Shreeve and Shire Of Augusta-Margaret River
[2012] WASAT 73
•19 APRIL 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SHREEVE and SHIRE OF AUGUSTA-MARGARET RIVER [2012] WASAT 73
MEMBER: MR J JORDAN (MEMBER)
HEARD: 9 FEBRUARY 2012
DELIVERED : 19 APRIL 2012
FILE NO/S: DR 177 of 2011
DR 486 of 2011
BETWEEN: KELLY SHREEVE
Applicant
AND
SHIRE OF AUGUSTA-MARGARET RIVER
Respondent
Catchwords:
Town planning Development application Wedding and commitment ceremony centre Outdoor setting Rural Residential zoning Characterisation of use Reception centre use Not home business use or use not listed Use prohibited in zone Whether use is consistent with objectives of the zone Impact on local amenity Impact of vehicles Use commenced without approval Local government notice to cease use Whether direction to cease should be confirmed, varied or set aside
Legislation:
Planning and Development Act 2005 (WA), s 214(3), s 255(1), s 252(1)
Shire of Augusta-Margaret River Local Planning Scheme No 1, cl 4.2.4.2, cl 4.2.4.2(c), cl 4.4, cl 8.1, cl 8.2, cl 8.2(e), Pt 10, cl 9.4, Sch 1 s 1, Sch 1 s 2
Shire of Augusta-Margaret River Town Planning Regulations 1967 (WA), cl 10.2 Appendix B
State Administrative Tribunal Act 2004 (WA), s 51(1)(b)
Result:
DR 486 of 2011
Application for review dismissed
Application for planning approval for the development of a reception centre refused
DR 177 of 2011
Application for review of the direction issued in the notice given under s 214(3) of the Planning and Development Act 2005 (WA) dismissed
Decision of the Shire of August-Margaret River to issue the s 214(3) notice confirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Ms E Lumsden (Acting as Agent)
Solicitors:
Applicant: N/A
Respondent: Shire of AugustaMargaret River
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter was concerned with the use of a Rural Residential zoned property near the town of Margaret River for wedding and 'commitment' ceremonies in a garden setting. The Shire of AugustaMargaret River served a notice directing the owner to cease the use. An application for retrospective approval was refused by the Shire.
The parties made submissions on whether the use should be characterised as a reception centre, which is a use not permitted in the zone, or as either a home business or a use not listed, both of which are discretionary uses. The Shire submitted that if there was discretion, the use should be refused because it would have an adverse impact on the amenity of the locality and surrounding properties, and would be inconsistent with the objectives for the Rural Residential zoning.
The Tribunal determined that the use was properly characterised as a reception centre under the local planning scheme and therefore was a use that was not permitted in the zone. The Tribunal further decided to confirm the direction in the notice served by the Shire of AugustaMargaret River that the use cease and not recommence.
Introduction
Ms Kelly Shreeve (applicant) lodged applications for review of two decisions made by the Shire of AugustaMargaret River (respondent, Shire or Council) in respect of a use involving wedding and 'commitment' ceremonies for couples, and christenings at Lot 11 Cypress Avenue, Margaret River (site). The two applications for review were:
1)DR 177 of 2011, brought by the applicant pursuant to s 255(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of a notice issued by the Council pursuant to s 214(3) of the PD Act giving direction to the applicant to cease and not recommence the use: and
2)DR 486 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 planning approval for the use.
At a directions hearing, the Tribunal ordered that these two applications for review were to remain separate proceedings, but be heard together, pursuant to s 51(1)(b) of the State Administrative Tribunal Act 2004 (WA), and evidence in one matter was to be evidence in the other matter.
Planning framework
The site and surrounding lots are zoned Rural Residential under the Shire of AugustaMargaret River Local Planning Scheme No 1 (LPS 1). The purpose of the Rural Residential zone at cl 4.2.4.2 of LPS 1 is:
To provide and recognise established ruralresidential lifestyle development opportunities in strategic rural locations but to confine any further such development to land where such activities are consistent both with the provisions of the LNRSPP, the conservation of the significant landscape values and environmental attributes of the land and with appropriate fire management.
Objectives of the Rural Residential zone at cl 4.2.4.2 of LPS 1 include:
…
(b)To recognise that the conservation of the physical, environmental and landscape characteristics of the land is paramount;
(c)To provide opportunities for a range of limited rural and related ancillary pursuits on ruralresidential lots where those activities will be consistent with the amenity of the locality and the conservation and landscape attributes of the land;
…
At Sch 1 of LPS 1, in s 2, are 'Land use definitions', including for 'home business' and 'reception centre'. These two definitions are set out in the discussion of issue 1 below. Schedule 1 of LPS 1, at s 1 'General Definitions' states:
'Premises' means land or buildings.
Under 'Table No. 1 Zoning Table' of LPS 1, for the Rural Residential zone, home business is an 'A' use and reception centre is an 'X' use. An 'A' use is not permitted unless discretion is exercised and planning approval granted after giving special notice in accordance with cl 9.4 of LPS 1, which requires that the proposed use be advertised. An 'X' designation means that the use is not permitted.
Clause 4.4 of LPS 1 is concerned with the interpretation of the zoning table and refers to a use not mentioned in the zoning table, which is commonly referred to as a 'use not listed'. Provided is:
4.4.1Where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.
4.4.2If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the local government may:
(a)determine that the use is consistent with the objectives of the particular zone and is, therefore, permitted;
(b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular zone and is, therefore, not permitted.
Clause 4.21.4(d) of LPS 1 says that, for the Rural Residential zone:
Land shall not be used for any purpose which would:
(i)detract from the rural character of the area generally;
(ii)adversely affect any established vegetation on the land; and
(iii)adversely affect a water course or the water quality within that water course.
At 'PART 10 Procedure for Dealing with Application', LPS 1 states:
The provisions of part 10 of the Model Scheme Text clauses 10.1 to 10.10 as current including any amendments apply. …
The Town Planning Regulations 1967, at Appendix B Model Scheme Text, cl 10.2 lists matters to which regard is to be had when considering an application for planning approval. These include:
…
(i)the compatibility of the 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 other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
(p)whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;
(q)the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety.
The applicant also referred to cl 8.2 of LPS 1, which states:
Except as otherwise provided in the Scheme, for the purposes of the Scheme the following development does not require the planning approval of local government:
…
(e)any works which are temporary and in existence for less than 48 hours or such longer time as the local government agrees[.]
The site is within the Rural Residential area of the Leeuwin Naturaliste Ridge State Planning Policy 6.1 (LNRSPP). Land Use Strategy 1.25 (LUS 1.25) states that in Rural Residential areas, better use of land already committed will be encouraged, and assessment of proposals will address certain criteria. These include:
•Provision for communitybased activities and services;
•Opportunities for local enterprise development such as limited smallscale tourism development, including accommodation, attractions and cottage industries.
The site and locality
The site has an area of 9,986 square metres with frontage of 94.1 metres to Cypress Avenue at the eastern boundary and frontage of 78.7 metres to Roxburgh Road at the southern boundary. The applicant's house is almost centrally located on the site. Between the house and southwestern corner is a second, smaller house as ancillary accommodation for the applicant's mother. A shed is situated just to the north-east of the house. About 15 metres from the Roxburgh Road corner is a gravel crossover from Cypress Avenue to a gravel driveway that curves around the southern and eastern sides of the house.
A creek line runs across the site about 5 10 metres from the northern boundary. The site is extensively landscaped with a mixture of exotic vegetation and remnant native trees. In general terms, the site has stands of trees interspersed with areas of lawn. The site is screened, in large part, from the roads and neighbouring lots by vegetation along the boundaries.
The aspect north from the house is across lawn to a landscaped pond about 10 metres in diameter, and then to mature trees along the creek.
The site is about 5 kilometres to the southwest of the centre of Margaret River. Roxburgh Road extends from Caves Road eastward to Cypress Avenue, beyond which it becomes a bush track. Cypress Road extends north to Eucalyptus Court, which is a culdesac. All three roads are bitumen and serve a Rural Residential subdivision of mostly 1 hectare and 2 hectare lots. The lots all have houses and a mixture of vegetation and cleared areas. The lot adjoining the site to the west has stables, and there are chalets at the end of Eucalyptus Court and on a lot near the junction of Roxburgh Road with Caves Road. The applicant said about three houses, including the house opposite on Cypress Avenue, are leased for holiday accommodation.
The site and immediate locality were viewed by the Tribunal accompanied by the applicant, the agent for the respondent, and the respondent's witness.
Proposed development
The applicant put before the Tribunal for approval a planning proposal for the site to be used for a 'wedding, commitment ceremony, christening or that special occasion'. The business would operate between September and June each year, with no more than one ceremony per weekend, and usually between the hours of 2 pm and 4.30 pm.
The ceremonies would take place on a wooden stage raised about 0.5 metres above the ground adjacent to the French doors at the northern side of the house on the site. Up to 50 guests would be seated on the lawn facing the stage. The guests and the stage would be contained within 50 square metres which would be within the building envelope for the site. The area would be demarcated and decorated with ribbons, white flags, topiary and decorative umbrellas.
Music would be relayed from inside the house. Any drinks or food platters would be supplied by the customers and would be served by the applicant. The customers could engage their own celebrant, or one could be arranged by the applicant. Any reception with a meal, drinks and music to follow the ceremony would be held at other venues elsewhere in the district.
The application was for vehicles to use the existing crossover near the corner of Cypress Avenue and Roxburgh Road. The applicant estimated that up to 15 vehicles would attend, and parking would be adjacent to the driveway. The applicant said the access to the site could, if required, be relocated from near the street corner northward, about 20 metres to just south of the creek.
The use would employ only the applicant and her mother.
Shire decisions
The s 214 notice
The Shire's s 214(3) notice (s 214 notice) stated that the applicant was using the land as a 'reception centre' without prior approval of the Council. The s 214 notice directed that the applicant 'stop and not recommence the use'.
Planning refusal
The Shire refused to grant planning approval to use the site as a 'home business wedding ceremony garden' because (in summary):
1)The use would be inconsistent with the objectives of the Rural Residential zone because it would adversely impact on the amenity of the neighbours and the locality.
2)The use would be inconsistent with orderly and proper planning.
3)The use would set an undesirable precedent for similar development on smaller lots in the Rural Residential zone.
4)The surrounding road network and crossover to the site are inadequately designed, sized or located to accommodate traffic associated with the proposed use.
Issues
The Tribunal identified from the statements of the respective parties the following issues:
DR 486 of 2011
1)Whether the proposed use is to be characterised as a reception centre, a home business or a use not listed.
2)Whether the proposed use is exempt from requiring planning approval under cl 8.2(e) of LPS 1.
3)Whether, if discretion is available, the proposed use would have an adverse impact on the amenity of the locality.
4)Whether the proposed use would have satisfactory access and egress and have impact on the traffic flow and safety of the locality.
DR 177 of 2011
1)Whether the direction in the s 214 notice should be confirmed, varied or set aside.
Discussion
DR 486 of 2011
Issue 1: whether the proposed use is to be characterised under LPS 1 as a reception centre, a home business or a use not listed
The meaning of 'reception centre' is defined at Sch 1 s 2 of LPS 1 as follows:
… premises used for functions on formal or ceremonial occasions but not for unhosted use for general entertainment purposes[.]
The Tribunal has concluded that the proposed use is most properly characterised as a 'reception centre' as defined under LPS 1. The proposed use falls squarely within the definition for a reception centre because the use would be 'premises used for functions on formal or ceremonial occasions'.
The proposed predominant activities of weddings, commitment ceremonies and christenings are all formal or ceremonial occasions. LPS 1 does not include a definition of 'function', but, as stated by the respondent, The Macquarie Dictionary (4th edition, Macquarie, Sydney, 2006) relevantly includes the following meaning for 'function':
2. any ceremonious public or social gathering or occasion.
The proposed uses are consistent with this meaning of 'function' within the definition of 'reception centre'. In addition, the functions to be held at the site would usually be hosted either by the couple involved, a bride's parents or the parents of a baby, with invitations issued to those attending.
The applicant referred to what she said was the common understanding of a reception centre, and this was to provide, after a wedding, for example, activities such as a catered meal, the serving of drinks, music, and often dancing.
The Tribunal accepts that many reception centres might include these activities, but under the definition of 'reception centre' in LPS 1, these additional activities are not required for a use to fall squarely within the definition.
At the hearing, the respondent argued that because a reception centre was an 'X' use in the Rural Residential zone in the zoning table of LPS 1, the use could not be permitted.
The Tribunal has concluded that the proposed use is properly characterised as a reception centre, as defined in LPS 1. It is therefore, as submitted by the respondent, a use that is not permitted in the Rural Residential zone. If a use is not permitted, there is no discretion available to consider whether the use might be allowed. The proposed use cannot be granted planning approval under the provisions of LPS 1.
Although the Tribunal has reached the conclusion that the proposed use cannot be permitted in the zone because there is no discretion to do so available in LPS 1, it is appropriate that a comment be made on the applicant's submission that the use might otherwise be characterised under LPS 1 as either a home business or a use not listed.
Under Sch 1 of LPS 1, 'home business' is defined to mean:
… a business, service or profession carried out in a dwelling or on land around a dwelling by an occupier of the dwelling which
(a)does not employ more than 2 people not members of the occupier's household;
(b)will not cause injury to or adversely affect the amenity of the neighbourhood;
(c)does not occupy an area greater than 50 square metres;
(d)does not involve the retail sale, display or hire of goods of any nature;
(e)in relation to vehicles and parking, does not result in traffic difficulties as a result of the inadequacy of parking or an increase in traffic volumes in the neighbourhood, and does not involve the presence, use or calling of a vehicle more than 3.5 tonnes tare weight; and
(f)does not involve the use of an essential service of greater capacity than normally required in the zone[.]
The applicant argued that, because there was no meal, music and dancing on the site, the use could not be a reception centre. This submission was based on what she considered to be the usual meaning of a reception centre. The submission of the applicant was that if a definition of the use was required, then her proposed use best fitted the 'home business' definition of LPS 1.
The applicant tested her proposed business against the six criteria listed under the definition of 'home business' in LPS 1. She argued that the use satisfied each of the criteria.
Mr Iliya Hastings, a town planner called by the respondent, agreed that the proposed use would satisfy the criteria listed under the definition of 'home business' in LPS 1 except for (b), because he considered the proposed use would adversely affect the amenity of the neighbourhood, and (e), because he considered that vehicles attracted to the site would result in traffic problems in the neighbourhood.
Mr Hastings also made the comment that it might be that some form of reception centre might satisfy the requirement for a home business if it was of a much smaller scale than the proposed use. Mr Hastings further commented, however, that, if reducing the scale of a use was the means by which the use might become a home business and be allowed, then most uses within the zoning table of LPS 1 might be allowed in the zone.
The Tribunal notes that LPS 1 only mentions the use 'home business' in the use classes of the zoning table and in the Appendix 1 definition. LPS 1 provides no assistance on how a use might be classed as a home business and is silent on how a home business application might be assessed, other than the listing of the criteria in the definition.
The Tribunal has formed the view that the proposed use cannot be considered as a home business. The Tribunal considers it cannot be correct that a use otherwise prohibited in the zone can be allowed if it is placed adjacent to or within a house. A reception centre is a use that is not permitted in the Rural Residential zone under LPS 1. The Tribunal considers it would defeat the objectives of LPS 1 if the chosen 'X' designation in the zoning table could be circumvented by carrying out the use on a lot which contained a house. The Tribunal does not believe such a means of allowing a use otherwise not permitted can be consistent with orderly and proper planning.
The applicant alternatively submitted that if the proposed use was not a reception centre or was not a home business, it must be considered as a use not listed. The applicant restated what she considered a reception centre should comprise, and again said her proposed use would not include a meal, music or dancing. The use would be infrequent, lowkey, short duration ceremonies, with guests leaving immediately to go to a reception with dinner and dancing elsewhere. She said her submission that the use was not listed in LPS 1 was helped by the fact that her proposed use was a touristrelated activity and LNRSPP, at LUS 1.25, stated that such activities were suitable for the locality.
As stated above, the Tribunal has formed the view that the use cannot be a use not listed under LPS 1 because it is properly characterised as a reception centre. It can be commented that, in any event, characterising the use as a use not listed under LPS 1 would not assist the applicant. For a use not specifically mentioned in the zoning table to be allowed, it has to be determined that the use is consistent with the objectives of the zone. The objectives of the Rural Residential zone, at cl 4.2.4.2(c) of LPS 1, include the use being consistent with the amenity of the locality and the conservation of landscape attributes of the land. Under issue 3 below, the Tribunal concluded that the proposed use would not satisfy this objective and so would not be allowed.
In respect of issue 1, the Tribunal has found that the proposed use falls directly within the use class 'reception centre', as defined in LPS 1, and is therefore not permitted in the Rural Residential zone.
Issue 2: whether the proposed use is exempt from requiring planning approval under cl 8.2(e) of LPS 1
LPS 1 at cl 8.1 provides that no development must be commenced or carried out without planning approval having first been obtained. Exceptions to this standard requirement are set out at cl 8.2 of LPS 1, and these include cl 8.2(e), referred to by the applicant.
The applicant argued that her proposed use would satisfy cl 8.2(e) of LPS 1 because the activity would be in existence for less than 48 hours, lasting only two to three hours, and was temporary, with chairs and decorations being removed once the ceremony was over. The applicant said that the proposed use should not, therefore, require planning approval under LPS 1.
The Tribunal notes that the applicant was unrepresented at the hearing, but would comment, with respect, that cl 8.2(e) of LPS 1 has been misconstrued. Clause 8.2(e) of LPS 1 is directed to 'works'. 'Works' is not defined in LPS 1, but the Tribunal considers, in this context, 'works' are usually of short duration and associated with construction, alteration, repair, refurbishment, and the like, of a building, equipment or a site, and are associated with both public infrastructure and private land use. Works are required to be conducted one time only to achieve a particular purpose and, once that purpose is achieved, the work ceases. A planning approval for a site is different from 'works' in that, if granted, it can be conducted before, during and after works consistent with any conditions imposed, including allowed hours of operation, until such time as the business is ceased and no longer operates.
The Tribunal has found that cl 8.2(e) of LPS 1 does not assist in determining whether the proposed use might be allowed.
Issue 3: whether, if discretion is available, the proposed use would have an adverse impact on the amenity of the locality
The Tribunal has found that there is no discretion to allow the use. The parties did, however, make submissions on what impact they considered the proposed use would have on the amenity of the locality, and the Tribunal would make the following comments.
The applicant asserted there would be no adverse impact on the local amenity because the activity would be of only a few hours' duration once a week. The applicant said there would be little noise impact because of the limited amplification of sound and the setbacks from other houses. Vegetation would generally screen the use and dampen noise.
The Tribunal notes that the existing amenity of the locality is one of dwellings on 1 hectare to 2 hectare partly vegetated lots, mostly used for residential purposes, even if the occupants of some dwellings are holidaymakers.
The Tribunal is of the view that the proposed ceremonies would have an impact on the local amenity for the duration that they are occurring. This is because the use would attract to the area, in concentrated periods, activities that would not normally be expected in the locality. The respondent submitted that up to 25 vehicles might be attracted to a ceremony on the site, and the Tribunal agrees with this assessment. Vehicles would arrive within a short space of time and then those same vehicles would depart within a short space of time. This concentration of vehicles would be unusual in this locality. The vehicles attracted to the site would be parked outside the building envelope adjacent to the driveway between Cypress Avenue and the house. Having what amounts to a small car park in this locality is unusual. The Tribunal does not believe that the screening available would be sufficient to obscure the parking area of this use.
The Tribunal was not provided with any noise reports, but it would not be unreasonable to conclude that 50 people at one gathering, which would be a happy event, would normally generate noise arising from the social interaction, and this would be combined with the noise of car doors opening and closing and vehicles starting. This noise would be an intrusion not normally experienced in the locality. It is appreciated that these amenity impacts would not be continuous throughout the week, but it is considered that there would be an adverse impact on the local amenity on the occasions they would occur.
Issue 4: whether the proposed use would have satisfactory access and egress and have an impact on traffic flow and safety in the locality
The Tribunal has concluded that the use cannot be allowed but, again, the parties made submissions on this issue and the Tribunal would make the following comments.
The crossover to the site is in Cypress Avenue about 15 metres from the corner with Roxburgh Road adjacent to a vegetated verge. The respondent considered this access unsafe for a commercial use. The applicant accepted that a relocated crossover would be safer, and identified a site about 15 20 metres to the north, nearer to the creek.
The Tribunal agrees that a safer crossover location would be appropriate for a use that would attract to the site vehicles in the concentration likely, and with drivers who would be unfamiliar with the locality.
No traffic study has been carried out by either party. The Tribunal is of the view that the road system would have the capacity to accommodate up to an additional 25 vehicles in what is otherwise a low density residential area. This is because the road is essentially a culdesac, and it is suggested that the number of properties in this culdesac would not appear to generate anywhere near the capacity of what is a suburban minor road system.
In respect of road safety, Roxburgh Road has an unexpected tight bend close to Caves Road. The Tribunal considers, however, that a normal driver, having slowed to enter Roxburgh Road from Caves Road for the first time, could reasonably be expected to satisfactorily negotiate this corner.
As stated above, no traffic study for the proposed use has been carried out but, from the information available, the Tribunal would comment that the vehicles associated with the proposed use would appear to have a manageable impact on local traffic flow and safety.
Conclusion
DR 486 of 2011
The Tribunal has determined that, under LPS 1, the proposed use is properly characterised as a reception centre. Under the zoning table of LPS 1, a reception centre is a use that is not permitted in the Rural Residential zone. There is therefore no discretion available to consider any decision other than refusal of the application.
DR 177 of 2011
Given the conclusion reached in the matter of DR 486 of 2011, the directions given in the respondent's s 214 notice is appropriate and therefore the s 214 notice should stand as issued.
Orders
DR 486 of 2011
1.The application for review is dismissed.
2.The application for planning approval for the development of a reception centre on Lot 11 Cypress Avenue, Margaret River is refused.
DR 177 of 2011
1.The application for review of the direction issued in the notice given under s 214(3) of the Planning and Development Act 2005 (WA) is dismissed.
2.The decision of the Shire of AugustaMargaret River to issue the s 214(3) notice is confirmed.
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
0
0
4