Walding and City Of Cockburn

[2012] WASAT 43

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   WALDING and CITY OF COCKBURN [2012] WASAT 43

MEMBER:   MS M CONNOR (MEMBER)

HEARD:   29 SEPTEMBER 2011 AND 8 DECEMBER 2011

DELIVERED          :   7 MARCH 2012

FILE NO/S:   DR 415 of 2010

BETWEEN:   RODNEY MARK WALDING

ELIZABETH ERIN WALDING
Applicants

AND

CITY OF COCKBURN
Respondent

FILE NO/S              :DR 287 of 2010

BETWEEN              :SOUTH CENTRAL WA PTY LTD

Applicant

AND

CITY OF COCKBURN
Respondent

Catchwords:

Town planning direction ­ Stop and not recommence the development ­ Use of premises as 'Shop' ­ Shop is not permitted in Mixed Business zone ­ Whether proposed use is 'Showroom' or 'Shop' ­ Whether goods being displayed for sale fall within the definition of 'Showroom' ­ Whether those goods make up dominant proportion of goods being displayed for sale by retail ­ Whether the goods that fall within the 'Shop' definition are incidental or complementary

Legislation:

City of Cockburn Town Planning Scheme No 3, cl 4.2(e), cl 4.2.1(i), cl 6.2.6.3, cl 6.2.12.1, Sch 1, Sch 11
Planning and Development Act 2005 (WA), s 214

Result:

The matter is listed for directions hearing

Category:    B

Representation:

DR 415 of 2010

Counsel:

Applicants:     Mr P McGowan

Respondent:     Mr D McLeod

Solicitors:

Applicants:     Lewis Blyth & Hooper

Respondent:     McLeods

DR 287 of 2010

Counsel:

Applicant:     Ms B Moharich

Respondent:     Mr D McLeod

Solicitors:

Applicant:     Flint Moharich

Respondent:     McLeods

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

Humich and City of Gosnells [2008] WASAT 298

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. South Central WA Pty Ltd is the owner of Unit 27a, No 87 (Lot 403) Armadale Road, Jandakot, which is currently leased to a business operating under the name of 'Rave Discounts' and the tenants of the land are Mr and Mrs Walding. The City of Cockburn, pursuant to s 214 of the Planning and Development Act 2005 (WA), issued a Direction to both South Central WA Pty Ltd and to Mr and Mrs Walding to stop and not recommence the use of the premises as a 'Shop'.

2. These proceedings involved the review of the Directions to determine whether they should be affirmed or set aside.

3. The Tribunal found that the majority of floor space open to the public was utilised for the display and sale of goods that did not come within the definition of 'Showroom'.  However, the Tribunal could not conclude that this proportion represented an overwhelming majority of the floor space and was satisfied that there was sufficient quantities of goods offered for sale that fell within the 'Showroom' definition and that the floor space required for the display of those goods was such that it could not be regarded as insignificant and could not be considered as incidental to the 'Shop' use.

4. The Tribunal determined that there was a dual characterisation of both 'Shop' and 'Showroom' components in the use of the land.

5. As this outcome was not addressed during the hearing, the Tribunal considered that it was necessary to afford the parties the opportunity to make submissions on the effect these reasons had on the Directions and the final form of the orders.

Introduction

1. There are two applications for determination in these proceedings, both of which seek to set aside a Direction issued by the City of Cockburn (respondent or City) made pursuant to s 214 of the Planning and Development Act 2005 (WA).

2. Proceedings DR 287 of 2010 concerns a Direction issued on 24 August 2010 to South Central WA Pty Ltd (South Central) as the owner of Unit 27a, No 87 (Lot 403) Armadale Road, Jandakot (premises), whereas, proceedings DR 415 of 2010 relates to a Direction issued on 22 November 2010 to the persons responsible for carrying out the development on the subject land, being Mr Rodney Mark Walding and Mrs Elizabeth Erin Walding (Mr and Mrs Walding).

3. The Directions require South Central and Mr and Mrs Walding to 'stop and not recommence the development', which is described in the notices as 'use of premises as a shop'.

4. The 'Particulars of Contravention' are described in item 3 of the Schedules attached to the Directions.  The Schedule for the Direction issued to South Central describes the particulars as follows:

   The Development has been undertaken without having first been approved pursuant to TPS 3.  Further, as the Development involves the sale of goods by retail it is classified as a 'Shop' under TPS 3, and is a use that is not permitted in the Mixed Business zone within which the Land is situated.

5. The 'Particulars of Contravention' contained in the Schedule attached to the Direction issued to Mr and Mrs Walding is materially the same as that described in the Schedule attached to the Direction issued to South Central.  However, for completeness, I will set out the description as contained in the Schedule:

   (a)As the Development involves the sale of goods by retail, and is not a showroom, fast food outlet, bank or farm supply centre, garden centre, hardware store, liquor store or nursery it is a 'shop' as defined in Schedule 1 of TPS 3.

   (b)The Development has been carried out without prior approval of the city, contrary to clause 8.1.1 of TPS 3.

   (c)A 'shop' is a use which is not permitted in the Mixed Business zone, in which the Land is located.

6. The Tribunal made the following order on 24 June 2011 in respect to the consolidation of the proceedings relating to these matters:

   Pursuant to s 51(1) of the State Administrative Tribunal Act 2004 (WA) in relation to issue 1 referred to in the respondent's statement of issues, facts and contentions proceedings DR 287 of 2010 and DR 415 of 2010 are to remain separate proceedings but heard and determined together and evidence in one proceeding shall be evidence in the other proceeding.

7. Counsel for South Central informed the Tribunal that South Central did not intend to call any evidence or make any submissions in relation to issue 1 at the hearing of these matters.

The premises

1. The premises are located in the South Central Business Park, which is located on the northern side of Armadale Road, Jandakot approximately 200 metres east of Kwinana Freeway.  South Central Business Park is approximately 6.7743 hectares in area and comprises approximately 30 units.  The land on which the premises are located is more particularly described as Lot 403 on Diagram 59934 being the whole of the land in Certificate of Title Volume 2712 Folio 370 and has a net lettable area of 375 square metres.

Agreed background facts

1. An application was submitted on 20 July 2007 for 'Showroom/Bulky Goods Development' in relation to all the land in the South Central Business Park, including the subject land.  The respondent approved the application on 15 November 2007.  The Tribunal notes, by reference to the s 24 bundle Tab 2 (Exhibit 2), that the respondent's description of the development was for 'Showroom/Warehouse Development'.

2. No other applications have been submitted or approvals issued for the subject land in relation to use classification.

3. The premises are currently leased to a business operating under the name of 'Rave Discounts' and the tenants of the premises are Mr and Mrs Walding.

4. Officers of the respondent carried out an inspection of the premises on 9 June 2010 and a further site visit was conducted on 1 November 2010.  Photographs were taken inside the premises.  These photographs can be found at Tab 5 in the s 24 bundle (Exhibit 2).

Planning framework

1. The subject land is zoned 'Development' and is situated in Development Area 20 (DA 20) under the City of Cockburn Town Planning Scheme No 3 (TPS 3 or Scheme).  The objective of the Development zone is set out in cl 4.2.1(i) of TPS 3 as follows:

   To provide for future residential, industrial or commercial development in accordance with a comprehensive Structure Plan prepared under the Scheme.

2. Schedule 11 of TPS 3 describes the Development Areas in detail and sets out the specific purposes and requirements that apply to those areas.  DA 20 is referred to as 'Solomon Road' (Development Zone) in Sch 11 and incorporates the following provisions:

   1.Structure Plan adopted to guide subdivision, land use and development.

   2.To provide for light and service industrial and mixed use development to complement the Thomsons Lake Regional Centre.

   3.Land Uses classified on the structure plan apply in accordance with clause 6.2.6.3

3. On 17 June 2003, a Structure Plan relating to DA 20 was adopted and came into effect pursuant to cl 6.2.12.1 of TPS 3.  The subject land is designated as Mixed Business in that Structure Plan and is located within Mixed Business Precinct Three.  Under cl 6.2.6.3 of TPS 3, the Structure Plan has effect as if it were part of the Scheme.  The objective of the Mixed Business zone is provided at cl 4.2(e) of TPS 3 and states:

   To provide for a wide range of light and service industrial, wholesaling, showrooms, trade and professional services, which, by reason of their scale, character, operation or land requirements, are not generally appropriate to, or cannot conveniently or economically be accommodated within the Centre or [I]ndustry zones.

4. More particularly, the notation on the Structure Plan relating to Mixed Business ­ Precinct Three states:

   This precinct encompasses the North Lake Road frontage land within the Structure Plan, where uses requiring good exposure such as Showrooms are to [be] encouraged.

   Development shall comply with the DA 20 Design Guidelines and in particular should have regard to the 'high exposure' locations within this precinct in regard to quality of development and landscaping proposed.

5. The Zoning Table, which indicates the permissibility of uses within zones, refers to Note 3 of the Scheme to determine the permissibility of uses for the Development zone.  Note 3 states:

   Development and use of land is to be in accordance with an approved Structure Plan prepared and adopted under clause 6.2.9.

6. The two use classes referred to in these proceedings are 'Shop' and 'Showroom'.  In the Mixed Business zone, 'Shop' is designated as an 'X' use, which means the use is not permitted by the Scheme.  'Showroom', however, is designated as a 'P' use, which means that the use is permitted by the Scheme, providing the use complies with the relevant development standards and requirements of the Scheme.

7. 'Shop' and 'Showroom' are defined in Sch 1 (Land Use Definitions) of TPS 3 as follows:

   'Shop' means premises used to see goods by retail, hire goods, or provide services of a personal nature (including a hairdresser or beauty therapist) but does not include a showroom, fast food outlet, bank, farm supply centre, garden centre, hardware store, liquor store and nursery.

   'Showroom' means premises used to display, sell by wholesale or retail, or hire, automotive parts and accessories, camping equipment, electrical light fittings equestrian supplies floor coverings, furnishings, furniture, household appliances, party supplies, swimming pools or goods of a bulky nature.

Issues

1. On 24 June 2011 and 2 September 2011, the Tribunal identified the issue to be determined in respect to both matters as:

   Should the use of the Land be characterised as a 'Shop' or a 'Showroom' under the City of Cockburn Town Planning Scheme No 3 (TPS 3).

2. It follows that should the Tribunal find that the use of the premises is 'Shop' then the Directions should be affirmed.  However, if the Tribunal finds that the use of the premises is 'Showroom' then the Directions should be set aside.

3. The respondent contended that the premises is being used as a 'Shop', as the premises sells goods by retail which do not fit within the types of goods referred to in the definition of 'Showroom' and that those goods make up a dominant proportion of goods being displayed for sale by retail.  Further, the respondent submitted that the sale of those goods is not incidental or ancillary to the sale of goods that might fit within the types of goods referred to in the definition of 'Showroom'.

4. In support of its case, the respondent relied on the evidence of Mr Daniel Christopher Arndt, Director of Planning and Development at the City of Cockburn, and Mr Michael Chappell, Managing Director of Pracsys Economics.

5. Mr Arndt considered the use to be a 'Shop' within the meaning of TPS 3.  He submitted that the dominant proportion of goods being displayed for sale by retail were goods that did not fall within the categories of goods identified in the 'Showroom' definition.  He was of the view that characterisation of the use should be considered holistically and not on a good-by-good basis, as the nature of the goods change quite regularly in the premises.  Mr Chappell considered the characteristics of the types of goods being sold and the consumer patterns associated with the sale of those goods, which included assessing the frequency of transaction, portability of goods, types of consumers, storage and presentation of goods, and modes of access to the premises, and concluded that the premises is a 'Shop'.  Although this approach was novel, it has little relevance to the Tribunal's task of interpreting the definitions contained within TPS 3.

6. In contrast, the approach taken by Ms Maureen Hegarty, Associate Director of Planning at Urbis called on behalf of the applicants, was a systematic assessment of the goods sold at Rave Discounts to determine whether the items sold were consistent with the 'Showroom' definition: see Sch 1 to Exhibit 8.  This assessment entailed identifying the goods displayed for sale and categorising whether or not the goods came within one of the categories of goods listed in the definition of 'Showroom'.  Ms Hegarty, rightly, acknowledged that the categorisation of goods depended on the interpretation of terms used in the 'Showroom' definition.

7. In short, Ms Hegarty's assessment found that:

   i)no goods offered for sale fell within the categories of camping equipment, equestrian supplies, household appliances or swimming pools;

   ii)some goods were sold in bulk quantities at a discounted price and were often packaged in larger boxes;

   iii)a majority of the goods offered for sale fell within the following categories identified in the 'Showroom' definition: automotive accessories, electrical light fittings, floor coverings, furnishings, furniture, party supplies and goods of a bulky nature.  In regards to the goods identified as automotive accessories, Ms Hegarty did concede during the hearing that, to be compliant, the definition could be interpreted as requiring the sale of both automotive parts and accessories; and

   iv)a number of goods displayed could not be categorised as falling within any of the categories listed in the definition of 'Showroom'.

8. Ms Hegarty, based on her assessment, concluded that the majority of the floor space open to the public was utilised for the sale of goods that are consistent with the 'Showroom' definition.  As to the other goods, Ms Hegarty considered the majority to be incidental or complementary to the compliant goods or consistent with the definition of 'Bulky goods retail or showroom' as contained in State Planning Policy 4.2 (SPP 4.2).

9. Ms Hegarty also referred to the change in nature of retailing with the emergence of large format retailing; a trend that has been recognised in SPP 2.4 through a more contemporary interpretation of showroom and bulky goods retailing.  She considered Rave Discounts to be representative of this form of retailing.  She submitted that local governments have been slow to reflect the emerging trend in their statutory planning regimes and she suggested that either a liberal interpretation of the definition should be applied or that large format retail could be considered as a 'Use Not Listed'.

What is the proper land use classification?

1. The definition of 'Showroom' in TPS 3 invites attention to the designation or character of goods sold and displayed from the premises and, although the definition identifies an array of categories of goods that may be displayed or sold from the premises, it does not require that the premises must only be involved in one of those categories.  Further, there is nothing in the definition that identifies the size of premises as a factor.

2. In essence, the following can be discerned from the definition: it specifies certain categories of goods and not goods in general, and it would appear that a common element of each of the categories is the need for more floor space than that required for a 'Shop'.  On first reading, the exception would be party supplies, but this category would also include the hire of chairs, tables, cooking wares and the like for party functions.  The small party items would generally be incidental.

3. In contrast, the definition of 'Shop' is a broad definition that identifies a series of exclusions.

4. The central issue as regards these definitions is to be resolved by the application of the principle articulated in Humich and City of Gosnells [2008] WASAT 298 (Humich), at [38], that '[u]ltimately, the classification of a use for the purposes of land use planning involves a question of fact and degree'. Humich is a case about an application for planning approval for a change of use of premises to 'pet shop and ancillary products'.  The City of Gosnells refused to grant approval on the basis that the proposed use involved the sale of goods of a bulky nature and therefore classified as 'Showroom', rather than 'Shop', under the local planning scheme.  The Tribunal determined that the proposed use was not classified as 'Showroom', because the goods of a bulky nature that were proposed to be displayed and sold from the premises could not be classified as an independent dominant use of the site.  Rather, the Tribunal found that the sale of goods of a bulky nature was incidental or ancillary to the dominant proposed use, namely, a pet shop selling pets, pet food and accessories.

5. According to the evidence of Ms Hegarty, in this case, the majority of floor space open to the public was utilised for the sale of goods which are consistent with the 'Showroom' definition and that the other goods offered for sale are incidental or complementary to the 'Showroom' use.  The Tribunal, based on the photographic evidence provided by the parties and the observations gained from the view, does not agree with this conclusion.  Even if the Tribunal accepts the categorisation of goods as set out in 'Schedule 1 ­ Classification of Items Sold at the Subject Site' of Ms Hegarty's witness statement, the volume of goods and the area of floor space utilised for the display and sale of goods that do not fall within the definition of 'Showroom' cannot be said to be subservient to those goods that are identified as falling within the 'Showroom' definition.  It is more likely that the preponderance of goods offered for sale is not consistent with the 'Showroom' definition and that a greater proportion of the premises is used in the display of these goods.  However, the Tribunal cannot conclude that this proportion represents an overwhelming majority of the floor space.

6. The Tribunal is satisfied that there are sufficient quantities of goods offered for sale that fall within the 'Showroom' definition and that the floor space required for the display of those goods is such that it could not be regarded as insignificant and could not be considered as incidental to the 'Shop' use.  In contrast to the circumstances in Humich, the extent of the secondary use, namely, 'Showroom', suggests that a separate and independent use is established in this instance.

7. It is the Tribunal's finding that there is a dual characterisation of both 'Shop' and 'Showroom' components in the use of the subject land.

8. Having found that the proper classification of the subject land is both 'Shop' and 'Showroom', it is unnecessary to consider the applicants' alternative proposition that the use of the subject land might be characterised as a 'Use Not Listed'.

1. The possibility that the Tribunal might find that the use of the land was properly classified as both a 'Shop' and a 'Showroom' was not addressed during the hearing and therefore the parties should be given the opportunity to make submissions on the effect these reasons have on the Directions and on the final form of the orders.  Given that the Tribunal has determined that the majority of floor space open to the public is utilised for the sale of goods which are not consistent with the 'Showroom' definition, it may be that the parties see some value in a further mediation hearing as a way of resolving the impasse between them on this issue.

Orders

1. For the above reasons, the Tribunal makes the following orders in respect to both DR 415 of 2010 and DR 287 of 2010:

   The matter is listed for directions hearing at 2.15 pm on Friday, 23 March 2012 in order to make directions as to the progression of this matter, either by way of listing the matter for mediation or programming a timeframe to allow for submissions from the parties on the effect these reasons have on the Directions and the final form of the orders.

I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS M CONNOR, MEMBER