of 9.8 metres and height of 4.1 metres Registration No 1TJV-244.
iv)Banmere Tipper length of 9 metres and height of 4 metres Registration No 1TJA-244.
2)The commercial vehicles are to be parked in the designated parking area as per the approved plan.
3)Approval of the parking activity does not include approval for the loading or unloading of the commercial vehicles or the storage of goods in transit.
4)The approval is personal to the applicant and shall not be transferred or assigned to any other person or property.
5)Truck (commercial vehicle) movements are limited to 6 am 7 pm Monday to Friday and 6 am 5 pm Saturday. In addition, three truck movements per week, including a maximum of two truck movements on Sunday, are permitted outside the above hours are limited to the following hours:
6 am 9 pm Monday to Friday;
6 am 7 pm on Saturday; and
9 am 5 pm on Sunday.
6)Only maintenance of a minor nature, such as servicing or wheel changing, is to be carried out on the subject property. No panel beating, spray painting or the removal of major body or engine parts is permitted.
7)Washing of the commercial vehicles on the subject lot is to be limited to the use of water and mild detergent, but not involve the use of any solvents, degreasing substances, steam cleaning and any other processes which may cause pollution or degradation of the environment.
8)A fence is to be erected on the rear property boundary between the subject site and Crown reserve 42339, within 90 days of this approval. The fence is to be constructed to a rural standard in accordance with the City of Gosnells Fencing Local Laws 2000.
I certify that this and the preceding [93] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER