Siska Drilling Pty Ltd and ANOR and City Of Wanneroo
[2007] WASAT 164
•22 JUNE 2007
SISKA DRILLING PTY LTD & ANOR and CITY OF WANNEROO [2007] WASAT 164
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 164 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:140/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 22/06/07 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | SISKA DRILLING PTY LTD HAVELOCK ENTERPRISES PTY LTD CITY OF WANNEROO |
Catchwords: | Town planning Development application Automotive window tinting, surface protection, security system, cruise control and central door locking installation and anti-rust treatment "Tint-A-Car" franchise Business Precinct Whether proposed development is capable of approval Whether proposed development is "Industry" |
Legislation: | City of Wanneroo District Zoning Scheme No 2, cl 3.3 Clarkson District Centre Agreed Structure Plan, cl 3.0, cl 6.4.1 Factories Shops and Industries Act 1962 (NSW), s 4 Planning and Development Act 2005 (WA) s 238(4), s 252(1) |
Case References: | Ford Land Projects Pty Ltd v DB Real Estate Australia Ltd [2004] NSWSC 1014 GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353 |
Orders | 1. The application for review is dismissed.,2. Development approval for the use of Unit 4, 10 Pensacola Terrace, Clarkson for automotive window tinting, automotive surface protection, installation of automotive security systems, cruise control and central door locking and automotive anti rust treatment is refused. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SISKA DRILLING PTY LTD & ANOR and CITY OF WANNEROO [2007] WASAT 164 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 22 JUNE 2007 FILE NO/S : DR 140 of 2007 BETWEEN : SISKA DRILLING PTY LTD
- HAVELOCK ENTERPRISES PTY LTD
Applicants
AND
CITY OF WANNEROO
Respondent
Catchwords:
Town planning - Development application - Automotive window tinting, surface protection, security system, cruise control and central door locking installation and anti-rust treatment - "Tint-A-Car" franchise - Business Precinct - Whether proposed development is capable of approval - Whether proposed development is "Industry"
Legislation:
City of Wanneroo District Zoning Scheme No 2, cl 3.3
Clarkson District Centre Agreed Structure Plan, cl 3.0, cl 6.4.1
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Factories Shops and Industries Act 1962 (NSW), s 4
Planning and Development Act 2005 (WA) s 238(4), s 252(1)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicants : Mr MJ Hardy
Respondent : Mr CA Slarke
Solicitors:
Applicants : Hardy Bowen
Respondent : McLeods
Case(s) referred to in decision(s):
Ford Land Projects Pty Ltd v DB Real Estate Australia Ltd [2004] NSWSC 1014
GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353
(Page 3)
Summary of Tribunal's decision
1 This case concerned a development application to enable the operation of a "Tint-A-Car" franchise involving automotive window tinting, automotive surface protection, installation of automotive security systems, cruise control and central door locking and automotive anti-rust treatment. Development classified as "Industry - Light" is prohibited on the site of the proposed development. The Tribunal was called upon to determine whether the proposed development is capable of approval.
2 The Tribunal determined that the development is prohibited and incapable of approval. It involves processes for or incidental to altering or adapting motor vehicles - and hence is "Industry" as defined in the local planning scheme - which will not cause any injury to or adversely affect the amenity of the locality by reason of any emission and will not impose any undue load on existing or proposed services - and hence is "Industry - Light" as defined.
3 The application for review was dismissed and the development application was refused.
Introduction
4 These proceedings involve an application for review of the deemed refusal of a development application to enable use of Unit 4, 10 Pensacola Terrace, Clarkson (site) as a "Tint-A-Car" franchise. The site has an area of 290 square metres and is one of six units in a commercial building. A plan submitted with the development application indicates that approximately one-quarter of the site would comprise showroom, reception counter and office and that approximately three-quarters of the site would comprise an open work area including "car bay", "cutting table" and "work bench".
5 The proposed use includes:
• automotive window tinting, which involves the application of window film to motor vehicles;
• automotive surface protection, which involves paint glaze, fabric protection and vinyl protection;
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- • installation of automatic security systems (alarm upgrades and immobilisers), cruise control and central door locking; and
• automotive anti-rust treatment.
6 Four of the six units in the building appear to be used for motor vehicle related purposes. The signage on these units refers to automotive electrical and air-conditioning, muffler and exhaust, tyres and service centre. On one side of the complex is a building divided into three units which are each used for motor vehicle related purposes, namely Auto Bahn Mechanical and Electrical Services, AutoOne and Bob Jane T-Marts franchises. On the other side of the complex are two motor vehicle dealerships.
7 A preliminary issue was identified at the first directions hearing in the proceedings as to whether the proposed development is capable of approval under the City of Wanneroo District Zoning Scheme No 2 (Scheme) and the Clarkson District Centre Agreed Structure Plan (Structure Plan) which has effect under the Scheme.
8 The President formed the opinion under s 238(4) of the Planning and Development Act 2005 (WA) that the application is likely to raise complex or significant planning issues and listed the preliminary issue for determination by me entirely on the documents. The parties have each filed submissions and submissions in reply.
Is the proposed development capable of approval?
9 The site is zoned "Business Precinct" under the Structure Plan. In relation to land use, cl 6.4.1 of the Structure Plan states that the Business Precinct "should comprise predominantly mixed business/showroom uses with supporting bulky goods retail office and service commercial uses". The clause provides that, in addition to the uses permitted under the Scheme in the Business zone, "Motor Vehicle Repairs" and "Hire Service" are uses capable of approval in the exercise of discretion. It is common ground that the proposed development does not involve either of these uses. Clause 3.0 of the Structure Plan states that, unless provided for by specific requirements of the Plan, "all requirements shall be in accordance with the Scheme". Under the Scheme, in the Business Zone, the use class "Industry - Light" is a prohibited use and a use not listed is a use that is capable of approval in the exercise of discretion.
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10 The terms "Industry – Light" and "Industry" are defined in the Scheme as follows:
"Industry– Light: means an industry:
(a) in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises, will not cause any injury to, or will not adversely affect the amenity of the locality by reason of the emission of light, noise, electrical interference, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water or other waste products;
(b) the establishment of which will not, or the conduct of which does not, impose an undue load on any existing or proposed services for the supply or provision of water, gas, electricity, sewerage facilities, or any other like services."
"Industry: means the carrying out of any process for and incidental to:
(a) making, altering, repairing, ornamenting, painting, finishing, cleaning, packing, canning, adapting, breaking up or demolishing of any article or part of any article;
(b) winning, processing or treatment of materials;
(c) generation of electricity or the production of gas;
(d) the manufacture of edible goods;
and includes, when carried out on land upon which the process is carried out and in connection with that process, the storage of goods, any work of administration or accounting, or the wholesaling of, or the incidental sale of goods resulting from the process, and the use of land for the amenity of persons engaged in the process; but does not include:
(i) the carrying out of agriculture;
(ii) site work on buildings, work or land; and
(iii) in the case of edible goods, the preparation of food for retail sale from the premises.
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- (e) depots for bulk storage and distribution."
11 Mr CA Slarke, counsel for the City of Wanneroo (City) contends that the proposed development is prohibited because it falls within the definitions of "Industry" and "Industry - Light". In particular, Mr Slarke submits that the proposed use involves the carrying out of a process for altering, finishing or cleaning of an article or part of an article, namely a motor vehicle, and is, therefore, "Industry". The use will not adversely affect the amenity of the locality by reason of any emission and will not impose an undue load on any existing or proposed service and is, therefore, "Industry - Light".
12 In contrast, Mr MJ Hardy, counsel for the applicant, contends that the proposed development is capable of approval as an unlisted use under the Scheme. He submits that the proposed use is akin to "automobile repair area", which was a use class defined in a previous planning instrument, or a combination of uses under the Scheme definition of "service station" and the former definition of "automobile repair area", and therefore ought to be viewed as a distinct unlisted use.
13 Mr Hardy submits that paragraphs (a) - (d) of the definition of "Industry" "by their nature are activities involving various methods of manufacture or production of goods" and relies in support of this proposition on GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353. Mr Hardy also relies on the decision of the NSW Supreme Court in Ford Land Projects Pty Ltd v DB Real Estate Australia Ltd [2004] NSWSC 1014. Finally, Mr Hardy submits that none of the activities associated with the proposed use involve "altering", "finishing" or "cleaning" a motor vehicle, applying the ordinary meaning of those words.
14 I consider that the proposed development falls within the definitions of "Industry" and "Industry - Light" under the Scheme and is therefore incapable of approval. The proposed use involves processes for and incidental to altering or adapting an article or part of an article. The verb "alter" is relevantly defined in TheMacquarie Dictionary (4th ed, Macquarie, Sydney, 2005) at page 40 as "to make different in some particular; modify". The verb "adapt" is relevantly defined at page 15 as "to make suitable to requirements; adjust or modify fittingly".
15 Automotive window tinting, surface protection, security system, cruise control and central door locking installation, and rust treatment each involve processes for and incidental to making different in some
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- particular, modifying, making suitable to requirements or adjusting or modifying fittingly an article or part of an article. An article is relevantly "any thing" (GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale at [36]) and includes a motor vehicle.
16 There is no basis in the text, context or purpose of the definition of "Industry" to add the gloss advocated by Mr Hardy that paragraphs (a) - (d) of the definition by their nature are (only) activities involving various methods of manufacture or production of goods. Certainly, the definition includes, by the use of the word "making" in par (a) and "manufacture" in par (d), the manufacture or production of goods, but by the use of words such as "altering", "repairing", "ornamenting", "painting", "finishing", "cleaning" and "adapting" in par (a) and by the terms of par (b) and par (c) the definition clearly also refers to other activities.
17 GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale is not authority for Mr Hardy's proposition. In that case, the Tribunal determined that a proposed development constituted an "Industry" within the meaning of a similarly worded definition in a local planning scheme, because it involved the carrying out of a process for and incidental to the breaking up or demolition of an article. Although this process might be regarded as a form of manufacturing or production of goods, namely, on the facts of that case, road base, the Tribunal did not make its determination on that basis. Rather, it applied the words of the definition to the characteristics of the proposed development and found that they fell within the definition. The same process in this case leads to the same conclusion.
18 In Ford Land Projects Pty Ltd v DB Real Estate Australia Ltd Windeyer J accepted, at [30], that "uses under 'General Industrial' zoning require an element of manufacture". His Honour said that this flowed from a provision of the relevant planning instrument which restrained the responsible authority from granting consent to development that was not generally consistent with one or more of the objectives of the zone. The objectives of the zone generally related to industrial development and ancillary uses. The definition of "Industry" in the planning instrument included "any manufacturing process within the meaning of the Factories, Shops and Industries Act 1962". The definition of "manufacturing process" in s 4 of the Factories, Shops and Industries Act 1962 (NSW) was expressed in similar terms to par (a) of the definition of "Industry" in the Scheme. However, it is hardly surprising that Windeyer J accepted that uses in the "General Industrial" zone required an element of
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- manufacture given that the objectives of the zone concerned industrial development and the definition of "Industry" included any "manufacturing process" as defined. The definition of "Industry" in the Scheme in this case does not use the term "manufacturing process". Ford Land Projects Pty Ltd v DB Real Estate Australia Ltd is clearly distinguishable.
19 As "Industry", the proposed use also falls within the definition of "Industry - Light" under the Scheme, because it is an industry in which the processes carried on, the machinery used and the goods and commodities carried to and from the premises, will not cause any injury to, or will not adversely affect the amenity of the locality by reason of any emission and the establishment and conduct of which will not impose an undue load on existing or proposed services. It follows that the proposed development involves a prohibited use and is incapable of approval under the Scheme and the Structure Plan.
20 Clause 3.3 of the Scheme states that "if the use of the land for a particular purpose is not specifically mentioned in [the zoning table] and cannot reasonably be determined as falling within the interpretation of one of the use categories", the City may proceed to determine the application in the manner set out in that clause. However, for reasons discussed earlier, the proposed use falls within the interpretation of "Industry - Light" which is one of the use categories in the zoning table. Whether or not the proposed use could be categorized as a use akin to "automobile repair area" under the former instrument or as a combination of "service station" and "automobile repair area", it is not an unlisted use for the purposes of the applicable Scheme.
Conclusion
21 The Tribunal has determined that the proposed development involves "Industry" and specifically "Industry - Light" under the Scheme and is, therefore, prohibited by the terms of the Scheme and incapable of approval. It follows that the application for review must be dismissed and a decision made refusing development approval.
Orders
22 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. Development approval for the use of Unit 4, 10 Pensacola Terrace, Clarkson for automotive window tinting, automotive surface protection, installation of
- automotive security systems, cruise control and central door locking and automotive anti-rust treatment is refused.
I certify that this and the preceding [22] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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