STEWART and WESTERN AUSTRALIAN PLANNING COMMISSION - [2011] WASAT 2

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: STEWART and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 2

MEMBER: MR J JORDAN (MEMBER)

HEARD: 13 OCTOBER 2010

DELIVERED : 10 JANUARY 2011

FILE NO/S: DR 204 of 2010

BETWEEN: WAYNE ARTHUR STEWART
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Development Refusal Caretaker's dwelling Zoned Industrial under Greater Bunbury Region Scheme - Zoned Industry under City of Bunbury Town Planning Scheme No 7 Adjoins Bunbury Port Authority Reserve under Greater Bunbury Region Scheme Designated General Industry under Bunbury Port Authority Inner Harbour Structure Plan Planning Bulletin on caretakers' dwellings in Residential areas Recommendation for approval by local government Precedent considerations Land use conflicts Whether special circumstances Relationship to neighbouring industrial uses

Legislation:

City of Bunbury Town Planning Scheme No 7, Sch 1
Greater Bunbury Region Scheme, cl 5, cl 12(d), cl 16, cl 25, cl 27, cl 40
Planning and Development Act 2005 (WA), s 252(1)

Result:

The application for review is dismissed
The refusal of the Western Australian Planning Commission to grant development approval for a caretaker's dwelling on Lot 100 Estuary Drive, Bunbury is affirmed

Category: B

Representation:

Counsel:

Applicant: Mr C Garvey
Respondent: Mr D Leigh with Ms B Allen

Solicitors:

Applicant: Chris Garvey Lawyers
Respondent: State Solicitor's Office

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

Nicholls and Western Australian Planning Commission [2005] WASAT 40

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of a refusal by the Western Australian Planning Commission to grant planning approval for the development of a caretaker's dwelling on an industrial zoned lot adjacent to the Bunbury Port Authority area at Estuary Drive, Bunbury.
The Tribunal formed the view that a caretaker, and therefore a caretaker's dwelling, was not required for the industrial use made of the site. The Tribunal found that, notwithstanding the personal circumstances of the potential caretaker, absent were special circumstances in the industrial use made of the site required to justify setting aside the general presumption against caretakers' dwellings in industrial areas.
The Tribunal formed the view that development of a caretaker's dwelling in circumstances where a caretaker was not required would be inconsistent with the purpose of the industrial zoning under the Greater Bunbury Region Scheme, inconsistent with proposed development and infrastructure under the structure plan for the Bunbury harbour area and in conflict with industrial use made of neighbouring lots.
The Tribunal also concluded that an approval of the proposed development would set an undesirable precedent for further applications for caretakers' dwellings in this industrial area.
The Tribunal decided to dismiss the application and endorse the Commission's refusal of the application for approval of a caretaker's dwelling.

Introduction

These proceedings involve an application brought by Mr Wayne Stewart (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for review of the decision by the Western Australian Planning Commission (respondent or Commission) issued on 24 June 2010 to refuse an application for approval of the development of a caretaker's dwelling at Lot 100 Estuary Drive, Pelican Point (site), in the City of Bunbury.

Site and locality

The site is one of 10 industrial lots on the north side of Estuary Drive between land within the Bunbury Port Authority (BPA) boundary to the west and open space adjacent to Pelican Point to the east. About six of these lots appear to be developed for industrial purposes, with the remainder vacant.
The site has an area of 7,724 square metres with frontage of 50 metres to Estuary Drive at the southern boundary. The western boundary is about 160 metres, the eastern boundary 144.5 metres, and at the northern end, the site has frontage to wetlands at the edge of Koombana Bay. The site is level.
Set back about 60 metres from the road frontage and about 5 metres from the eastern boundary is a rectangular shed 15.4 metres wide and 61.6 metres long. The shed was described by the applicant as being imported from America and then assembled on the site. It appears to have been recently built and has the appearance of what might generally be described as a large, modern version of a 'nissan hut'. The shed has high sliding doors at each end.
In the 30 metres between the shed and the western boundary are stored concrete blocks, materials for a second shed, pieces of machinery and various miscellaneous items. Adjacent to the northern edge of the stored items are three shipping containers used for storage. Adjacent to the shipping containers next to the western boundary of the site are a caravan and an annexe. A setback area about 35 metres wide adjacent to the rear boundary is maintained as lawn.
Lot 101 adjoining the site to the east has a frontage about one and a half times that of the site but is not quite the same depth. On Lot 101 is a landscaping supply business which includes an office at the front, then a display area of manufactured landscaping items, and at the rear, opposite the location of the proposed caretaker's dwelling, stockpiles of various bulk landscaping items such as mulch, wood chips, composts and sands, and an area for the blending of soils and mulches. The business on Lot 101 operates seven days per week and has no restrictions on operating hours.
Adjoining the site to the west is Lot 2 Estuary Drive. Lot 2 has about twice the frontage of the site. In the southwest corner of Lot 2 is a building used as a commercial laundry. The remainder of Lot 2 is occupied by ANSAC Pty Ltd (ANSAC). Mr Daniel Griffin, General Manager of ANSAC who appeared as a witness for the respondent, described ANSAC as an engineering business involved in research, design, testing and the manufacture mostly of equipment and machinery associated with controlled use of heat, such as gold furnaces and kilns. Equipment ordered is manufactured on the site, which involves pressing metal, drilling, grinding, welding and painting.
In the centre of Lot 2 is a large building housing administration, design and research, and fabrication facilities for ANSAC. Adjacent to the eastern boundary of Lot 2 opposite the stored materials and the caravan on the site is a second building used as the blasting and painting facility. Blasting was described as a process whereby rust and corrosion was 'blasted' from fabricated metal products prior to painting. This building includes large exhausts. To the rear of the blasting and painting building is machinery described as the research and development facility where equipment and processes are tested. When required, the testing facility is run continuously for several days. The testing facility has an exhaust stack. To the rear of the testing area adjacent to the rear boundary is a water storage tank.
Adjacent to the western boundary of Lot 2 is the boundary of the BPA controlled area. This includes, further to the west, the Bunbury inner harbour. The eastern side of the inner harbour includes bins containing alumina, bulk storage sheds and, about 700 metres from the site, stockpiles of woodchips. At the western side of the inner harbour are further stockpiles of woodchips, and sheds containing mineral sands. About 250 metres to the west of the site on Estuary Road is a level crossing for the railway serving the inner harbour.
Land to the south of the site over Estuary Drive is also within the BPA boundary, but in this locality, is still rural. About 750 metres east of the site along Estuary Drive is the suburb of Pelican Point and Sanctuary Golf Resort. East beyond Pelican Point are the suburbs of Australind and Eaton.

Planning framework

The site is zoned Industrial under the Greater Bunbury Region Scheme (GBRS).
The purposes of the GBRS are set out at cl 5. These include:
…
(b)provide for the zoning of land for living, working and rural land uses;
…
(f)identify and protect land having strategic importance for industrial and future urban use.
The purpose of land classified industrial under the GBRS is set out at cl 12(d) as follows:
Industrial to provide for manufacturing industry, the storage and distribution of goods and associated uses[;]
Clause 27 of the GBRS states:
(1)The Commission may by resolution require development on land zoned under this Scheme to have the planning approval of the Commission before it is commenced or carried on.
(2)The resolution may be made so as to apply to
(a)all land, or a specified area of land, zoned under this Scheme; and
(b)all development or classes of development or a specified development or class of development on land zoned under this Scheme.
(3)The notice of the resolution is to be
(a)published in the Gazette; and
…
Notices in the Government Gazette of 19 December 2008 of resolutions by the Commission, under cl 27 and cl 16 respectively of the GBRS, include a requirement that applications for development of land which abuts regional open space under the GBRS must be referred to the Commission for determination and that the delegation to the local government to determine such applications was revoked. The proposed development is such an application.
Clause 40 of the GBRS lists matters to which regard is to be had, where relevant, when considering an application for planning approval. These include:
…
(a)the aims and provisions of the Scheme and any other local planning schemes in effect within the region;
(b)the requirements for orderly and proper planning including any relevant proposed Scheme amendment, or new local planning scheme or amendment, for which consent for public submissions to be sought have been granted;
(c)any State planning policy;
…
(e)any policy or strategy of the Commission and any policy adopted by the government of the State;
…
(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;
…
(y)any relevant submissions received on the application;
(z)any recommendations received from a local government under clause 36(3);
…
(zb)any other planning consideration the Commission considers relevant.
Estuary Road and land within the BPA boundary are within the port installations reserve under the GBRS. Clause 25 of the GBRS lists types of development on reserved land that does not require the planning approval of the Commission. These include:
…
(f)development on reserved land owned or vested in a public authority that is
…
(ii)works on land reserved for Port Installations for the purpose of or in connection with a port;
The site is zoned Industry in the City of Bunbury Town Planning Scheme No 7 (TPS 7). TPS 7 defines industry at Sch 1 as follows:
… premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances …
The zoning table of TPS 7 lists uses permitted in areas zoned Industry. Under TPS 7, 'P' means that a use is permitted, 'D' means that a use is not permitted unless the local government has exercised discretion and granted planning approval, and 'A' means a use is not permitted unless the local government exercises discretion and grants planning approval after advertising the proposal.
The zoning table of TPS 7 indicates that a caretaker's dwelling is an 'A' use under the industry zoning. A caretaker's dwelling is defined in TPS 7 as:
… a dwelling on the same site as a building, operation, or plant, and occupied by a supervisor of that building, operation or plant;
Other uses listed in the zoning table of TPS 7 for the industry zone include cottage industry (P), general industry (P), light industry (P), noxious industry (A), port industry (D), rural industry (D) and service industry (P). There is therefore a reasonable expectation that uses in these classes would be considered for the site and adjoining industrial lots.
The BPA has prepared the Bunbury Port Inner Harbour Structure Plan (IH Structure Plan). The boundary of the IH Structure Plan area extends beyond the port installations reserve to include the site and the nine other lots along Estuary Drive zoned Industrial under the GBRS.
The purpose of the IH Structure Plan is:
… to achieve formal adoption as a policy document to guide development and decision-making within the inner harbour … provide greater certainty of land use and development for port users, the BPA and other decisionmaking authorities, neighbouring landowners and the wider community.
Table 3 of the IH Structure Plan, entitled 'Applying Use Classes to Indicative Land Uses in the Structure Plan' states that a caretaker's dwelling is an 'A' use under the 'general industry' zoning. The site and the neighbouring industrial lots are shown on the IH Structure Plan as zoned 'general industry'. An 'A' use under the IH Structure Plan is a use in which discretion can be exercised and approval granted.
Clause 8.4 of the IH Structure Plan states:
The private properties on Estuary Drive adjacent to Koombana Bay are presently zoned General Industry. Uses according with that zoning are expected to be compatible with the port operations.
The respondent referred to Western Australian Planning Commission Planning Bulletin No 70 Caretakers' Dwellings in Industrial Areas, November 2004 (PB 70). The objectives of PB 70 are stated to be:
a)To discourage the establishment of residential uses in industrial areas which may compromise the integrity of industrial areas and create unacceptable residential environments.
b)To provide for caretakers['] dwellings in industrial areas in limited circumstances and subject to appropriate planning controls.
In section 6, PB 70 states that a local planning strategy should create a general presumption against the establishment of caretakers' dwellings in industrial areas to avoid potential conflict and associated environmental problems. Principles listed to apply in the preparation of local planning policies and town planning schemes include the following:
•caretakers' dwellings should be a prohibited use in zones which are designed to accommodate strategic industry and industries of a noxious or hazardous nature and zones which are in proximity to existing or proposed major infrastructure or other potentially incompatible uses;
•caretakers' dwellings should generally be prohibited in zones designed for general industrial uses unless there are special circumstances which justify their establishment in such areas.
•caretakers' dwellings should be considered a discretionary use in light industry, service industry or commercial activity areas;
•caretakers' dwellings should be encouraged to be temporary rather than permanent structures; and
•the floor space of caretakers' dwellings should be limited to 100 square metres.

The proposed development

Proposed is the development of a single storey caretaker's dwelling of 'besser' block with a 'custom orb' roof on a concrete slab. The development might be characterised as a caretaker's dwelling because, consistent with the definition for a caretaker's dwelling in TPS 7 and referred to in PB 70, the dwelling would be occupied by the applicant who would be 'a supervisor of [the] building, operation or plant' on the site.
The development is shown on Suckling Civil and Structural Engineers Drawings 2009 4883 A00, A01, A02, A03, A04, Revision B dated 3 June 2010. The caretaker's dwelling would have a floor area of 100 square metres with a 3.5 metre wide verandah on all sides and comprise a kitchen, dining and living area, one bedroom, a bathroom and laundry facilities. The building would be set back 5 metres from the western boundary and, at its closest point, 5.2 metres from the northern boundary adjacent to the regional open space.

The refusal and the issues

The reasons for refusal were reflected in the issues raised by the Commission for determination. The issues raised by the Commission included:
1)Whether the proposed caretaker's dwelling is consistent with the industrial zoning under the GBRS.
2)Whether the proposed caretaker's dwelling is consistent with PB 70.
3)Whether the proposed development could compromise the integrity of Bunbury Inner Harbour development and infrastructure.
4)Whether the proposed development would create unacceptable land use conflict with the neighbouring industrial properties.
5)Whether special circumstances exist which justify the development of a caretaker's dwelling on the site.
6)Whether the proposed caretaker's dwelling would set an undesirable precedent for further applications for caretakers' dwellings in industrial areas.

Whether the proposed caretaker's dwelling is consistent with the industrial zoning under the GBRS

The Tribunal considers that there might be circumstances where a caretaker's dwelling would be an appropriate addition to an industrial activity carried out on a lot. This would be, as referred to in the introduction to PB 70:
The traditional caretaker's dwelling which provides limited residential accommodation as an incidental use to a predominant industrial activity [to] address genuine operational and site security issues …
Ms Marion Gartrell, a planner at the Department of Planning who appeared as a witness for the respondent, said that the site was incorrectly zoned for a caretaker's dwelling. In her witness statement she said that, under the GBRS:
The intention of the 'Industrial' zone is to provide areas for the exclusive use of industries including heavy and noxious industries. Caretakers' dwellings are not listed under this zone because they should only be considered in light industrial areas. Light industrial areas are accommodated in the 'Urban' zone in the GBRS.
The Tribunal could not find in the GBRS any basis for Ms Gartrell's contentions. The Tribunal considers the range of uses that might be contemplated for the Industrial zone consistent with the purpose of the zone at cl 12(d) of the GBRS are those for the Industry zone of TPS 7, including light industry, set out under planning framework above. The Tribunal is of the view that it is open to the Commission, and the Tribunal on review, to consider a caretaker's dwelling for a site used for each of the types of industrial activities allowed in the Industrial zone of the GBRS if a planning case can be made out. This is reflected in a caretaker's dwelling being a discretionary use in the industry zone under both TPS 7 and the IH Structure Plan.
The Tribunal considers that, to be consistent with the industrial zoning under the GBRS, a caretaker's dwelling must not prevent the potential for the purpose of the zone being achieved on the site and neighbouring lots, and must also be necessary for 'operational and site security' reasons to enable the industrial use of the site to be achieved.
To determine whether a caretaker's dwelling might be allowed on a lot in the industrial zone, it is necessary to establish whether a caretaker is required. The Tribunal does not accept that a caretaker's dwelling should be allowed as a matter of course because the occupier of the caretaker's dwelling owns or operates an industrial use on a lot. There must be the 'genuine operational and site security issues' referred to in PB 70 that require a caretaker to be present over and above the fact that there is industrial activity carried out or industrial machinery and equipment is stored on site.

The Tribunal has formed the view on the evidence that a caretaker, and therefore a caretaker's residence, is not required for the industrial use made of the site. Currently, the sand blasting business takes place elsewhere with the use of mobile equipment. There was no evidence of any process on the site that warranted after hours supervision. The parking of that equipment on the site after hours was not considered by the Tribunal to be part of operational use of the site that required caretaking.
It was not apparent to the Tribunal from the evidence that, in the future, when Mr Stewart erects the second shed which he said is proposed and changes to operating the business from the site, it will then be essential for operational reasons to have a resident caretaker. That, however, is a question that could be considered again in the future if the site is further developed for industrial use.
In respect to site security issues, the applicant made anecdotal references to incidents of petty crime in the locality. The Tribunal considers that the concerns raised by the applicant are the same for each industrial lot in this industrial zone and, it might be said, in any industrial zone. There was no evidence of materials or equipment sufficiently different from that usually found in an industrial area to warrant setting aside the presumption against allowing a person to live in the otherwise unacceptable residential environment of an industrial area. The issues of special circumstances and precedent are addressed below, but it can be said that the findings in these two issues do not support allowing the proposed development.
The applicant also referred to his concern to be present in case of further fires, such as had previously occurred in mulch piles on Lot 101, in grass on Lot 2 and in scrub in the regional open space to the rear which had spread onto the rear grassed area of the site. The evidence was that the applicant was not responsible for calling authorities to deal with the fires and, although in one instance he was able to assist with providing access through the site, he was not required to fight fires and they were dealt with as a matter of course by the appropriate authorities where required.
The Tribunal has formed the view that any caretaking would be incidental to the applicant living on the site and is not specifically required to ensure any industrial activity on the site can continue to operate. The issues of the relationship between a caretaker's dwelling and the industrial use made of the neighbouring lots and development in the IH Structure Plan area are addressed below. The comment can be made, however, that, in circumstances where a caretaker is not considered necessary, the residential use made of the caretaker's dwelling would be inconsistent with neighbouring industrial uses and the planning objectives of the IH Structure Plan. The Tribunal is of the view, therefore, that allowing the development of a caretaker's dwelling on the site would be inconsistent with the purpose of the industrial zoning under the GBRS.

Whether the proposed caretaker's dwelling is consistent with PB 70

The Commission has adopted PB 70, which states at '1. Introduction':
The purpose of this Bulletin is to highlight the issues associated with the establishment of caretakers' dwellings in industrial areas in the State and to outline a policy for dealing consistently with this demand through local planning strategies, town planning schemes and policy provisions. ...
Caretakers' dwellings are a discretionary use in the industrial zone in TPS 7, the IH Structure Plan and the GBRS. Normal planning practice is for decisionmaking authorities to develop policies to guide the exercise of discretion, but the City of Bunbury and the BPA have not adopted policies on caretakers' dwellings.
The GBRS does not include use class tables and so proposed developments are assessed on the basis of whether they are consistent with the purpose of the zone. The respondent did not identify an operational policy, often referred to as Development Control or DC Policy, directly relevant to caretakers' dwellings. In PB 70, however, the Commission has set out what it considers are the issues arising in respect to caretakers' dwellings. The Tribunal accepts that reference to PB 70 provides a guide to assessing the planning merits of a proposed caretaker's dwelling.
The first item in PB 70 which the respondent said the proposed development would be in conflict with was that the caretaker's dwelling would be a permanent rather than a temporary structure. The respondent said the proposed brick and iron dwelling would not be easily removed and was concerned the building would become a permanent residence. This would lead to conflict, because the use would be incompatible with port operations and development and industrial activity in the industrial zone.
Mr Stewart's response was to say that he would be happy to live in a caravan if that was preferred. To this, the respondent said that impact from emissions from industrial uses would be greater on a resident of a caravan than on a resident of a house.
The Tribunal notes that a brick structure is more permanent than a caravan, but there was no evidence submitted on what might be an acceptable temporary structure for a caretaker's dwelling. The proposed building is essentially a 100 square metre brick rectangle and might lend itself to some other use. The Tribunal considers, in this instance, it is the use itself rather than the proposed structure that is determinative of the matter.
Another item from PB 70 identified by the respondent was:
Caretakers' dwelling[s] should generally be prohibited in zones designed for general industrial uses unless there are special circumstances which identify their establishment in such areas.
Whether there are special circumstances that would justify allowing a caretaker's dwelling on the site is discussed below as a separate issue. The conclusion reached was that there are no special circumstances to warrant an approval being granted for the proposed development. In that regard therefore, the proposed development would be inconsistent with the reference in PB 70.
A third item in PB 70 raised by the respondent is that:
Caretakers' dwellings should be a prohibited use in zones which are designed to accommodate strategic industry and industries of a noxious or hazardous nature and zones which are in proximity to existing or proposed major infrastructure or other potentially incompatible uses.
As referred to above, the existing planning instruments do not prohibit caretakers' dwellings in zones designed for these types of industry or major infrastructure. The evidence presented to the Tribunal, however, was that the proposed caretaker's dwelling would be in a locality that includes port operations, which is a strategic industry and industries of a noxious or hazardous nature, including the landscaping supplies and mulches on Lot 101, and the manufacturing and scientific testing processes on Lot 2.
The Tribunal is of the view that the existing and potential future environment of this locality would be incompatible with a dwelling not necessary for the purposes of a caretaker on the site. As stated above, there are circumstances where a caretaker's dwelling may be warranted. The Tribunal has found, however, that there are not circumstances that can justify a caretaker's dwelling on the site. This leads to a conclusion that the proposed development would be inconsistent with this item of PB 70 because it would be incompatible with industrial uses and infrastructure in the locality.
The final item in PB 70 listed by the respondent was that caretakers' dwellings should be discouraged in industrial areas because residents:
… have poor accessibility to both commercial and community services …
The applicant pointed out that there were commercial and community services in nearby Eaton and, at a slightly greater distance, in Bunbury. The Tribunal accepts that access to such services is no greater at this site than it would be for residents in some suburbs of Bunbury. The implementation of the IH Structure Plan would make access to these facilities more circuitous, but this item in PB 70 is not considered by the Tribunal to contribute to the reasons why the proposed development should not be allowed.

Whether the proposed development could compromise the integrity of Bunbury Inner Harbour development and infrastructure

Clause 8.4 of the IH Structure Plan refers to the privatelyowned industrial zoned lots on Estuary Drive, which includes the site, and states that 'Uses according with that [industrial] zoning are expected to be compatible with the port operations'.
Mr David Lantry, Port Superintendant for the BPA, who appeared as a witness for the respondent, referred to the impact from emissions associated with bulk material stockpiles to the northwest of the site and the woodchip stockpiles to the west of the site. Mr Lantry also referred in the IH Structure Plan to a tank storage area for fuels and chemicals proposed immediately west of Lot 2, and an area for refrigerated and a normal container storage proposed immediately south of the site. He said it would be necessary to provide a barrier or buffer that would not otherwise be required to protect a residential use from industrial emissions. For example, a barrier constructed out of containers might be needed to protect a dwelling from noise and light emissions from the proposed container yard.
Mr Lantry referred to the BPA's letter to the Commission of 16 March 2010 objecting to the proposed use because it considered a caretaker's dwelling, which it considered a residential use, would be susceptible to the impacts from existing and likely future emissions in the IH Structure Plan area, particularly between 6 pm and 6 am.
The respondent said that, as the port developed, the impact of emissions on any residence, including from road and rail traffic, would increase. The concern was that this would lead to complaints which might affect the extent of a proposed use or hours of operation. It might affect whether a use proposed in the IH Structure Plan could proceed in the currently planned locations.
The applicant referred to the distance of some 800 metres between existing stockpiles and the site and how he considered any impact to be negligible. The applicant also said he was prepared to enter into an agreement acknowledging the proximity of industrial uses which would result in him being unable to complain about any nuisance from those uses. The City recommended approval of the proposed caretaker's dwelling with one reason being that the site was not in the 'core area of business of the Bunbury Port'.
The Tribunal has formed the view that, because of distance, the current impact of port activities on the site is limited. The existence of a caretaker's dwelling on the site would be unlikely to compromise current port operations and infrastructure. The Tribunal is concerned, however, that allowing a person to live on the site could compromise future development in the IH Structure Plan area. If it were essential that there be a caretaker on the site, it might follow that port development would have to accommodate that use, or the dwelling be adapted to mitigate industrial use impacts. The Tribunal has found, however, that a caretaker is not essential to the use of the site.
The Tribunal discusses below the potential for an approval of the proposed development to set an undesirable precedent, particularly in the 10 neighbouring lots north of Estuary Drive zoned Industrial in the GBRS. In respect of the issue of preserving the integrity of the planned development of the inner harbour, the Tribunal considers that if caretakers' dwellings are allowed on industrial lots as a matter of course, then the potential for the integrity of the plans for development and infrastructure to be compromised increases. This is because the presence of residents in close proximity would have to be accommodated in each development decision.
The Tribunal is of the view that the integrity of planned inner harbour development and infrastructure is likely to be compromised if the proposed development proceeds and there is a person unnecessarily living on the site.

Whether the proposed development would create unacceptable land use conflict with the neighbouring industrial properties

The land use on Lot 2 adjoining to the west includes operations that can emit noise, light and noxious gases, and can, on occasion, be 24 hours per day. Lot 101 to the east operates seven days per week and includes the loading, unloading, mixing and stockpiling of bulk mulches and landscaping supplies. These uses and other uses in the port area generate heavy truck traffic, some of which passes the site. The land uses on the lots neighbouring the site are incompatible with residential use.
It is an established planning practice to separate incompatible uses into separate zones in locations where there will be no land use conflict. This, correctly in the Tribunal's view, is recognised in the zoning table of TPS 7 where 'single house' is an 'X', or 'not permitted', use in the industrial zone. Also, 'X' uses in the industrial zone of TPS 7 are grouped dwellings and multiple dwellings and caravan parks. Consistent with this principle of separation of incompatible uses, the GBRS, at cl 12, lists residential uses under the purposes for the urban zone, regional centre zone and rural zone, but does not include residential use in the industrial zone.
The proposed development of the BPA land neighbouring the site under the IH Structure Plan would also result in land uses that would be in conflict with achieving an acceptable level of residential amenity.
A caretaker's dwelling is, however, to be considered differently from residential uses in an industrial area under the planning instruments. TPS 7 and the IH Structure Plan both list a caretaker's dwelling as an 'A' use in the industrial zone. PB 70 refers to traditional caretakers' dwellings in an industrial area as being incidental to the predominant industrial activity on the site addressing genuine operational and security issues. In this industrial area, if it was found that a caretaker's dwelling was warranted, the emissions from the lots neighbouring the site would have to be addressed.
As discussed above, the Tribunal has formed the view that there is no planning case for a caretaker's dwelling to be developed on the site. It can be argued that any caretaking, therefore, would be an activity incidental to the person living in the dwelling on the site. The resident of the caretaker's dwelling would be subject to the impacts of the neighbouring lots, and the Tribunal is satisfied that those neighbouring uses do not enable an acceptable level of residential amenity to be achieved.
The Tribunal is of the view that the conflict between reasonable residential amenity and the use of the neighbouring lots is sufficient to determine that a dwelling should not be developed on the site if it cannot be justified for caretaking purposes.
The applicant said he would endorse the title of his site to give notice that he is aware of the use made of neighbouring lots, and this would prevent him objecting to the activity on those lots. The Tribunal does not consider that such an acknowledgement by the applicant of neighbouring uses makes acceptable the inherent conflict between industrial activity and residential use. In the circumstances of this case, the Tribunal has concluded that allowing the proposed development on the site would result in a use that was in conflict with the industrial use made of neighbouring lots.

Whether special circumstances exist which justify the development of a caretaker's dwelling on the subject land

The GBRS has no use class table which provides direction on whether a particular use might be allowed or is not permitted. Both TPS 7 and the IH Structure Plan designate caretakers' dwellings as a discretionary use in the industrial zone. Guidance for the exercise of discretion can be found in PB 70, which states:
Caretaker[s'] dwelling[s] should generally be prohibited in zones designated for general industrial use unless there are special circumstances which justify their establishment in such areas.
The applicant said there were special circumstances in this instance that the respondent had ignored when considering the application. The special circumstances were that he had lived on the site in a caravan for the last 10 years and, he believed, one man living alone in a caretaker's dwelling, or a caravan if that was preferred, would have no effect on the use of neighbouring lots.
The applicant said that he had, in general, lived harmoniously with his neighbours and without complaint to authorities about neighbouring land uses. Both parties referred to an incident in February 2009 when ANSAC was conducting 24 hour testing procedures on Lot 2 in equipment adjacent to the site boundary. The applicant's interpretation of contact by the neighbour about this event resulted in the applicant spraying water, which had the effect of shutting down test procedures. Since that time, there have been no reported incidents between the applicant and that neighbour.
The City, in its list of reasons for recommending approval of the proposed caretaker's dwelling, referred to the applicant being the owner of the business and having lived on the site for 10 years.
The Tribunal believes that 'special circumstances' are a test relevant to the industrial use made of the site, not to the personal situation of the person who would be the caretaker. The circumstances of this matter are considered by the Tribunal to be that the owner would be living on the site and would incidentally be able to act as caretaker. This is not a situation where there are special circumstances arising from the industrial use made of the site and, therefore, the presence of a caretaker could be allowed where one would not normally be supported.
The Tribunal considers that the personal circumstances of the person who would be the caretaker should have no bearing on whether a caretaker's dwelling should be allowed. The Tribunal has decided that the there are no special circumstances in the industrial use of the site that could provide a basis for allowing the development of a caretaker's dwelling.

Whether the proposed caretaker's dwelling would set an undesirable precedent for further applications for a caretaker's dwelling in industrial areas

The respondent cited the Tribunal decision of Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [74] where there is reference to circumstances in which precedent is a relevant consideration in a planning assessment. These are:
(1)[t]hat the proposed development or subdivision is not in itself unobjectionable; and
(2)[t]hat there is more than a mere chance or possibility that there may be later undistinguishable applications.
The applicant said the development was unlikely to set an undesirable precedent if it is confined to an approval for one man to live in a caravan on a property of this type, in circumstances where he had lived on the property for 10 years. Reference was also made to the caretaker installed by the BPA in Leschenault House within the area of the IH Structure Plan.
Ms Gartrell expressed concern that the other industrial zoned lots on Estuary Drive might be the subject of a similar application for a caretaker's dwelling. She considered the precedent created by the proposed development would be undesirable because a concentration of residential uses in an industrial locality could result in land use and amenity conflicts, and the use of neighbouring lots for industrial purposes would be affected by the need to accommodate the concerns of residents.
Mr Lantry said people were living in Leschenault House because it was being vandalised and was under consideration for heritage listing. The purpose was to take care of the house, not to provide a caretaker for industrial uses. As part of the IH Structure Plan, the house was to be relocated to a buffer area on the margins of the Port Authority area and would serve no purpose as a caretaker's dwelling.

The Tribunal has formed the view, as outlined above, that the proposed use cannot be supported because it would be inconsistent with the purpose of the industrial zoning under the GBRS and industrial use made of neighbouring lots. There are no special circumstances that warrant setting aside the general presumption in PB 70 against permitting a caretaker's dwelling to be established in a general industrial zone. The Tribunal therefore has concluded that the proposed development is not unobjectionable because of its inconsistency with planning objectives.
The Tribunal is also of the view that there could be later undistinguishable applications. This is because there were no special circumstances to distinguish the relationship between the caretaker's dwelling and the industrial use made of the site. Other owners of industrial land in the locality might cite any approval as a reason why a caretaker's dwelling might be allowed on their site simply because it was used for industrial purposes. This potential to increase dwellings in the industrial area would be inconsistent with planning objectives of the GBRS and the IH Structure Plan. The Tribunal has concluded that an approval of the proposed development would set an undesirable precedent for further applications for caretakers' dwellings in this industrial area.

Conclusion

The evidence presented to the Tribunal was that the proposed caretaker's dwelling would be in a locality of existing and planned strategic industry and industries of a noxious or hazardous nature. These industries are located on the neighbouring industrial zoned lots under the GBRS and are proposed for neighbouring lots under the IH Structure Plan.
The planning framework in place does not prohibit caretakers' dwellings in the industrial zone of the GBRS, but PB 70 sets out a general presumption against permitting a caretaker's dwelling to be established in a general industrial zone. PB 70 refers, however, to 'a traditional caretaker's dwelling which provides limited accommodation as an incidental use to a predominant industrial activity [to] address genuine operational and site security issues'.
The Tribunal has formed the view, on the evidence, that a caretaker, and therefore a caretaker's residence, is not required for the industrial use made of the site. Any caretaking would be incidental to the applicant living on the site and is not specifically required to ensure any industrial activity on the site can continue to operate. The Tribunal has also formed the view from the evidence that there are no site security reasons peculiar to the site and not common to most industrial sites that warrant approving a caretaker's dwelling.
PB 70 also provides that caretakers' dwellings should generally be prohibited in industrial zones unless there are special circumstances which justify their establishment in such areas. The Tribunal has found that the special circumstances are to be found in the use made of the site, not in the personal circumstances of the potential caretaker. The Tribunal has concluded that the applicant living alone on the site for 10 years and, but for one incident, generally not being in conflict with the neighbouring uses, are not special circumstances required to make the use acceptable under PB 70.
The Tribunal has formed the view that the proposed use would be inconsistent with the purpose of the industrial zoning under the GBRS, inconsistent with the proposed development and infrastructure under the IH Structure Plan, and in conflict with industrial use made of neighbouring lots. The Tribunal considers that the existing and potential future environment of this locality would be incompatible with a dwelling not necessary for the purposes of a caretaker on the site.
The Tribunal has also concluded that an approval of the proposed development would set an undesirable precedent for further applications for caretakers' dwellings in this industrial area. This is because it would not be unobjectionable to allow a caretaker's dwelling where there are no special circumstances for setting aside the established presumption against such a use in an industrial area. There is also the likelihood that there might be later undistinguishable applications because of the similar industrial use made of neighbouring lots. The precedent would be undesirable because of the potential to increase dwellings in the industrial area inconsistent with the planning objectives of the GBRS and the IH Structure Plan.
The Tribunal has decided to dismiss the application and endorse the Commission's refusal of the application for approval of a caretaker's dwelling.

Orders

1.The application for review is dismissed.
2.The decision of the Western Australian Planning Commission of 24 June 2010 to refuse the application is affirmed.

I certify that this and the preceding [92] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER