Tedig Pty Ltd and Ors and City of Wanneroo

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: TEDIG PTY LTD & ORS and CITY OF WANNEROO [2007] WASAT 197

MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)

HEARD: 18 APRIL 2007

DELIVERED : Edited reasons delivered extemporaneously on 18 APRIL 2007

FILE NO/S: DR 125 of 2007

BETWEEN: TEDIG PTY LTD
JAYANBAR PTY LTD
HORSESHOE (WA) PTY LTD TRADING AS GARDEN GLOW FRUIT AND VEGETABLE WHOLESALERS
Applicants
AND
CITY OF WANNEROO
Respondent

Catchwords:

Practice and procedure - Stay of direction - Direction to lease unlawful use of land - No issue as to unlawfulness of use - Whether estoppel might be against enforcement of direction - No reasonably arguable grounds to set aside the direction

Legislation:

City of Wanneroo District Planning Scheme No 2
Planning and Development Act 2005 (WA), s 214
State Administrative Tribunal Act 2004 (WA), s 25, s 25(2), s 25(4)

Result:

Application for stay refused

Category: B

Representation:

Counsel:

Applicants: Mr P McQueen
Respondent: Mr C Slarke

Solicitors:

Applicants: Lavan Legal
Respondent: McLeods

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

Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1

REASONS FOR DECISION OF THE TRIBUNAL:

This is an application for a stay of the effect of a direction issued under s 214 of the Planning and Development Act 2005 (WA). The background facts are that on 16 February 2004 the applicant obtained an approval for use of land which is known as Lot 3 Wanneroo Road in Wanneroo for a rural industry. The form of approval identified in condition 1:
"The proposed building must only be used for purposes which are related to the operation of a rural use."
Under the City of Wanneroo's District Planning Scheme Number 2 "industry – rural" -
"means an industry handling, treating, processing or packing primary products grown, reared or produced in the locality in a workshop used for the servicing of plant or equipment used for rural purposes in the locality."
Condition 2 of the approval provided that:
"No retail sales are permitted from the building or site until such time as the zoning permits and the appropriate approval is issued by the City."
The applicants previously carried on a business in Kingsley. In November 2004, pursuant to the approval that had been obtained, they constructed a building on Lot 3 and commenced their business of processing and distribution of fruit and vegetables. The affidavit of Mr Crawford describes the operation of the business and makes it clear that the business has two components.
The first is off-site sales, which are purely of a wholesale nature, where fruit and vegetables are trucked off site to various places, including a number of regional centres and within the metropolitan area. The other component of the business is an on-site sales business, which again, according to Mr Crawford, comprises substantially sales to wholesale customers who come to the premises to choose their fruit and vegetables - businesses such as roadhouses, restaurants, cafes, bakeries, vegetable shops and high schools.
Mr Crawford identifies that there are a number of reasons why it is difficult to distinguish those types of wholesale customers from other customers who come to the premises. At par 25 of his affidavit, he says that:
"The difficulties in practical terms of making that distinction arise because
(1)the incidental component of Garden Glow's trade arises out of the wholesale operation both historically and currently;
(2)the service and product available and provided to different types of customer is exactly the same;
(3)frequently the same customer is engaging in both wholesale and incidental trade simultaneously."
He gives examples of that in his affidavit; for instance, a business owner who buys stock for his business may also buy stock for his family use. Apparently, there is no distinction in the pricing between wholesale customers and retail customers, being the ultimate consumers of the product, save for some price differentiation in relation to the quantity of product purchased.
In March 2006, a letter was sent by the City of Wanneroo to the applicants which pointed out conditions 1 and 2 of the development approval and identified that, on the recent visit, it was clear that retail sales were taking place. The letter required the immediate cessation of all retail sales from the subject lot and the removal of display shelves which facilitated the retail sales.
It is apparent that that letter was not followed up until the recent direction, the subject of these proceedings. There is no clear explanation for why that is, but an affidavit from Mr Peter Cann, who is a planner who has been involved in the project for some time, discloses that, at about the same time, there were moves afoot within the City of Wanneroo and within the State Planning Commission to have a structure plan adopted, that being structure plan 47, which relates to the subject lot.
If structure plan 47 were to be adopted, then I am told, and I think it is common ground, the land would be within a restricted use precinct. That would permit the wholesale distribution and retail sale of primary products, including fruit and vegetables, so that the use currently being carried on on the land would be permissible under the scheme, the terms of which I understand would make the structure plan, in effect, a provision of the scheme.
That structure plan was accepted, subject to some modifications by the Planning Commission, some time around early March 2006, and on 26 April 2006, the City accepted the Western Australian Planning Commission's modifications and resubmitted the structure plan to the Commission. It appears that, since that time, nothing has been done to finally adopt the structure plan.
Although there is no evidence of any of this, Mr McQueen, Counsel for the applicants, has indicated from the parties' table that one of his clients, Mr Tedesco, who is currently in the United States, may be in a position to identify communications which occurred between the City of Wanneroo and the applicants, or some of the applicants, concerning the question of whether or not the scheme and condition 2 of the approval would be enforced. The suggestion was made that the applicants have, or may have, relied upon those communications with the City of Wanneroo in continuing to operate their business.
In any event, on 30 March 2007, a direction under s 214 of the Planning and Development Act 2005 (WA) was issued. In its terms, that direction requires the applicants to immediately stop the sale of goods by retail from the land. It is that notice which forms the subject of the application to the Tribunal for review, which was made on 11 April 2007. At the same time, the application for the stay, which is before me this morning, was also filed.
The question of whether or not a stay should be granted is governed by s 25 of the State Administrative Tribunal Act 2004 (WA). Subsection (2) of that section provides that:
"The Tribunal may, on application of a party or on its own initiative, make an order staying the operation of a decision that is the subject of a proceeding for review."
Subsection (4) provides that:
"The Tribunal may make an order under subsection (2) only if it considers that it is desirable to do so after taking into account:
(a)the interests of any persons whose interests may be affected by the order;
(b)any submission made by or on behalf of the decision‑maker; and
(c)the public interest."
It is clear that, whilst the Tribunal is directed to have regard to those three matters identified in s 25(4), there is also a primary and important issue to be addressed; that is, whether or not there is a serious question to be tried, to use the expression used in the context of interlocutory injunctions. That is a real issue confronting the applicants in this case.
The applicants do not contend that the use of the land for retail sales of fruit and vegetables is a lawful use under the scheme, and there is no basis put forward for suggesting that the scheme would permit it. The proposition put by counsel for the City of Wanneroo - that the existing use, so far as it consists of retail sales, constitutes a shop use, which is a prohibited use under the zoning table - is not challenged.
The merits of the application are put on two bases by the applicants. One is that given the history of the matter and in particular the circumstances of the failure to follow up and enforce the notice given in April 2006, there is at least scope for an argument that there is an estoppel that may be available against the City of Wanneroo, to the effect that it is estopped from now enforcing the direction that has been issued and is the subject of these proceedings.
The generally accepted position is that estoppel does not lie against public authorities in relation to the enforcement of statutory duties and discretions.
Mr McQueen has taken me to a passage from the decision of the Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 18. It seems to me that while that passage in the judgment of the Chief Justice leaves open the possibility that estoppels may lie against public authorities, the words carefully preserve the existing position that an estoppel will not lie, if the effect of it is to restrain the public authority from properly enforcing laws which govern it and its operation.
Here, where there is an accepted breach of the planning legislation, I do not accept that it is reasonably arguable that an estoppel can lie to restrain the local authority from enforcing its town planning scheme and ensuring adherence to the conditions of the development approval. To suggest that an estoppel can be used to preserve an ongoing unlawful use seems to me to be a proposition which is not supported by the passage to which I was referred, and it is contrary to a well-accepted principle.
There was a second argument raised concerning the terms of condition 2; namely, that it contemplated that the retail sales would only be proscribed until such time as the zoning permitted it and the appropriate approval was issued by the City of Wanneroo. Given the circumstances, which seem to be common ground, that effectively the zoning of this lot may change in the future, it was suggested that there is a seriously-entertained planning proposal to that effect, and that that should inform the exercise of the discretion as to whether or not the notice should be maintained.
In my view, that is to take the principles surrounding the relevance and significance of seriously-entertained planning proposals to a new level, which simply is not supported by authority. The condition, in any event, contemplates not only that there is a change in zoning, but that there is an appropriate approval issued by the City of Wanneroo. I am told from the parties' table that there are concerns by other traders, or at least another trader in the vicinity, who consider the use should not be permitted, certainly while it is contrary to the zoning. It seems to me that there is nothing in the principles relating to seriously-entertained planning proposals which would inform the exercise of the discretion in this case.
In the circumstances, the public interest, to which I am required to have regard, lies squarely with the enforcement of the planning law, to regulate what is currently an unlawful use. There is likely to be detriment suffered by the applicants. They have a number of people employed, some of whom are employed in relation to the on-site sales aspect of the business. Although it is not terribly clear, possibly some of those would not be necessary if the on-site sales were confined only to the true wholesale purchasers. It is possible that a significant number of the people working in the on-site sales would not have much to do if there were only wholesale purchasers coming to the premises, but on the limited information available, I cannot determine the full effect of the direction on employees of the business.
It does seem to me though that if, as the affidavit of Mr Crawford suggests, the preponderance of on-site sales is to wholesale customers, then that aspect of the business can, with some appropriate steps being taken, be regulated and it would not be required to cease under the terms of the direction as it stands. Unlike the March 2006 letter, the direction the subject of these proceedings does not require the removal of the display shelving and does not seem at all to proscribe on-site sales to wholesale purchasers. The challenge for the applicants is simply to identify, or have purchasers identify themselves as, wholesale purchasers, and that aspect of the business can continue unfettered.
In any event, regardless of the hardship, the reality is that I do not think that I have any real option in relation to this notice, where there is no arguable basis for saying that the use is lawful. So for those reasons, I propose to dismiss the application for a stay.
This is an interlocutory finding, not a final determination of the merits of the case. It remains open for the applicants to re-agitate, at any final hearing, the arguments made today and to support those arguments with whatever further evidence they wish to adduce.

I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT

[2007] WASAT 197

18 April 2007 (Edited reasons delivered extemporaneously)