STARGAZE ASSETS PTY LTD and CITY OF SWAN
[2016] WASAT 106
•6 SEPTEMBER 2016
STARGAZE ASSETS PTY LTD and CITY OF SWAN [2016] WASAT 106
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 106 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:88/2016 | 17 JUNE 2016 | |
| Coram: | MS L EDDY (MEMBER) | 6/09/16 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | STARGAZE ASSETS PTY LTD CITY OF SWAN |
Catchwords: | Town Planning Application to amend existing development approval Landscape zone Existing approval to crush and screen construction and demolition waste for use as fill on same site Proposed amendment to allow crushed and screened material to be used as fill at other sites Preliminary issue Whether proposed amended development capable of approval Classification of land use Whether 'industry' use |
Legislation: | City of Swan Town Planning Scheme No 17, cl 4.4.2, cl 4.3, cl 4.3.3(b), Pt A, Sch 1 Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 10(4), Sch 2 Planning and Development Act 2005 (WA), s 252(1), s 257B |
Case References: | GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353 Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 |
Orders | 1. The application is dismissed.,2. The decision of the respondent, made on or about 9 March 2016, to refuse the application to amend the existing development approval DA-261/2012/A, is affirmed. |
Summary | The application for review concerned the respondent's refusal to approve a requested amendment to an existing development approval in relation to the applicant's land. The existing development approval authorised the bringing of demolition and construction waste materials to the site, the crushing and screening of that material and the use of the resulting end product as fill to rehabilitate an excavated area of the site. The applicant wished to amend that development approval so as to allow it to take the end product from the site and use it as fill to rehabilitate land being operated by entities related to the applicant. ,The respondent refused to allow the amendment on the basis that it was the City of Swan's view that the proposed amendment transformed the use of the site into an industrial use, which was not permitted in the relevant zone.,The Tribunal determined that it had to consider the application as if it were a new development application incorporating all of the activities contemplated by the proposed amended development, including those aspects of the development that were currently authorised by the existing development approval. It was determined that the proposed amended development was properly classified as use of the land for industry. As such, the proposed amended development was not capable of being permitted in the relevant zone. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : STARGAZE ASSETS PTY LTD and CITY OF SWAN [2016] WASAT 106 MEMBER : MS L EDDY (MEMBER) HEARD : 17 JUNE 2016 DELIVERED : 6 SEPTEMBER 2016 FILE NO/S : DR 88 of 2016 BETWEEN : STARGAZE ASSETS PTY LTD
- Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town Planning - Application to amend existing development approval - Landscape zone - Existing approval to crush and screen construction and demolition waste for use as fill on same site - Proposed amendment to allow crushed and screened material to be used as fill at other sites - Preliminary issue - Whether proposed amended development capable of approval - Classification of land use - Whether 'industry' use
Legislation:
City of Swan Town Planning Scheme No 17, cl 4.4.2, cl 4.3, cl 4.3.3(b), Pt A, Sch 1
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 10(4), Sch 2
Planning and Development Act 2005 (WA), s 252(1), s 257B
Result:
Application dismissed
Summary of Tribunal's decision:
The application for review concerned the respondent's refusal to approve a requested amendment to an existing development approval in relation to the applicant's land. The existing development approval authorised the bringing of demolition and construction waste materials to the site, the crushing and screening of that material and the use of the resulting end product as fill to rehabilitate an excavated area of the site. The applicant wished to amend that development approval so as to allow it to take the end product from the site and use it as fill to rehabilitate land being operated by entities related to the applicant.
The respondent refused to allow the amendment on the basis that it was the City of Swan's view that the proposed amendment transformed the use of the site into an industrial use, which was not permitted in the relevant zone.
The Tribunal determined that it had to consider the application as if it were a new development application incorporating all of the activities contemplated by the proposed amended development, including those aspects of the development that were currently authorised by the existing development approval. It was determined that the proposed amended development was properly classified as use of the land for industry. As such, the proposed amended development was not capable of being permitted in the relevant zone.
Category: B
Representation:
Counsel:
Applicant : Mr M Hotchkin
Respondent : Mr C Slarke
Solicitors:
Applicant : Hotchkin Hanly
Respondent : McLeods
Case(s) referred to in decision(s):
GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
Introduction
1 In August 2012, Stargaze Assets Pty Ltd (applicant) requested development approval from the City of Swan (respondent) to crush and screen inert construction and demolition waste materials on Lot 5 (No 91) Walyunga Road, Bullsbrook (site) for use as fill to rehabilitate a sand excavation area on the site. In October 2012, the respondent granted development approval subject to a number of conditions (existing development approval). The existing development approval was given approval number DA261/2012/A by the respondent. Condition 1 of the existing development approval provided that:
This approval is for 'Use Not Listed' Rehabilitation of the sand excavation area, limited to screening and crushing of inert material for the filling of the excavation area'[.]
2 By application dated 27 November 2015, the applicant applied to amend the existing development approval (proposed amended development). Such an application is able to be made pursuant to cl 77 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations). Regulation 10(4) of the LPS Regulations provides that '[t]he provisions in Schedule 2 [of the LPS Regulations] are deemed provisions, being provisions to which section 257B of the [Planning and Development Act [2005] (WA)] applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text'. As such, cl 77 of Sch 2 of the LPS Regulations is incorporated as part of the City of Swan Local Planning Scheme No 17 (LPS 17 or Scheme) and prevails over any inconsistent provision in LPS 17: s 257B of the Planning and Development Act 2005 (WA) (PD Act).
3 The amendment sought in the proposed amended development is an amendment to condition 1 of the existing development approval. The proposed form of amended condition 1 is:
This approval is for a 'Use Not Listed' Rehabilitation of sand excavation areas, limited to the screening and crushing of inert material for the purposes of filling (rehabilitating) excavation areas and for ancillary works operated by Brajkovich Demolition and Salvage Pty Ltd and its affiliated companies.
4 On or about 9 March 2016, the respondent refused the application to amend the existing development approval. The reasons given for the refusal were:
1. The modification of condition one to alter the extent of the approved land use is considered to substantially change the development approved which is therefore inconsistent with clause 77(1)(c);
2. The modification to condition one of the approval to insert use of materials for ancillary works operated by Brajkovich Demolition and Salvage Pty Ltd and its affiliated companies would alter the approved land use from a 'Use Not Listed' with the development falling within the definition of 'Industry General' which is an 'X' use (not permitted) in the Landscape zoning under the City's Local Planning Scheme No. 17
5 On 22 March 2016, the applicant lodged an application with the Tribunal pursuant to s 252(1) of the PD Act seeking review of respondent's decision.
6 By order dated 15 April 2016, Deputy President Parry (as he was then) listed the matter for the hearing of a preliminary issue. The preliminary issue was identified as being:
Whether the development the subject of proposed amended condition 1 is capable of approval under the City of Swan Local Planning Scheme No 17.
Facts
7 The applicant is the owner of the site. The site is leased to Brajkovich Demolition and Salvage Pty Ltd (BDS), an entity related to the applicant which is in the business of construction and demolition operations.
8 The site is located within the Landscape zone under LPS 17.
9 The activities that occur under the existing development approval can be summarised as follows.
a) The construction and demolition materials comprise a mixture of bricks, tiles, concrete, sand, gravel, PVC piping, mixed steel and some soils. The materials do not include toxic materials.
b) The construction and demolition materials are primarily sourced from BDS' own demolition operations throughout the metropolitan area, with additional material accepted from other demolition operators.
c) The construction and demolition materials are transported to the site via semi-tippers where they are sorted and stockpiled.
d) Once sorted and stockpiled, the materials are crushed and screened on site to remove a small percentage of material that is inappropriate for use as fill material (such as steel, plastic and green waste).
e) The crushed and screened fill material is then placed in the rehabilitation area to reinstate the volume of sand that has historically been removed from the site and return the site to preexcavation levels.
10 Pursuant to the proposed amended development, the activity described in paragraph (e) above is proposed to be changed so as to allow the crushed and screened fill material to be used as fill for rehabilitation of sand excavation areas outside of the site that are operated by BDS and its affiliated companies
Respondent's submission
11 The respondent submits that the proposed amended development is properly classified as either 'industry - general' or 'industry light' under LPS 17. Pursuant to the Zoning Table, at cl 4.3 of LPS 17, 'industry - general' and 'industry - light' are 'X' (not permitted) uses. Therefore, the respondent submits, the proposed use is not capable of approval.
12 The respondent says that in determining how to classify the land use contemplated by the proposed amended development, it is necessary to look not just at the new activity that would be allowed if the proposed amended development were approved. Rather, it is necessary to consider the proposed amended development as a whole. This is because cl 77 of Sch 2 of the LPS Regulations requires that an application to amend a development approval is to be 'dealt with under [Pt 8 of Sch 2 of the LPS Regulations] as if it were an application for development approval'.
13 The respondent submits that the proposed amended development involves all of the following activities:
(a) The construction and demolition materials comprise a mixture of bricks, tiles, concrete, sand, gravel, PVC piping, mixed steel and some soils. The materials do not include toxic materials.
(b) The construction and demolition materials are primarily sourced from BDS' own demolition operations throughout the metropolitan area, with additional material accepted from other demolition operators.
(c) The construction and demolition materials are transported to the site via semi-tippers where they are sorted and stockpiled.
(d) Once sorted and stockpiled the materials are crushed and screened on site to remove a small percentage of material that is inappropriate for use as fill material (such as steel, plastic and green waste).
(e) The crushed and screened fill material is then used for the purposes of filling (rehabilitating) excavation areas and for ancillary works operated by Brajkovich Demolition and Salvage Pty Ltd and its affiliated companies.
14 In order to determine whether these activities are permissible in the Landscape zone, it is necessary to assess whether they fall within a land use classification mentioned in the Zoning Table (as defined in Sch 1 of LPS 17) or whether they can reasonably be determined as falling within the type, class or genus of activity of any of those defined use classes.
15 The land use classifications that the respondent submits are relevant are defined in Sch 1 of LPS 17 in the following way:
'industry' means premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances and includes the use of premises on the same land used for
(a) the storage of goods;
(b) the work of administration or accounting;
(c) the selling of goods by wholesale or retail: or
(d) the provision of amenities for employees;
incidental to any of those industrial operations;
'industry general' means an industry other than a cottage, extractive, light, mining, noxious, rural or service industry;
'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 do not cause any injury to or adversely affect the amenity of the locality; and
(b) the establishment or conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services[.]
16 The respondent submits that the activities contemplated by the proposed amended use, and in particular the crushing and screening of materials, involves the processing of materials. As such, use of the site for these activities is properly classified as a form of 'industry'. It is irrelevant, the respondent says, whether the use is more particularly classified as 'industry general' or 'industry light' as both of these uses are prohibited within the Landscape zone.
Applicant's submissions
17 The applicant submits that on the proper construction, the proposed amended development is a 'use not listed'. As such, so long as the proposed amended development is, or may be, consistent with the objectives of the Landscape zone, it is capable of approval under LPS 17 pursuant to cl 4.4.2 of LPS 17.
18 Clause 4.4.2 of LPS 17 provides:
If 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 class 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.
19 This clause is based on a Model Scheme Text provision and a substantially similar provision can be found in most local planning schemes. A commonly used shorthand reference to a use that is not specifically mentioned in the Zoning Table and that does not fall within the type, class or genus of activity of any other use class is a 'use not listed'.
20 The applicant submits that under the existing development approval it is authorised to undertake a range of activities which include transportation via semitippers of materials to the site, the sorting and stockpiling of the materials brought to site, the crushing and screening of those materials, and the placement of the crushed and screened material on the site in order to fill an area of prior excavation. In the proposed amended development the only change the applicant seeks is permission to take the crushed and screened material to other sites in order to rehabilitate, by way of fill to areas of historical excavation, those sites. Therefore, when determining the preliminary issue, it is necessary to consider how this activity, that is, the transporting of crushed and screened material from the site to other sites, should be characterised.
21 The applicant says that the transportation of the crushed and screened material off site for the purposes of filling excavated areas elsewhere, is not capable of transforming the current classification of the use from a 'use not listed'. In any event, transporting crushed and screened material to somewhere outside of the site does not involve any 'manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repair'. The proposed amended development therefore does not come within 'industry' as defined in LPS 17.
22 The applicant submits that the proposed use does not come within any of the use classifications contained in LPS 17 and therefore it is properly characterised as a 'use not listed' and should be considered pursuant to cl 4.4.2 of LPS 17.
23 In addition, the applicant submits that the only additional activity contemplated by the proposed amended development (transporting fill off site) is not an independent use. It is asserted that this activity is ancillary to the current use of the site under the existing development approval.
24 In making this submission, the applicant did not assert that, pursuant to cl 4.3.3(b) of LPS 17, it does not need development approval for the proposed amended development. Clause 4.3.3(b) of LPS 17 provides that a change in the use of land from one use to another is permitted without any requirement for planning approval, if:
the change is to an incidental use that does not change the predominant use of the land, and complies with all the relevant development standards and requirements applicable under the Scheme including any requirements applicable under any current planning approval pertaining to the land.
25 Rather, the submission was that, on the basis that the additional activity involved in the proposed amended development is ancillary to the current use of the site, there was further support for the proposition that the existing classification of the land use as per the existing development approval continues to apply.
Determination of preliminary issue
26 As a starting point, it is useful to reproduce the full text of cl 77 of Sch 2 of the LPS Regulations.
Amending or cancelling development approval
(1) An owner of land in respect of which development approval has been granted by the local government may make an application to the local government requesting the local government to do any or all of the following
(a) to amend the approval so as to extend the period within which any development approved must be substantially commenced;
(b) to amend or delete any condition to which the approval is subject;
(c) to amend an aspect of the development approved which, if amended, would not substantially change the development approved;
(d) to cancel the approval.
(2) An application under subclause (1)
(a) is to be made in accordance with the requirements in Part 8 and dealt with under this Part as if it were an application for development approval; and
(b) may be made during or after the period within which the development approved must be substantially commenced.
(3) Despite subclause (2), the local government may waive or vary a requirement in Part 8 or this Part in respect of an application if the local government is satisfied that the application relates to a minor amendment to the development approval.
(4) The local government may determine an application made under subclause (1) by
(a) approving the application without conditions; or
(b) approving the application with conditions; or
(c) refusing the application.
28 This interpretation of cl 77 of Sch 2 of the LPS Regulations is, I think, consistent with the purpose of the requirement for development approval and, in the context where an approved development is proposed to be changed, with the desirability of considering the resulting amended development through the lens of the planning framework as it stands at that time. In many cases it would be extremely difficult, if not impossible, to sensibly apply relevant planning principles to the aspect of the development that is proposed to be amended in isolation, without consideration of that aspect as part of a whole development proposal.
29 In any event, in relation to this application, I am satisfied that the proposed amendment to condition 1 can only be properly determined by considering all of the activities of the resulting amended development as a whole. The existing development approval, being limited in the way it is, is necessarily limited in terms of the volume of waste demolition and construction materials that can be brought to site to be crushed and screened. This brings with it, indirectly, a limit to the period of time over which the activities involved in the development can occur. To remove the limitation on use of the crushed and screened material takes the development from a temporary use to an ongoing use. It also alters the volume of materials that may be brought to the site to be crushed and screened. In context, where the process of crushing materials is something that inherently has the potential to be a noxious process in terms of noise and dust generation, a change of this type is potentially significant. The change to the use of the site that would be authorised if the application to amend is approved is not properly reflected by the statement that the only difference is that trucks, which are already leaving the site, will leave the site with crushed and screened material on board instead of with no cargo.
30 How then, is the proposed amended development, including all of the activities as specified in the summary of the respondent's submissions above, properly classified in terms of land use?
31 On the face of it, the activities allowed under the existing development approval involve the processing of demolition and construction waste so as to create an end product. Putting aside for a moment what the end product is and what it is intended to be used for, the use of the site for such an activity falls squarely into the definition of 'industry' in LPS 17. The same activity (crushing and screening demolition and construction waste to create an end product) was considered to be properly characterised as 'industry' under a local planning scheme which defined that term in the same way as in LPS 17 in Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134, at [32] (Terra Spei).
32 However, it would seem that the respondent, at the relevant time, considered that the activities contemplated by the existing development approval, if done for the purpose of creating fill to rehabilitate the site, were of such a character that this use of the site no longer fit within the meaning of 'industry' for the purposes of LPS 17. While I have some hesitation in accepting this, the correctness or otherwise of the respondent's characterisation of the land use authorised by the existing development approval is not strictly before the Tribunal. However, what is before the Tribunal is the proper characterisation of those same activities done for the purpose of creating fill not just to rehabilitate the site, but also to rehabilitate other land on an ongoing basis.
33 The applicant submits that the purpose of the crushing and screening activities, whether restricted to use on the site, or approved for use on land outside the site, is what changes the nature of the use from an 'industry' use into a 'use not listed'. It is submitted that the inclusions in the definition of 'industry' in LPS 17, of, for example, the selling of goods, and providing amenities for employees, highlight that, in accordance with the ordinary understanding of the term, for a use to constitute 'industry' within the meaning of LPS 17, the relevant activities must be conducted for commercial gain. The applicant's submission is that creating fill for the purpose of rehabilitation of land operated by related entities does not involve commercial gain.
34 In GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353 (GMF), the Tribunal considered whether the crushing and screening of material in order to recycle that material, for use of some material in the applicant's own business and to give the rest of the material away, was 'in the course of trade or business for gain' and therefore properly characterised as 'industry' in the relevant local planning scheme. In that case, the Tribunal was considering a definition of 'industry' that was different to the definition of that term in LPS 17. In the local planning scheme being considered in GMF, 'industry' was relevantly defined as 'the carrying out of any process in the course of trade or business for gain[.]': see GMF, at [29]. That that definition is substantially different to a definition of 'industry' that is identical to the one in LPS 17 was confirmed in Terra Spei, at [70] [71]. Of note, however, was that the Tribunal, in considering the concept of 'gain', determined that a proposal that allowed the applicant to reduce the costs it would otherwise incur sending demolition and other waste to landfill, fit within that concept: see GMF at [35] [36].
35 The submission made by the applicant that there must be an element of commercial gain for an activity to be properly classified as 'industry' under LPS 17 is not persuasive. Such an interpretation requires the implication of a number of words that do not exist in the text of the Scheme. I am not satisfied that there is any acceptable basis to do so.
36 The text used to define 'industry' in Sch 1 of LPS 17 is plain. It focuses on specified types of operations and the use of premises (which in turn is defined, in Pt A of Sch 1 of LPS 17, to mean land or buildings) for those operations. When one further considers the various types of industrial uses in the Scheme (that is, 'industry - cottage', 'industry - extractive', 'industry general', 'industry - light', 'industry - mining', 'industry - noxious', 'industry - rural' and 'industry - service') it is apparent that, to a large degree, the focus in the definitions remains on those operations having regard to either the type of in-put or end product of the operations, or the impacts on amenity of the operations.
37 I am not satisfied that the definition of 'industry' in LPS 17 requires there to be any element of commercial gain before activities that would otherwise fit within the terms of the definition are to be properly classified as falling within that type of land use. I note that, if there were such a requirement, I am not persuaded that the proposed amended development does not involve some aspect of commercial gain. The ability to obtain fill from a related company rather than having to purchase it would surely mean that there is a resulting cost saving or commercial gain. It also seems apparent that the ability to re-cycle demolition and construction waste to create a useful end product would also result in a cost saving from not having to pay for the waste to be taken by a waste facility.
38 I am satisfied that the proposed amended development comes within the meaning of 'industry' under LPS 17. It is not in dispute, and I am satisfied that, if it is a form of industry, the proposed amended development would fall within either 'industry - general' or 'industry - light' under LPS 17. These uses are both prohibited in the Landscape zone. The proposed amended development is therefore not capable of being permitted under the Scheme.
Conclusion
39 The determination of the preliminary issue, identified by the Tribunal as 'whether the development the subject of proposed amended condition 1 is capable of approval under the City of Swan Local Planning Scheme No 17', is that the development is not capable of approval. Although this was a preliminary issue, the conclusion reached means that the Tribunal's determination is effectively a final one. Given the determination of the preliminary issue, the correct and preferable determination of the application for review before the Tribunal is that the decision of the respondent should be affirmed.
Orders
40 The Tribunal therefore makes the following order:
1. The application is dismissed.
2. The decision of the respondent, made on or about 9 March 2016, to refuse the application to amend the existing development approval DA-261/2012/A, is affirmed.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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