WARR and TOWN OF CAMBRIDGE
[2020] WASAT 126
•20 OCTOBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WARR and TOWN OF CAMBRIDGE [2020] WASAT 126
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 14 AND 15 JULY 2020
DELIVERED : 20 OCTOBER 2020
FILE NO/S: DR 325 of 2018
DR 61 of 2020
BETWEEN: NIGEL WARR
First Applicant
DONNA WARR
Second Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Development - Remitted matter - Interpretation of planning schemes - Existing use rights - Abandonment of use - Local planning policy - Flexible application of policy - Suitability of proposed land uses - Orderly and proper planning - Exercise of planning discretion
Legislation:
Environmental Planning and Assessment Act 1979 (NSW), s 109, s 109B
Interpretation Act 1984 (WA), s 5, s 18
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 2, cl 3(3), cl 60, cl 64, cl 67(b), cl 67(g), cl 67(w), Pt 9
Planning and Development Act 2005 (WA), s 68, s 68(1), s 73(2A), s 87(4), s 241(1)
State Administrative Tribunal Act 2004 (WA), s 27, s 27(2), s 29(1), s 51(1), s 91(2), s 105(9)
Town of Cambridge Local Planning Scheme No 1, cl 8, cl 16, cl 18(2), cl 22, cl 22(1)(a), cl 22(1)(b), cl 22(2), Sch A
Result:
Both applications for review are dismissed
Summary of Tribunal's decision:
Nigel and Donna Warr (applicants) sought review of two separate decisions made by the Town of Cambridge (Town) in relation to their land at No 59 (Lot 423) Marlow Street, Wembley (Land). The Land was zoned Local Centre in the Town of Cambridge Local Planning Scheme No 1 (LPS 1).
The objectives of the Local Centre zone in LPS 1 included inter alia 'providing services for the immediate neighborhoods that are easily accessible', focusing on the 'main daily household shopping and community needs' and 'encouraging high quality pedestrian-friendly, street-orientated development'.
The Town has also prepared the Town of Cambridge Local Planning Policy 2.4 (LPP 2.4) which relates to the 'Wembley Precinct'. LPP 2.4 includes a range of additional planning criteria for uses in the Local Centre zone.
Proceeding DR 325 of 2018 relates to a co-located car wash and a mechanical workshop. This matter has been remitted back to the Tribunal following the decision of Allanson J in Warr v Town of Cambridge [2019] WASC 362.
Proceedings DR 61 of 2020 relates to a standalone mechanical workshop.
Both a mechanical workshop (a 'service station') and a car wash ('motor vehicle wash') were discretionary uses. However, the applicants claimed that the Land enjoyed existing use rights for a 'service station' arising from a use that commenced prior to the introduction of planning controls and which had ceased in 2000.
Both applications were refused by the Town. The proceedings before the Tribunal were primarily a contest around the suitability of the proposed uses in the context of the Local Centre zone.
The Tribunal did not consider that there were existing use rights for a service station. Any existing use rights had been abandoned as the Land has been vacant for nearly 20 years.
In terms of the exercise of planning discretion, while both applications met some of the objectives of the Local Centre zone, they did not meet the majority of these objectives and were considered to be at the lower end of the spectrum of appropriate uses for the zone in the relevant context. However, the Tribunal declined to give LPP 2.4 significant weight in the exercise of discretion as it was concerned there was a planning disconnect between the requirements of LPP 2.4 and the provisions of LPS 1.
Even taking account of the fact that: (i) neither a car wash nor a mechanical workshop would cause undue amenity impacts, (ii) were on the Land which fronted a busy regional road (Grantham Street); (iii) were not completely at odds with the range of existing uses within the local centre; (iv) would deliver some form of development to the Land which had been vacant for nearly 20 years, the Tribunal found that the correct and preferable decision was to dismiss both applications. This was primarily due to the fact that the proposed developments were inconsistent with the zoning objectives for the Local Centre zone.
Category: B
Representation:
Counsel:
| First Applicant | : | Mr J Skinner |
| Second Applicant | : | Mr J Skinner |
| Respondent | : | CA Slarke |
Solicitors:
| First Applicant | : | Thomson Geer - Perth |
| Second Applicant | : | Thomson Geer - Perth |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26
Auburn Council v Nehme [1999] NSWCA 383; (1999) 106 LGERA 19
Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38
Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115
Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79; (2010) 72 SR (WA) 324
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Corp and Town of Cambridge [2019] WASAT 65; (2019) 97 SR (WA) 252
Dao Ji Association and City of Gosnells [2020] WASAT 10
D'Orazio Enteprises Pty Ltd and City of Stirling [2016] WASAT 99
Dubler Group Pty Ltd v Minister for Infrastructure and Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) 74 LGRA 68
Hartley v Minister for Housing and Local Government [1970] 1 QB 413
Hebe Pty Ltd v Metropolitan Region Planning Authority (1981) 2 APA 428
Hudak v Waverley Municpial Council (1990) 18 NSWLR 709; (1990) 70 LGRA 130
IpilatesPerth Pty Ltd and City of Joondalup [2020] WASAT 52; (2020) 100 SR (WA) 72
Jensen v Nationwide News Pty Limited [No 12] [2019] WASC 250
Johnson v The Minister for Planning [2018] WASC 334
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Martin and City of Kalamunda [2019] WASAT 127
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138; (1973) 28 LGRA 410
Nairn v Metro-Central Joint Development Assessment Panel [2018] WASCA 18
Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312
Park Street Properties Pty Ltd v South Melbourne City Council [1990] VR 545; (1989) 69 LGRA 231
Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Shire of Mundaring; Ex parte Solomon & ORS [2007] WASCA 132
Reid and Western Australian Planning Commission [2017] WASAT 107; (2017) 92 SR (WA) 388
Rochester and Shire of Northam [2019] WASAT 107
Sanders v City of South Perth [2019] WASC 226
Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; (2018) 232 LGERA 395
Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2005] QPEC 70; [2006] QPELR 85
Shannahan Crash Repairs Pty Ltd v Port Adelaide City Corporation (1978) 20 SASR 491; 41 LGRA 50
Shire of Perth v O'Keefe [1964] HCA 37; 110 CLR 529; 10 LGRA 147
The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227
Turnbull Group v North Sydney Council [1998] NSWLEC 253; (1998) 101 LGERA 354
Universal Enterprises Pty Ltd and Town of Victoria Park [2013] WASAT 62
Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76
van der Feltz v City of Stirling [2009] WASC 142; (2009) 137 LGERA 236
Warr and Town of Cambridge [2019] WASAT 27; (2019) 97 SR (WA) 27
Warr v Town of Cambridge [2019] WASC 362
Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123
Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150
Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These reasons for decision relate to two separate but related applications of review for land known as No 59 (Lot 423) Marlow Street, Wembley (Land).
Proceeding DR 325 of 2018 is a matter that has been remitted to the Tribunal pursuant to s 105(9) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) by reason of orders made by Allanson J in Warr v Town of Cambridge [2019] WASC 362 (Warr Appeal).
In Warr Appeal, Allanson J granted leave and allowed an appeal against the Tribunal's decision in Warr and Town of Cambridge [2019] WASAT 27; (2019) 97 SR (WA) 27 (Warr SAT Reasons).
In these reasons, DR 325 of 2018 will be referred to as the Original Application.
Proceeding DR 61 of 2020 is a more recent application. In these reasons, DR 61 of 2020 will be referred to as the New Application.
By orders made on 21 April 2020, and pursuant to s 51(1) of the SAT Act, the Original Application and the New Application remain as separate proceedings but are to be heard and determined together.
Before I turn to explain these applications in detail, it is appropriate that I set out the relevant planning context.
Site and context
The Land falls within what is known as the 'Wembley Precinct' for the purposes of the Town of Cambridge Local Planning Policy 2.4 (LPP 2.4). LPP 2.4 forms part of the Town of Cambridge's (Town or respondent) planning framework which also includes the Town of Cambridge Local Planning Scheme No 1 (LPS 1).
The Land is located on the south-west corner of the intersection of Marlow Street and Grantham Street. The Land is currently vacant as the former service station was demolished in 2002. It will be necessary to set out in some detail the planning history of the Land later in these reasons.
The planning context of the Land was set out in the Warr SAT Reasons at [13]-[16]. A summary of that context is as follows. The land immediately west of the Land is occupied by the Wembley Jellybeans Childcare Centre. Directly south of the Land is a (relatively recently constructed) two storey single dwelling. The property diagonally south-west of the Land contains a single storey residence.
The remaining three corners of the Marlow Street and Grantham Street intersection contain existing commercial uses which include a veterinary clinic, picture framers, a hairdresser, offices, a beauty salon, plumbing and gas services, and pool equipment supply and services. With the exception of the building on the north-west corner which contains a pool spa centre and offices, the remaining commercial buildings are all single storey.
The four corners that comprise the intersection of the Marlow Street and Grantham Street are the 'local centre' that is the focus of these proceedings. At each corner, the land is zoned 'Local Centre' in LPS 1.
The broader locality generally comprises a mix of single and two storey residential premises.
The Original Application
To describe the Original Application, I include the following extract from the Warr SAT Reasons:
17The proposed development comprises two businesses. The first is an Auto Masters mechanical workshop located on the eastern section of the subject site comprising a single storey building built up to the Grantham Street boundary and occupied by two work bays, waiting bays and an office and waiting area.
18This building is approximately 6.5 metres high and has a street canopy on to both Marlow Street and Grantham Streets. Signage is proposed both centrally on the northern elevation facing Grantham Street and on the eastern elevation facing Marlow Street.
19The second business comprises a self-service car wash located centrally on the western section of the subject site which provides three car wash bays. This building is somewhat lower than the Auto Masters workshop and setback approximately 6.85 metres from the Grantham Street boundary. Signage is proposed on the northern face of this structure facing Grantham Street.
20While the development is put forward as an integrated proposal, the intention is that these two businesses are to operate independently.
21The southern portion of the subject site is taken up with car parking and a vacuum bay at the western end. The car parking and vacuum bay will be roofed with acoustic insulation to the underside. In addition it is proposed that a masonry wall will be constructed on both the western and southern boundaries of the site.
22Access to the subject site will be provided both from Marlow Street, for both access and egress, and an exit only crossover into Grantham Street at the western end of the site
Ultimately, in the Warr SAT Reasons the Tribunal found that the self-service car wash (car wash) was consistent with the applicable planning framework and warranted approval. However, the mechanical workshop (being an 'Industry-Light' use: Warr SAT Reasons at [61]) was considered not to be consistent with the applicable framework (namely then Local Planning Policy 6.4 Precinct P4: Wembley) on the basis that the use did not service 'the day-to-day needs of the local residents'.
Because the two land uses were presented as a consolidated development with shared access and egress it was not possible, as a matter of planning law, to approve only one use as the Tribunal found to do so would be to approve a development substantially different from that which was applied for: Warr SAT Reasons at [107].
In the Warr Appeal, Allanson J determined that the Warr SAT Reasons disclosed an error of law on the basis that the statement of intent for LPP 2.4 was read and applied by the Tribunal as 'imposing a requirement to be met' as opposed to being an instrument which guided the exercise of discretion.
At the commencement of the hearing, both parties agreed that in dealing with the remitted Original Application, I am required to, in effect, exercise the discretion afresh pursuant to s 27 of the SAT Act. However, the City does not request that the Tribunal revisit any of its findings in relation to noise and traffic in the Original Application: ts 15, 14 July 2020.
Importantly, both parties agreed, and indeed it must be the case having regard to s 27(2) of the SAT Act, that I am required to exercise that discretion in the context of the applicable planning framework at the time of the remitted hearing: Reid and Western Australian Planning Commission [2017] WASAT 107; (2017) 92 SR (WA) 388 at [25]-[47].
The New Application
The New Application proposes only a mechanical workshop on the Land. The premises for the proposed mechanical workshop are larger than in the Original Application. The mechanical workshop is a standalone use which comprises 430m2 gross floor area (comprising three work bays, an office and customer waiting area) together with car parking (and an associated car parking structure). The mechanical workshop fronts Grantham Street with the car parking behind. No selfservice car wash is proposed.
On 12 February 2020 the applicants submitted some design revisions taking account of comments received by the Town of Cambridge Design Review Panel. The New Application was advertised pursuant to cl 64 of Sch 2 to the Planning and Development (Local Planning Scheme) Regulations 2015 (WA). The Sch 2 provisions will be referred to in these reasons as 'the deemed provisions'.
The Development Committee of the Town refused the New Application on 17 March 2020. The reasons for refusal were:
1.The development is inconsistent with bullet point objectives 1, 2, 3 and 5 for the Local Centre zone of the Town's Local Planning Scheme No. 1;
2.The Mechanical Workshop use is not a suitable use of the land, having regard to the zone objectives and the Town's Local Planning Policy 2.4 Precinct P4: Wembley as:
(a)it is not a small scale, pedestrian oriented land use, and is therefore not encourage;
(b)it does not provide services primarily for the immediate neighbourhoods, and provides services for a substantially wider catchment, and is therefore discouraged;
(c)it is a car based use which relies substantially on private vehicle trips, and is therefore discouraged; and
(d)it does not provide for main daily or weekly household shopping or community needs and is therefore discouraged; and
3.Having due regard to the matters listed in clause 67 of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015, the development is considered to be inconsistent with the aims and provisions of the Town of Cambridge Local Planning Scheme No. 1 (refer subclause (a)), the requirements of orderly and proper planning (refersubclause (b)), and the desired future character of the area as expressed in Local Planning Policy 2.4 Precinct P4: Wembley (refer subclause (g)).
Applicable planning framework
Planning schemes
The Land is zoned 'Urban' in the Metropolitan Region Scheme and 'Local Centre' under LPS 1. LPS 1 includes the deemed provisions: s 257B(2) Planning and Development Act 2005 (WA) (PD Act) together with reg 8(1)(c) and reg 10(4) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
Schedule A to LPS 1 includes supplemental provisions made pursuant s 73(2A) of the PD Act. Item 3A(1) of Sch A to LPS 1 divides the 'Scheme Area' into the 'Precincts set out in the Precinct Local Planning Policies'. The Land is within Precinct 'P4: Wembley'. LPP 2.4 is the local planning policy for the Wembley Precinct.
The purposes of LPS 1 are to inter alia: (a) 'set out the [Town's] planning aims and intentions' as well as to (d) 'control and guide development': cl 8 LPS 1.
Clause 9 sets out the aims of LPS 1. LPS 1's aims include:
(a)to control and guide development and growth in a responsible manner and which can initiate, accommodate and respond to change;
…
(c)to cater for the diversity of demands, interests by facilitating and encouraging the provision of a wide range of choices in housing, business, employment, education, leisure, transport and access opportunities;
…
(e)to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which: -
(i)recognises the individual character and needs of localities within the Scheme Area; and
(ii)can readily respond to change;
…
(g)to promote the development of a sense of local community and recognise the right of the community to participate in the evolution of localities[.]
Since the Original Application was determined, the planning framework applying to the Land has been amended in two key respects. The first is Amendment 38 to LPS 1. The second is LPP 2.4.
Amendment 38 to LPS 1 was published in the Government Gazette on 30 August 2019 and therefore commenced pursuant to s87(4) of the PD Act. Amendment 38 had the effect of inter alia introducing zoning objectives. Pursuant to cl 16 of LPS 1, the objectives for the 'Local Centre' zone are:
•Provide services for the immediate neighbourhoods that, are easily accessible, which do not adversely impact on adjoining residential areas.
•Provide for neighbourhood and local centres to focus on the main daily household shopping and community needs.
•Encourage high quality, pedestrian-friendly, street-orientated development.
•Provide a focus for medium density housing.
•Ensure the design and landscaping of development provides a high standard of safety, convenience and amenity and contributes towards a sense of place and community.
These zoning objectives have effect 'as if enacted by the [PD] Act': s 68, s 87(4) PD Act; see also Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; (2018) 232 LGERA 395 at [125] para 9 (Buss P, Murphy JA and Allanson J).
Amendment 38 did not affect the permissibility of the land uses 'Motor Vehicle Wash' or 'Industry-Light' which remain 'A' and 'D' uses (respectively) within the Local Centre zone. Pursuant to cl 18(2) of LPS 1, 'A' and 'D' uses are discretionary uses (although in the case of 'A' uses, advertising of the proposal is required pursuant to cl 64 of the deemed provisions).
Amendment 38 also amended the definition of 'service station' in LPS 1 to read as follows:
service station means premises other than premises used for a transport depot, panel beating, spray painting, major repairs or wrecking, that are used for
(a)the retail sale of petroleum products, motor vehicle accessories and goods of an incidental or convenience nature; and/or
(b)the carrying out of greasing tyre repairs and minor mechanical repairs to motor vehicles.
A 'service station' is an 'A' use in the Local Centre zone.
State Panning Policy 4.2: Activity Centres for Perth and Peel
Clause 5.1.2(1) of State Planning Policy 4.2: Activity Centres for Perth and Peel (SPP 4.2) includes provisions relating to neighbourhood and local centres. It provides that:
Neighbourhood centres are important local community focal points that help to provide for the main daily to weekly household shopping and community needs. They are also a focus for mediumdensity housing. There are also many smaller local centres such as delicatessens and convenience stores that provide for the day-to-day needs of local communities.
Table 3 of SPP 4.2 also provides that:
Neighbourhood centres provide for daily and weekly household shopping needs, community facilities and a small range of other convenience services.
SPP 4.2 is not otherwise directly relevant to these proceedings. The respondent has referred to the principles set out in SPP 4.2 as a basis to explain some of the objectives of the Local Centre zone inLPS1.
Local planning policies
LPP 2.4
The second material change to the applicable policy framework arises from amendments to LPP 2.4 which were made in February2020. It was necessary to amend LPP 2.4 in the context of Amendment 38 to ensure that LPP 2.4 is consistent with the objectives of the Local Centre zone. For ease of reference, the relevant provisions (relating to the Local Centre zone) are set out below:
2.LOCAL CENTRE ZONE
2.1.Statement of Intent
Consistent with State Planning Policy 4.2, the Local Centre zone is intended to provide a local community focal point; provide for the day to day needs of local communities; and play an important role in providing walkable access to services and facilities for local communities.
Development should be consistent with the objectives of the Local Centre zone set out in the Scheme and with the additional provisions relating to land use and development standards set out in this policy.
2.2.Land Use
The following provisions:
1.are to be considered when determining whether a proposed development (land use) is consistent with the respective objectives of the Local Centre zone; and
2.indicate the type of uses which are encouraged or discouraged, having regard to the zone objectives.
Objective: Provide services for the immediate neighbourhoods that, are easily accessible, which do not adversely impact on adjoining residential areas.
(a)New development should not have any adverse impact on the amenity of adjoining residential areas. Consideration will be given to the proposed hours of operation, noise, traffic and parking demand, and the general impact of the use on the amenity of adjoining land;
(b)Small scale, pedestrian oriented land uses are likely to be consistent with this objective and are encouraged;
(c)Uses which do not provide services primarily for the immediate neighbourhoods, or which provide services for a substantially wider catchment, are not considered to be consistent with this objective and are generally discouraged;
(d)Uses which are 'car based' or which rely substantially on private vehicle trips are unlikely to be consistent with this objective, and are generally discouraged; and
(e)In this objective, the area within a 200m radius, and up to approximately a 500m radius of the zone will generally be considered the 'immediate neighbourhoods'.
Objective: Provide for neighbourhood and local centres to focus on the main daily household shopping and community needs.
(a)Land uses which provide for main daily household shopping or community needs are consistent with this objective and should generally be encouraged subject to considering the other zone objectives and policy provisions;
(b)Land uses which provide for weekly shopping and community needs may still be consistent with this objective;
(c)Land uses which do not provide for main daily or weekly household shopping or community needs will generally be discouraged;
(d)Smaller scale offices will not be considered inconsistent with this objective, unless the proposed use prevents the centre from focusing on main daily household shopping and community needs.
Objective: Encourage high quality, pedestrian-friendly, street-orientated development.
(a)Proposed developments should contribute to a high level of pedestrian amenity, to generate interest and activity with the adjacent public realm.
Objective: Provide a focus for medium density housing.
(a)The location of the Local Centre zone, together with the achievement of the other objectives of the zone, allow the zone to provide a focus for medium density housing.
Objective: Ensure the design and landscaping of development provides a high standard of safety, convenience and amenity and contributes towards a sense of place and community.
(a)Any proposed development should be designed and landscaped to provide for a high standard of safety, convenience and amenity for the Local Centre zone and the surrounding area.
Local Planning Policy 3.10: Design of non-residential development
Local Planning Policy 3.10: Design of non-residential development (LPP 3.10) aims to ensure that the development of nonresidential land is designed so as to achieve a high standard of safety and convenience for residents and visitors.
Principles of interpretation
LPS 1 has effect 'as if enacted by the' PD Act [s 68(1)] and is 'subsidiary legislation' for the purposes of s 5 the Interpretation Act 1984 (WA) (Interpretation Act). However, even though LPS 1 has statutory effect and the orthodox canons of construction apply, it is relevant, as matter of legislative context, that planning schemes are not usually drafted by Parliamentary Counsel and are often expressed in terms which lack the precision of an Act of Parliament: Sanders v City of South Perth [2019] WASC 226 at [98]-[99] (Quinlan CJ).
It is also settled law that planning schemes are to be construed broadly and sensibly, not pedantically: Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38 at [84] (Buss P, Murphy and Mitchell JJA) (Australian Unity); Re Shire of Mundaring; Ex parte Solomon & ORS [2007] WASCA 132 at [25] (McLure JA, Steytler P and Pullin JA agreeing) and Johnson v The Minister for Planning [2018] WASC 334 at [125] (Smith AJ).
Planning schemes should be 'applied in a practical and common sense, and not an overly technical way, in a fashion that will best achieve their evident purpose': Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 at [21].
By reason of s 18 of the Interpretation Act, a construction that would promote the purpose or object underlying the written law (whether stated in the written law or not) is to be preferred as against a construction that would not promote that purpose or object. I am mindful that s 18 of the Interpretation Act does not direct me to apply a construction which 'will best achieve' the object of the legislation: IpilatesPerth Pty Ltd and City of Joondalup [2020] WASAT 52; (2020) 100 SR (WA) 72 at [62].
Rather, s 18 of the Interpretation Act operates where there is more than one construction open. In such circumstances, s 18 of the Interpretation Act provides that I should choose a construction that would promote the underlying objects or purposes of the legislation as against one which would not: Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227LGERA368 at [37] (Banks-Smith J); see also Dao Ji Association and City of Gosnells [2020] WASAT 10 at [96].
Issues
The parties are in broad agreement as to the issues that arise for determination. In the context of the Original Application, the parties consider, and I agree, that the following issues need to be determined:
1.Is the proposed car wash an appropriate use of the Land, having regard to:
(a)the objectives for the Local Centre zone; and
(b)the relevant provisions of LPP 2.4.
2.Is the proposed mechanical workshop an appropriate use of the Land, having regard to:
(a)the objectives for the Local Centre zone; and
(b)the relevant provisions of LPP 2.4.
Consequent on Amendment 38, the applicants say a third issue arises for determination in the Original Application, namely:
3.Whether the proposed mechanical workshop is properly classified as 'Industry light' or 'service station'.
In terms of the New Application, the parties consider, and I agree, that the following issues arise for determination:
1.What is the correct classification for the proposed mechanical workshop?
2.Does the proposed use require development approval under LPS 1?
3.Is the proposed mechanical workshop an appropriate use of the Land, having regard to:
(a)the objectives for the Local Centre zone; and
(b)the relevant provisions of LPP 2.4.
Nature of the review
These proceedings arise in the Tribunal's review jurisdiction. My task, even in the context of the Original Application which has been remitted, is to hear the matter de novo and to make the 'correct and preferable decision': s 27 SAT Act.
The applicants raise a question of existing use rights (for a 'service station') which I must address in making the correct and preferable decision. However, I am mindful that the Tribunal is a creature of statute may only exercise the jurisdiction that was exercised by the Town in making the reviewable decision: s 29(1) of the SAT Act; see also The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227 at [20][23] (Pullin, Newnes and Murphy JJA); Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89 at [78] (Buss P, Murphy and Mitchell JJA).
Like the Town at first instance, I must be cognisant of the nature and limits of my role and ensure that I do not exceed my authority under the PD Act and the SAT Act: Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79; (2010) 72 SR (WA) 324 at [30] (Pritchard DCJ, as the President then was).
In this instance, the question of whether the Land enjoys existing use rights was an issue that was before the Town in determining whether the Original Application or the New Application should be approved. It follows that, on review and standing in the shoes of the Town, I too must address that question.
However, my decision in relation to the question of existing use rights is not in the nature of a declaration that has any legal effect. I have no authority to make such a declaration: s 91(2) of the SAT Act. Rather, in exercising the discretion as to the correct and preferable decision, I must reach a view as to whether I consider the Land has the benefit of existing rights for a service station.
The witnesses
In the remitted hearing, I had the benefit of evidence from four witnesses.
For the applicants, Mr Nigel Warr gave evidence as to the types of servicing that would be proposed at the workshop and the likely intensity (capacity) of the workshop. The respondent called Mr Michael Chappell who has tertiary qualifications in economics and is a director of Pracsys Economics. Mr Chappell gave evidence in relation to the likely catchment and viability for the Original Application and the New Application.
Both parties called town planners. Mr Neil Teo appeared for the applicants. Mr Teo is a director of Dynamic Planning and Developments. Mr Sean Fairfoul was called by the respondent. Mr Fairfoul is a Planning Manager at Greg Rowe and Associates.
My overarching impressions of the evidence
Mr Nigel Warr
Mr Warr's evidence was largely uncontested. Mr Warr is, essentially, 'Auto Masters' in the sense that he is the sole director, secretary and managing director of Auto Masters Australia Pty Ltd. Mr Warr has over 30 years' experience in the retailing and repair of motor vehicles. Mr Warr's evidence explains the distinction between 'minor', 'standard', 'major' and 'hybrid' car services.
Mr Warr's evidence was that the types of services that would be undertaken at the proposed workshop would largely be 'minor' repairs whereby vehicles are dropped off, serviced and picked up on the same day. The workshop will not complete body repairs, painting or smash repairs: ts 36, 14 July 2020. Tyre repairs, not replacement of tyres, will be offered at the workshop: ts 41, 14 July 2020.
In the light of the evidence provided by Mr Chappell, Mr Warr's evidence was that the number of vehicles serviced by Auto Masters, on average, is 7.7 vehicles per day: ts 38, 14 July 2020. In terms of viability, Auto Masters can 'survive' on 4 4.5 cars per day: ts 40, 14 July 2020.
Mr Warr's evidence is that 40% of Auto Masters' business is servicing and 60% is light repairs: ts 39, 14 July 2020.
In terms of the car wash, Mr Warr disputed Mr Chappell's opinions on the likely patronage from residents living within 500 metres. Mr Warr's experience suggests the market share from residents within 500 metres would be greater than the 20% estimated by Mr Chappell.
Mr Neil Teo
Mr Teo gave planning evidence for the applicants. In the context of the Original Application, his view was that the workshop component of that proposal is now more appropriately classified as a 'service station' under LPS 1: Exhibit 28 at para 22.
Mr Teo considers that if the Tribunal is not satisfied that the Land enjoys existing use rights for a service station, then the proposed workshop should be regarded as being consistent with the objectives of the Local Centre zone: Exhibit 28 at para 141. I deal with the applicants' existing rights argument at [81][131].
Mr Teo also considers that the proposed workshop is consistent with LPP 2.4: Exhibit 28 at paras 118158.
Mr Teo also considered that the car wash was consistent with the objectives of the Local Centre zone as read with LPP 2.4: Exhibit 28 at paras 32 to 117.
In the context of the New Application (in which the contention that the Land enjoys existing rights is also pressed), Mr Teo considers that the development would be consistent with the planning framework and should be approved: Exhibit 27 at paras 1172.
For reasons which I will explain, I do not accept Mr Teo's opinion that the Original Application and the New Application are consistent with the planning framework such that development approval ought to be granted.
Mr Michael Chappell
Mr Chappell was instructed 'to undertake an assessment of the mechanical workshops [in the context of the Original Application and the New Application] and the proposed car wash at the site to determine the likely viable catchment based on experience [and empirical] observation' and 'to determine [if the] catchment for both facilities, the mechanical workshop and the car wash, were likely to exceed the 500 square metre radius': ts 46, 14 July 2020.
Without intending any criticism of Mr Chappell, for a number of reasons, his evidence was of limited assistance to me.
First, in his own words, he was instructed to address questions as to viability or market share of the proposed land uses. It seems to me that it would be wrong to conflate the zoning objectives that seek to 'provide services for the immediate neighbourhoods' and centres which 'focus on the main daily household shopping and community needs' with a requirement that any proposed land use be closely analysed to ascertain if its local draw would constitute a viable land use.
I consider that the zoning objectives, like any scheme provision, are to be read and applied inter alia in a broad fashion and consistent with its town planning purpose. Scheme provisions are not to be read pedantically. In my view, it is also the case that whether a proposed use is consistent or otherwise with the zoning objectives is really an evaluative judgment and is not intended to be the product of a mathematical inquiry or fine-grained economic analysis: Nairn v Metro-Central Joint Development Assessment Panel [2018] WASCA 18 at [90] (Buss P, Murphy JA, Beech JA) (Nairn).
Second, Mr Chappell did not speak with Auto Masters on issues relating to its business or questions of viability. Mr Chappell's assumptions on 'viability' were far different from Mr Warr's estimate of what it takes for an Auto Masters workshop to 'survive'.
In that regard, there is no basis on which I cannot accept the evidence of Mr Warr in terms of the average servicing rates of Auto Masters. Mr Chappell assumed that 10 vehicles per day (for a two service bay facility) was a reasonable average from which to extrapolate his data. That figure is 25% more than the average number of services performed by Auto Masters per day. It follows that I do not accept the veracity of this aspect of Mr Chappell's analysis.
Third, Mr Chappell's analysis was little more than a count of the number of cars present at a workshop during the observation period. As Mr Warr explained, there may be cars on site for a number of reasons, including getting a quote or even purchasing automotive supplies: ts 38, 14 July 2020.
Fourth, Mr Chappell appears to read the 500 metre radius for land uses as being a strict requirement: Exhibit 26 at para 21. However, the 'requirement' that the 'immediate neighbourhood' be regarded as a 500 metre radius stems from LPP 2.4, not LPS 1. That is, the 500 metre 'requirement' stems from a policy and is therefore to be applied flexibly, not slavishly: Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) 74 LGRA 68 at 540; 85 (Falc).
However, there is one aspect of Mr Chappell's evidence that I found particularly helpful. His evidence was that 46% of Australians utilise a car wash each year and that, on average, they will attend a car wash facility 10.6 times per year: Exhibit 26 at para 22; ts 71, 14 July 2020. I will return to discuss this evidence later in these reasons.
Mr Sean Fairfoul
Mr Fairfoul gave evidence on behalf of the Town. His overall opinion in relation to the Original Application was that it does not warrant approval. His concerns with the mechanical workshop are that it is not a use that is for the 'daily community needs' because most people only attend a mechanical workshop 'in the order of once or twice a year': Exhibit 29 at para 130.
Mr Fairfoul considered the mechanical workshop should be in a higher order activity centre (pursuant to SPP 4.2): Exhibit 29 at para 132. Mr Fairfoul also considered that the built form did not warrant approval as it was not a 'high quality, pedestrian friendly, street-orientated development': Exhibit 29 at para 134.
Mr Fairfoul considered that the New Application 'includes a more appropriate built form and that it is generally consistent with the predominant form of the buildings within the remainder of the centre': Exhibit 29 at para 157. However, even with that, Mr Fairfoul does not consider that the New Application warranted support.
I must say that Mr Fairfoul was an impressive witness. He approached his task as an expert witness in a manner that is to be commended and encouraged. This is because he gave his expert opinions frankly and without fear or favour to his own client's position.
The planning history of the Land
As I have mentioned, Amendment 38 to LPS 1 amended the definition of 'service station'. The effect of the amendment was to allow a standalone mechanical workshop to be classified as a 'service station'.
Prior to Amendment 38, in order to be a 'service station' petroleum products needed to be offered for retail sale. Amendment 38 is of some consequence in these proceedings. Based on the amended definition, it would appear that the mechanical workshop component of the Original Application and the New Application would fall within the terms of 'service station' as currently defined in LPS 1.
The change to the definition of 'service station' has resulted in the applicant pressing a claim that the Land enjoys existing rights as a 'service station'. In order to properly address that claim, I set out the following planning history of the Land from the respondent's Statement of Issues, Facts and Contentions in the New Application (Exhibit 19) which is not contested.
15.From 1915 until 1994 the Land was within the district of the City of Perth. Since the establishment of the Town of Cambridge on 1 July 1994, the Land has been within the district of the Respondent.
16.The Land was formerly the subject of Certificate of Title Volume 1561 Folio 110 (Title). The Title reveals that:
(a)in 1953 the land owner registered a mortgage in favour of Vacuum Oil Company Proprietary Limited; and
(b)in 1963 a lease of the Land for a term of 10 years from 1 March 1963 was registered in favour of Mobil Oil Australia Limited.
17.The Respondent's records for the Land show that:
(a)a building permit was granted by the City of Perth for a 'Brick Shop, Service Station & Workshop' on 5 June 1953 (1953 building permit);
(b)Mobil Oil Australia Limited made an application for approval to commence development pursuant to the Metropolitan Region Scheme in or around September 1973, by which approval was sought for 'Alterations and additions to existing service station' (MRS application);
(c)the Metropolitan Region Planning Authority granted development approval to the MRS application on 25 June 1974 (1974 MRS extension approval);
(d)on 28 November 2000, development approval was granted by the Respondent under LPS 1 for a development comprising a car wash and petrol sales, (2000 approval), but the 2000 approval was not acted on and lapsed in November 2002;
(e)on 13 December 2001 approval for the demolition of the service station was granted.
18.Aerial photographs of the Land show that:
(a)on 27 November 1953, there appears to be works of some kind on the Land in a location and footprint generally consistent with the 1953 building permit, but the resolution of the image is poor;
(b)by August 1958, a building had been constructed in a location and with a footprint generally consistent with the 1953 building permit;
(c)the building remained in place, with various alterations and additions, until its demolition in 2002.
19.The report to the 28 November 2000 meeting of the Council with respect to the application for a car wash and petrol sales includes the following passage:
'Site History
The original Service Station approval was granted in 1970. The subsequent minor extensions were approved in 1973 and 1979 and a distillate tank was installed in 1981. In 1988, the service station changed hands from Mobil to Caltex and two new pumps, landscaping and new pavers were approved. In 1988, a new canopy was approved which is still existing. The service station ceased trading early this year.''
20.With respect to the site history described in the above passage:
(a)the Respondent does not know the source(s) of the information which inform the site history summary;
(b)the Respondent has no record of any approval being granted for a service station on the Land in 1970. The description of a 1970 approval as being the 'original Service Station approval' is in any event plainly incorrect, having regard to the 1953 building permit;
(c)the Respondent has no record of any approvals for 'minor extensions' in 1973 or 1979;
(d)the Respondent has no record of any approval for the installation of a distillate tank in 1981, nor of any approval for two new pumps, landscaping and new pavers in 1988.
Regulatory history
21.As from 10 October 1961, the provisions of the Town Planning Classification or Zoning By-law for Land and/or Buildings in the North Perth-Mt. Hawthom Wembley-Leederville Area (Bylaw No. 64) (By-Law 64) and the North PerthMt. Hawthorn-Wembley-Leederville Zoning Plan forming part of By-Law 64 (By-Law 64 Zoning Plan), applied to the Property as part of the City of Perth Municipal District. The Land was located within Zone 7 of the By-Law 64 Zoning Plan.
22.For the purpose of By-law 64:
except where otherwise herein provided, allotments or parts of allotments of land and/or and/or buildings. buildings or parts of buildings now existing or hereafter erected, altered or enlarged, shall be classified for use for the following purposes,
including, among others Class C - Business.
23.In the Class C- Business classification:
shall be included land and/or buildings used or intended to be used for any of the purposes referred to in Classes Cl to CJ 2 ...
including (Class CS Purpose);
Class CS-Motor repairing and servicing shops including retailing of automotive fuel, lubricants and accessories
24.Land and buildings in Zone 7 (offices, shops, showrooms and warehouses) of the By-Law 64 Zoning Plan 'may be used for the following purposes and no other' and specifically include a Class CS Purpose.
25.No formal planning approval was required for land or buildings to be used for a Class CS Purpose under By-Law 64, and the use of land or buildings for that purpose was a lawful use.
26.As from 20 December 1985, the City of Perth City Planning Scheme (CPS) was gazetted and applied to the Wembley district, as part of the scheme area, including the Land.
27.The CPS defined the land use of 'service station' to mean:
any land or building used for:
(a)the supply of petroleum products and automotive accessories; or
(b)those purposes and the provision of lubrication and greasing services, tyre repairs and minor mechanical repairs;
28.As from 31 March 1998, the Town of Cambridge Town Planning Scheme No.l (now referred to as the Town of Cambridge Local Planning Scheme No,1) was gazetted and applied to the Land, repealing both the CPS (referred to in LPS l as the Town of Cambridge Town Planning Scheme) and ByLaw 64.
29.At the time of gazettal, LPS1 defined the land use of 'service station' to mean:
any land or buildings used for the retail sale of petroleum products and motor vehicle accessories and for carrying out greasing, tyre repairs, minor mechanical repairs to motor vehicles but does not include a transport depot, panel beating, spray painting, major repairs or wrecking.
30.In addition to introducing zoning objectives and among other matters, Amendment 38 to LPS 1:
(a)repealed the then 'service station' land use definition, which provided as follows (emphasis added):
any land or buildings used for the retail sale of petroleum products and motor vehicle accessories and for carrying out greasing, tyre repairs, minor mechanical repairs to motor vehicles and goods of an incidental/convenience retail nature but does not include a transport depot, panel beating, spray painting, major repairs or wrecking.
and
(b)inserted the following new 'service station' land use definition (emphasis added):
service station means premises other than premises used for a transport depot, panel beating, spray painting, major repairs or wrecking, that are used for -
(a)the retail sale of petroleum products, motor vehicle accessories and goods of an incidental or convenience nature; and/or
(b)the carrying out of greasing, tyre repairs and minor mechanical repairs to motor vehicles.
31.Clause 18(3) of LPS l provides:
A specific use class referred to in the zoning table is excluded from any other use class described in more general terms.
The applicants' existing use argument
As I understand it, the applicants' argument is that immediately before LPS 1 commenced on 31 March 1998 the Land was lawfully being used as a service station.
Clause 22(1) of LPS 1 provides that:
Non-conforming use rights
Unless otherwise provided, this Scheme does not prevent
(a)the continued use of any land, or any structure or building on land, for the purpose for which it was being lawfully used immediately before the commencement of [LPS 1].
(b)the carrying out of development on land if
(i)before the commencement of this Scheme, the development was lawfully approved; and
(ii)the approval has not expired or been cancelled.
The applicants submit that the effect of cl 22(1)(a) of LPS 1 is that approval (under cl 60 of the deemed provisions) is not required in order to use the Land as a mechanical workshop (being a 'service station' for the purposes of LPS 1). Put another way, cl 22(1)(a) of LPS 1 establishes a service station as an existing use right on the Land.
A 'service station' use was not a non-conforming use under LPS 1 but continued as an existing lawful use. Because a service station was not a non-conforming use under LPS 1, the provisions of cl 22(2) which relate to the discontinuance of non-conforming use rights after a period of six months have no application.
The applicants further submit that the use of the Land for a service station has never been abandoned. While approval was granted for a non-service station use (the car wash and petrol sales facility) on 28 November 2000, that approval was never acted upon.
The effect of cl 22(1)(a) of LPS 1 is that development approval under LPS 1 is now only required for the works component of the service station. This is because the Land has existing use rights for a service station.
The respondent's submissions on the existing use rights argument
The respondent does not accept that existing use rights apply to the Land. The respondent considers that because development approval has never been obtained for a service station on the Land, the recommencement of that use requires approval.
The respondent further submits that the applicants' argument that, in effect, a 'lawful use' continues to 'run with the land' is misconceived and is not a concept known to the law. The respondent contents that in making such an argument, the applicants are conflating two separate general principles, namely that:
(a)development approval is a right in rem that runs with the Land; and
(b)a lawful existing use enjoys existing use rights.
The mechanical workshop is not existing and therefore is not an 'existing use'. The previous lawful use of the Land for a service station can, and has been, abandoned.
Consideration of the question of existing use rights
As I observed in Rochester and Shire of Northam [2019] WASAT 107 (Rochester) any lawful development enjoys what might conveniently be termed 'existing use rights': at [78]. Some existing use rights are 'non-conforming use' rights.
Most of the rights to use and develop land arise from development approvals issued by planning authorities or otherwise by the fact that a use was 'permitted' and thus approval was not required. However, sometimes the existing use right arises from a use being commenced prior to planning controls being enacted: Shire of Perth v O'Keefe [1964] HCA 37; 110 CLR 529; 10 LGRA 147; Turnbull Group v North Sydney Council [1998] NSWLEC 253; (1998) 101 LGERA 354 (Turnbull Group) (Sheahan J).
Clause 22 of LPS 1 is principally a clause that addresses the position of non-conforming use rights. In effect, cl 22 provides that so long as non-conforming uses 'continue' then they remain lawful uses for the purposes of LPS 1. Clause 22(2) gives some clarity as to what 'continued' means in the context of cl 22(1)(a) and provides, in effect, that non-conforming uses are 'continued' uses provided they are not discontinued for a period of six months (or a longer period approved by the respondent).
However, I accept the applicants' submission that cl 22(1)(a) of LPS 1 has a wider operation than just non-conforming uses rights and operates to ensure that any existing lawful use may continue under LPS 1. That is, cl 22(1)(a) provides that all developments that were lawful under the former City Planning Scheme (CPS) may continue.
Clause 22(1)(a) is a transitional provision that clarifies that the commencement of LPS 1 did not have the effect of making existing uses, including any use that had become a non-conforming use, unlawful. Likewise, cl 22(1)(b) provides that a development approved under the CPS may be 'carried out' under LPS 1 provided it remains effectual.
I therefore accept that cl 22(1)(a) of LPS 1 operates to ensure that the existing use rights for a service station on the Land continued in the transition from CPS to LPS 1. As I understand it, the Town does not contest that point.
However, I cannot otherwise accept the applicants' construction of cl 22(1)(a) of LPS 1, the effect of which is that the use 'service station' remains an existing use on the Land, for the following two overlapping reasons. While not strictly necessary, I have included a third reason as to why I do not accept the applicants' contentions on the scope of any existing use rights in the event that such rights did continue.
Firstly, neither the Original Application nor the New Application falls within the terms of cl 22(1)(a) of LPS 1. That is, neither of these uses involve the 'continued' use of the Land. The Land has been vacant for almost 20 years. There has been no continuous use of the Land that would operate to preserve the existing use rights that were once enjoyed. In order to fall within the terms of cl 22(1)(a) a continuity of land use must be shown: Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123 at 131 (Mahoney JA) (TAJJ Investments). In this instance, the Land has been vacant for almost two decades and any historic existing rights have dissolved with the effluxion of time.
The word 'continued' is not defined in LPS 1 and therefore carries its ordinary and common meaning: van der Feltz v City of Stirling [2009] WASC 142; (2009) 137 LGERA 236 at [90] (Murphy J). Having regard to the context in which it is used in cl 22(1)(a), 'continued' means to 'persist in, maintain, not stop' or 'to remain in existence or unchanged': The Australian Oxford Dictionary, (2nd ed, 2004) or 'to last or endure', 'to remain in place' or 'to go on with or persist in': Macquarie Concise Dictionary, (4th ed, 2006).
To my mind, and reading and applying LPS 1 in a practical manner consent with its town planning purpose, the word 'continued' in the context of cl 22(1)(a) operates to mean, in effect, that any existing uses (non-conforming or otherwise) may continue under LPS 1.
I do accept the word 'continued' does not mean that there cannot be periods of inaction or times when the use temporarily ceased. In Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138; (1973) 28 LGRA 410 (Barwick CJ, McTiernan J, Gibbs J and Mason J) (Banool) the High Court accepted that the phrase 'the continued use' suggested that a 'use is still continuing, notwithstanding that it may be marked by some interruptions or breaks which are not of such a kind to bring about a termination or abandonment of the use': at 144, 415 (Mason J).
Having regard to the site history of the Land set out at [78][80], the service station closed and was demolished pursuant to an approval granted on 13 December 2001. A development approval for a car wash and petrol sales facility was granted on 28 November 2002. To my mind, the demolition and decommissioning of the former service station is prima facie evidence that the use was abandoned: TAJJ Investments at 131 (Mahoney JA).
In order to make good its case that the service station use should be regarded as a 'continued' use, it would be necessary for the applicant to demonstrate that notwithstanding the intervening 20 years, there has been a sustained and ongoing intention to develop the land for a service station.
The applicants became the registered proprietors of the Land on 19 November 2018. However, the applicants led no evidence in relation to the planning intentions for the Land between 2000 and 2018. In this instance the 'interruption or break' in the continuity of use was for such as duration as to bring about the abandonment of the use. I find that the service station use is not a 'continued' use for the purposes of LPS 1.
Secondly, in my view any existing use rights on the Land have been long been abandoned. Contrary to the applicants' submissions, some existing use rights can be abandoned. One of the distinctions between existing use rights arising from uses that commenced prior to planning controls, as against uses that are authorised by way of a development approval, is that the former can be abandoned whereas the later cannot.
I must say there are not many authorities on the question of abandonment of a development approval or planning permission. Perhaps there are reasons for why that is so. The leading authority seems to be the decision of the House of Lords in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132 (Pioneer Aggregates) where it was pronounced that a planning permission could not be abandoned.
The facts involved a quarry approved in 1950 which ceased production in 1966 and thereafter remediation works were undertaken. In 1978 a new owner wanted to recommence quarrying. Once they did recommence, enforcement action was taken. The matter proceeded to the House of Lords which ultimately found that the introduction of a doctrine of abandonment of planning permissions into planning law was not justified as it would lead to 'uncertainty and confusion in the law': at 142 per Lord Scarman.
The case of Hartley v Minister for Housing and Local Government [1970] 1 QB 413 is also of note as it was a case involving existing uses derived not from a planning permission (but use rights that predated planning controls). The Court of Appeal found that the cessation of a car sales and petrol-filling station meant that the use had, as a matter of law, been abandoned. In consequence of that, the resumption of only the car sales use some four years later was properly the subject of enforcement action.
In Australia, the Full Court of Victoria followed Pioneer Aggregates in Park Street Properties Pty Ltd v South Melbourne City Council [1990] VR 545; (1989) 69 LGRA 231 (Crockett J, O'Bryan J, Gray J) (Park Street Properties). At issue was whether a planning permit granted in 1969 allowing land to be used for 'offices, showroom and laboratory' could be subsequently acted upon in 1987.
The Full Court found that the 1969 permit 'lay dormant but capable of subsequent revival by a subsequent owner. No other planning permission with the 1969 permit was ever sought by an owner or occupier': Park Street Properties at 243. The Court found that the reasoning of Lord Scarman in Pioneer Aggregates was 'correct and accordingly this Court should follow [that decision]. No judicial decision in this State or elsewhere in Australia casts any doubt upon the principle enunciated by the House of Lords': Park Street Properties at 242.
The correct and preferable decision is to dismiss these applications.
Orders
And the Tribunal orders:
1.In proceeding DR 325 of 2018, the application for review is dismissed.
2.In proceeding DR 61 of 2020, the application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
20 OCTOBER 2020
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