Warr v Town of Cambridge
[2019] WASC 362
•15 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WARR -v- TOWN OF CAMBRIDGE [2019] WASC 362
CORAM: ALLANSON J
HEARD: 3 OCTOBER 2019
DELIVERED : 15 OCTOBER 2019
FILE NO/S: GDA 5 of 2019
BETWEEN: NIGEL WARR
DONNA WARR
Appellants
AND
TOWN OF CAMBRIDGE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: MR P DE VILLIERS, MEMBER
MR S WILLEY, MEMBER
Citation: WARR and TOWN OF CAMBRIDGE [2019] WASAT 27
File Number : DR 325 of 2018
Catchwords:
Town planning - Appeal from State Administrative Tribunal - Whether Tribunal erred in law in construction and application of planning policy - Turns on own facts
Legislation:
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 64, cl 67
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellants | : | J Skinner |
| Respondent | : | M Hotchkin |
Solicitors:
| Appellants | : | Thomson Geer - Perth |
| Respondent | : | Hotchkin Hanly |
Case(s) referred to in decision(s):
City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185; (2016) 50 WAR 466
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Re Shire of Mundaring; ex parte Solomon [2007] WASCA 132
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72
Warr and Town of Cambridge [2019] WASAT 27
Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259
ALLANSON J:
In August 2018, the applicants applied to the respondent for approval for the development of a mechanical workshop and car wash at premises within the Town of Cambridge. The respondent refused the application.
On review, the State Administrative Tribunal affirmed the decision of the respondent, finding that the mechanical workshop was not an appropriate use on the subject site.
The applicants have applied for leave to appeal a decision of the State Administrative Tribunal.
By s 105 of the State Administrative Tribunal Act 2004(WA), a party to a proceeding may appeal to the Supreme Court with leave. The appeal can only be brought on a question of law.
On 4 July 2009, Quinlan CJ ordered that the application for leave be heard together with the appeal.
The proposed grounds of appeal
The notice of appeal contains three proposed grounds:
1.The State Administrative Tribunal (Tribunal) erred in law in
1.1erroneously applying part of the 'statement of intent' for the Local Centre zone in the Respondent's Local Planning Policy 6.4 - Precinct P4: Wembley Precinct (Policy), as requiring that the appellant's proposed development (Development) 'serve the day to day needs of the local residents' in order to be an appropriate use on the subject site;
1.2alternatively, erroneously interpreting the provisions of that part of the 'statement of intent' for the Local Centre zone in the Policy and finding that the mechanical workshop component (Mechanical Workshop) of the Development did not 'serve the day to day needs of the local residents'; and
1.3applying that erroneous interpretation in concluding that the Mechanical Workshop 'is not an appropriate use on the subject site' notwithstanding the scope of uses permissible in the Local Centre zone by the Respondent's Local Planning Scheme No 1.
2.In the alternative to Ground 1, the Tribunal erred in law by taking into account an irrelevant consideration, namely, that the relative lack of frequency of use of the Mechanical Workshop (generally approximately every six months) has the result that the Mechanical Workshop does not provide a 'day to day service to the local residents' in the sense of not being part of ordinary routine and regular activity.
3.The Tribunal erred in law in failing to take into account, or alternatively attributing no weight to, the existing uses in the applicable local Centre zone (namely, a veterinary clinic, picture framers', hairdresser, professional offices, beauty salon, plumbing and gas shop and a pool spa and equipment Centre (Uses)), where, irrespective of whether those Uses were approved with the Policy in force or not:
3.1those Uses, and the services provided by them, comprise the 'existing range of local shopping and community facilities' that 'will be consolidated' within the 'local centre' zone, pursuant to the statement of intent of the Policy; and
3.2the needs of the local residents as met by those Uses is a relevant consideration in determining the nature of the 'day to day needs of the local residents' for the purposes of the statement of intent contained within the Policy.
In substance, the balance of the grounds are alternatives to ground 1.1.
The background facts
The following statement of facts is taken from the decision of the State Administrative Tribunal.[1]
[1]Warr and Town of Cambridge [2019] WASAT 27 [1] ‑ [22] (primary reasons).
The subject site is No 59 (Lot 423) Marlow Street, Wembley. It falls within the Wembley Precinct and is located on the south-west corner of the intersection of Marlow Street and Grantham Street. The site is currently vacant as the service station which previously occupied the site was demolished some time ago.
The site immediately to the west is occupied by a Childcare Centre. The site immediately to the south in Marlow Street contains a recently constructed two-storey single dwelling. The property diagonally to the south-west contains a single storey residence.
The remaining three corners of the Marlow Street and Grantham Street intersection contain existing commercial units which include a veterinary clinic, picture framers, a hairdresser, offices, a beauty salon, plumbing and gas services, and pool equipment supply and services.
The broader locality generally comprises a mix of single and two story residential premises.
The proposed development comprises two businesses: a mechanical workshop located on the eastern section of the subject site comprising a single storey building; and a self-service car wash.
While the development is put forward as an integrated proposal, the intention is that these two businesses are to operate independently.
On 28 August 2018 the applicants applied to the respondent seeking approval for the development.
The application was advertised and the respondent received 128 submissions of which 127 objected to the development.
Amended plans and further information were provided by the applicants in October and November 2018.
On 11 December 2018 the application was considered by the Development Committee of the respondent and refused.
On 17 December 2018 the applicants applied to the Tribunal seeking a review of that decision.
On 5 February 2019 the Western Australian Planning Commission approved the proposed development subject to conditions, including conditions regarding egress from the site.
Following mediation in February 2019, the respondent was invited to reconsider its decision. On 19 march 2019, the respondent again refused the application.
The applicants sought review of the respondent's decision in the State Administrative Tribunal. The issues in the tribunal were agreed as follows:
1.Is the proposed development of a car wash an appropriate land use?
2.Is the proposed development of a mechanical workshop an appropriate land use?
3.Is the proposed layout and built form consistent with the intended character of the centre?
4.Is the proposed mechanical workshop a permissible land use?[2]
[2] Primary reasons [37], [39].
The fourth issue turned on whether the mechanical workshop fell within the use class of 'industry-general' - in which case it would be prohibited - rather than 'industry-light'. The tribunal found, and the finding is not challenged, that the proposed use was 'industry-light'.
The planning framework
The site of the proposed development is zoned 'Urban' under the Metropolitan Region Scheme.
The site is within the Scheme Area of the Town of Cambridge Local Planning Scheme No 1 (LPS 1). Land within the Scheme Area is classified in nine zones.
The proposed development is within the Local Centre Zone under LPS 1.
The Scheme Area is also divided into six Precincts set out in the Precinct Planning Policies made pursuant to cl 48 of LPS 1, and contained in the Council's Policy Manual.[3]
[3] LPS 1, Part 3 div 1, cl 17.
The proposed development is in the Wembley Precinct. The Wembley Precinct also contains land zoned Residential, Commercial, and Residential/Commercial, as well as Reserves.
By cl 18 of LPS 1:
Unless otherwise consistent with a planning approval, the development of land is to be in accordance with the standards and requirements contained in this Scheme Text, the Planning Policies and the Residential Design Codes.
Unless it comes within an exemption in cl 33, a development requires approval of the Council.[4] When considering an application for planning approval, the Council is to have regard to the matters set out in cl 38(4), which includes the provisions of the Scheme, any relevant Planning Policy, the orderly and proper planning of the locality, and the conservation of the amenities of the locality.[5] That is, the Policy was a matter to which the tribunal was required to have regard, if relevant.
[4] LPS 1, cl 32.
[5] See also cl 67 in sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), which requires a local government considering an application for development approval to have due regard to the any local planning policy for the Scheme area 'to the extent that, in the opinion of the local government, [the policy is] relevant to the development the subject of the application'.
The uses permitted in the Scheme Area in the various zones is set out in the Zoning Table under cl 12 of LPS 1. The Zoning Table provides for the following uses:
'P' (permitted) means that the use is permitted by the Scheme providing the use complies with relevant development standards and requirements of the Scheme;
'D' (discretionary) means that the use is not permitted unless the Council has exercised its discretion by granting planning approval;
'A' (advertising) means that the use is not permitted unless the Council has exercised its discretion by granting planning approval after giving notice in accordance with clause 64 of the Planning and Development (Local Planning Schemes) Regulations 2015 ; and
'X' (prohibited) means that the use is not permitted by the Scheme.[6]
[6] LPS 1, cl 11(2).
Relevantly, in the Local Centre Zone, the use 'industry - light' is a 'D' use, and 'motor vehicle wash' is an 'A' use.
The relevant policy is Local Planning Policy 6.4: Precinct 4: Wembley which provides, in its introduction:
The Wembley Precinct will remain a residential area serviced by a number of retail, commercial and recreation facilities. Most development comprises single houses at low density, although medium density development is permitted in select locations. Non-residential development is restricted to the Wembley Town Centre, along parts of Cambridge Street and Salvado Road, and the Residential/Commercial zone along Herdsman Parade.
The following policy provides statements of intent and development standards for each zone in the precinct, which, in addition to any other relevant policy, are to be used to assess applications for development within the precinct. Policy requirements under all other sections of the Policy Manual also apply unless specifically varied in the precinct policy.
The statement of intent in the Precinct Policy for land zoned Local Centre, provides:
•The existing range of local shopping and community facilities will be consolidated within these areas to serve the day to day needs of the local residents.
•Any new development should be built up to the street boundary and be of a height and scale similar to the majority of existing buildings. Continuous shop fronts and weather protection over the footpath for pedestrians should be provided.
•Careful control will be exercised over the nature of any uses proposed and their design and site layout to ensure minimal impact on any adjacent residential development. Additionally, adequate car parking must be provided to ensure that retail parking does not encroach into residential streets.
Development standards provide for maximum plot ratios, setbacks, verandahs/awnings, pedestrian access, and residential density.
The State Administrative Tribunal decision
Having regard to the limited nature of the appeal, these reasons are concerned primarily with one aspect of the tribunal decision.
The tribunal found the use as a mechanical workshop was 'industry light', and not permitted unless the Council had exercised its discretion by granting planning approval.
In considering whether the use was an appropriate use of the land, the tribunal took the Precinct Policy as setting out 'the initial relevant consideration'.[7] It said, correctly, that the Precinct Policy was intended to guide the exercise of its discretion in assessing appropriate uses within the 'Local Centre' zones within the Wembley Precinct.[8]
[7] Primary reasons [63].
[8] Primary reasons [66].
The tribunal said that the statement of intent for the 'Local Centre' was particularly relevant, emphasising the first 'bullet point'.[9]
[9] Primary reasons [67] – [68].
The tribunal referred to the competing arguments from the parties' planning experts about whether the workshop and car wash would serve the day to day needs of the local residents. It then considered the following matters:
(1)the existing uses in the precinct, although it found that it could not place much weight on those uses because it had 'no definitive evidence on when these uses were approved, under what provisions, or their respective hours of operation';[10]
(2)whether there were other businesses providing the same service in the immediate or broader locality;[11]
(3)the potential frequency of use, including whether local residents would tend to go to the closest such business, and the likely 'catchment' area for such businesses.[12]
[10] Primary reasons [73].
[11] Primary reasons [74].
[12] Primary reasons [74] ‑ [79].
The tribunal also referred to factors relating to the potential impact on amenity including noise and hours of operation compared to existing commercial uses, and amelioration of potential adverse impacts from noise.[13]
[13] Primary reasons [80] ‑ [89].
The tribunal concluded that 'in terms of the "[day-to-day]" use requirement set out in LPP 6.4 … the car wash is an acceptable use on the site'.[14] In making that finding, the tribunal referred to actual use of the facility; that it could 'reasonably be considered as part of ordinary routine and regular activity'; and that, 'while its use will clearly not be restricted to local residents it would provide a service to those residents'.[15]
[14] Primary reasons [90].
[15] Primary reasons [90].
In relation to the mechanical workshop, the tribunal concluded:
In terms of the '[daytoday]' use requirement set out in LPP 6.4 the Tribunal finds that the mechanical workshop cannot be considered a daytoday need of the local residents for the following reasons:
•While there can be no rigid principles of what is a daytoday use, the Tribunal finds that the frequency of use of such a facility generally approximately every six months cannot reasonably be considered as part of an ordinary routine and regular activity;
•Furthermore the limited evidence before the Tribunal suggested that such operations draw on a far wider catchment suggesting that the local residents would be likely to constitute a more limited component of the customers utilising the facility; and
•On that basis the Tribunal finds that the mechanical workshop is not an appropriate use on the subject site.[16]
[16] Primary reasons [91].
The tribunal further found that approval of the car wash in the absence of the proposed mechanical workshop would effectively constitute a substantially different proposal. That is, if the mechanical workshop use was not permitted, the car wash should be refused.[17]
[17] Primary reasons [107].
Section 105 of the State Administrative Tribunal Act
The jurisdiction which this court exercises under s 105 is well settled.[18] The proceedings are not a rehearing: the essential character of s 105 is that it provides for proceedings in which the legal correctness of what the tribunal has done can be challenged. The subject matter of the appeal is the question or questions of law, and that question must be identified with precision.
[18] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 [15]; Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18]. And see City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185; (2016) 50 WAR 466 [37] ‑ [39]; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361.
An error that does not affect the tribunal's decision, is not sufficient. The error must be shown to be sufficiently material to warrant setting aside the tribunal's decision.[19]
[19] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 [131] ‑ [132].
The error alleged by the appellant is in the tribunal's erroneous interpretation and application of policy. In Ord Irrigation Cooperative Ltd v Department of Water, the court listed (not exhaustively) circumstances in which the misconstruction of a non-statutory policy will constitute an error of law, giving rise to a question of law for the purposes of s 105 of the State Administrative Tribunal Act:
(1)A serious misunderstanding of a policy to which the Tribunal is bound to have regard may constitute a failure to have regard to a mandatory relevant consideration.
(2)The misapprehension of the effect of a policy document may also, as a matter of fact, lead the Tribunal to a misunderstanding of the nature or limits of its statutory function.
(3)The misconstruction of a policy document which has some legal effect may involve an incorrect conclusion about the legal effect of the document.
(4)A plain misreading of a policy document may be wholly unsupported by the material before the Tribunal, so as to constitute a finding of fact in the absence of evidence. [20]
[20] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 [198].
The tribunal was in the position of the local government. In considering the development application, the tribunal was to have due regard to the Policy for the Wembley Precinct, including the Statement of Intent for the Local Centre, 'to the extent that, in the opinion of [the tribunal], those matters are relevant to the development'.[21]
[21] Planning and Development (Local Planning Schemes) Regulations sch 2, cl 67.
In general, planning schemes should be construed broadly rather than pedantically and with a sensible practical approach.[22] This does not mean that different rules of construction apply. But a relevant aspect of the context in which the text is to be considered is that the words were not drafted by a Parliamentary draftsperson: 'The reasonable reader … must appreciate that the drafting of that document can give rise to a greater likelihood of infelicities in the language used than might occur in an Act of Parliament'.[23]
[22] Re Shire of Mundaring; ex parte Solomon [2007] WASCA 132 [25].
[23] Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259 [37].
The other important feature of the relevant planning instruments is that while parts of them may be prescriptive, other parts are guides to the exercise of discretion.
Ground 1.1
The appellant submitted that, properly interpreted, the first bullet point of the statement of intent for the Local Zone did not apply to the proposed development. In the alternative, the appellant submitted that the tribunal erroneously interpreted and applied the statement of intent.
In support of ground 1.1, the appellant first submitted that the statement of intent did not apply at all to a new development that was not part of the existing range of local shopping and community facilities. It submitted that the intent of the first bullet-point could not be to limit any new or proposed uses within the Local Centre zone in the Wembley Precinct to the existing range of local shopping and community facilities. To apply the Policy in that way would be inconsistent with the Zoning Table of LPS 1, under which a wide range of uses, other than the existing range of local shopping and community facilities, are able to be permitted within the Local Centre zone.
The appellant further submitted that, while the second and third bullet points referred to new developments and proposed uses, the first bullet point did not. The appellant submitted that the conclusion follows that the first bullet point only applies to existing uses.
I do not accept that argument. To the extent that, in its opinion, the Policy was relevant to the proposed development, the tribunal was required to have due regard to it. That, in my opinion, includes the whole of the Policy, including the three points in the statement of intent for land zoned Local Centre which lies in the Wembley Precinct. The tribunal described the Policy as an initial relevant consideration, intended to guide the exercise of its discretion.
It is correct that the Policy cannot be inconsistent with the Scheme and where any inconsistency arises, the Scheme prevails.[24] But there is no question that the tribunal construed the Policy as operating to limit permissible uses to the 'existing range' of uses or sought to apply the Policy in that way.
[24] LPS 1, cl 48(8).
The second part of the appellant's argument on ground 1.1 was that there are several uses that are 'A' or 'D' uses in the Local Centre zone that are not limited to those that serve the day to day needs of local residents. In applying the Policy in the manner in which it did, the tribunal construed the statement of intent as imposing a requirement to be met for any new use to be acceptable or appropriate in that zone.
The respondent submitted, correctly, that the court should have regard to the overall sense and import of the reasons, read as a whole and without an eye attuned to the detection of error. But I am satisfied that the tribunal applied the statement of intent as imposing a requirement that the development must meet. It is not simply that the tribunal referred to the 'day to day use' as a requirement, rather than a factor relevant to the proper exercise of discretion, in relation to both the car wash (which it found met the requirement) and the mechanical workshop (which did not). The tribunal relied exclusively on that 'requirement' in support of its finding that the mechanical workshop component of the development was not an appropriate use on the premises.
The statement of intent cannot, in my opinion, be construed as imposing such a requirement on a new development. To apply it in that way is not consistent with its text, nor its apparent purpose. I am satisfied that the decision discloses a serious misunderstanding of the Policy.
I would grant leave and allow the appeal on ground 1.1.
It is, in my opinion, unnecessary to determine the alternative arguments which were based on the requirement of 'day to day needs' in the statement of intent being applicable.
The application for development approval should be remitted to the tribunal for reconsideration.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson15 OCTOBER 2019
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