Werner and Shire Of Nannup
[2007] WASAT 148
•11 JUNE 2007
WERNER and SHIRE OF NANNUP [2007] WASAT 148
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 148 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:277/2006 | 19 JANUARY 2007, WRITTEN SUBMISSIONS 6 MARCH 2007 AND 15 MARCH 2007 | |
| Coram: | MR J JORDAN (MEMBER) | 11/06/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The refusal of the development application is affirmed | ||
| B | |||
| PDF Version |
| Parties: | BERNARD RAYMOND-MARIE WERNER SHIRE OF NANNUP |
Catchwords: | Town planning Development Refusal Restaurant Rural zoned land No frontage to gazetted road Access by easement Right of carriageway over neighbouring properties Length of easement Upgrading standard of carriageway Council draft policy on tourist development Controlling vehicles using easement |
Legislation: | Country Areas Water Supply Act 1947 (WA) Planning and Development Act 2005 (WA), s 252(1) Shire of Nannup Town Planning Scheme No 1 Transfer of Land Act 1893 (WA), Ninth Schedule |
Case References: | Jelbert v Davis [1968] 1 WLR 589 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council [1980] 145 CLR 485 |
Orders | 1. The application for review is dismissed.,2. The refusal of the development application is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WERNER and SHIRE OF NANNUP [2007] WASAT 148 MEMBER : MR J JORDAN (MEMBER) HEARD : 19 JANUARY 2007, WRITTEN SUBMISSIONS 6 MARCH 2007 AND 15 MARCH 2007 DELIVERED : 11 JUNE 2007 FILE NO/S : DR 277 of 2006 BETWEEN : BERNARD RAYMOND-MARIE WERNER
- Applicant
AND
SHIRE OF NANNUP
Respondent
Catchwords:
Town planning Development Refusal Restaurant - Rural zoned land No frontage to gazetted road Access by easement Right of carriageway over neighbouring properties Length of easement Upgrading standard of carriageway Council draft policy on tourist development Controlling vehicles using easement
Legislation:
Country Areas Water Supply Act 1947 (WA)
Planning and Development Act 2005 (WA), s 252(1)
(Page 2)
Shire of Nannup Town Planning Scheme No 1
Transfer of Land Act 1893 (WA), Ninth Sch
Result:
The application for review is dismissed
The refusal of the development application is affirmed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr L Guthridge (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Shire of Nannup
Case(s) referred to in decision(s):
Jelbert v Davis [1968] 1 WLR 589
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council [1980] 145 CLR 485
(Page 3)
Summary of Tribunal's decision
1 Mr Bernard Werner applied to the Tribunal for a review of the Shire of Nannup's refusal to grant planning consent for his proposed restaurant. The restaurant would be on his rural zoned Lot 25 about 5 kilometres from Nannup.
2 The Shire of Nannup refused the application because Lot 25 does not have frontage to a constructed gazetted road. Access to Lot 25 is gained via a right of carriageway in an easement which extends across properties from the edge of the Nannup town site.
3 Mr Werner said that he would only operate the restaurant in the middle of the day between November and May each year, would pay for regular maintenance of the track within the easement and would put up signs to control the types of vehicles that used the access road.
4 The Tribunal considered the length of the access, the topography, the resultant increase in traffic, the shared use of the right of carriageway, the upgrading of the carriageway required and the need to control vehicles using the carriageway. On the evidence presented, the Tribunal decided to dismiss the application.
Introduction
5 These proceedings involve an application brought by Mr Bernard Werner (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for a review of the refusal of the Shire of Nannup (respondent or Shire) to grant planning approval for the development of a restaurant which would also operate as a café at Tanjanerup Lot 25, off Folly Road, Nannup (site).
The site and locality
6 The site has an area of 40.4686 hectares. It is essentially rectangular in shape, approximately 340 metres wide and about 1200 metres long, with an east west orientation. The site is covered with remnant vegetation except for cleared areas extending for about 250 metres from the western boundary. A house, private studio, three sheds, a vegetable garden and vines have been developed in cleared areas.
(Page 4)
7 A portion of the site, extending about 350 metres from the eastern boundary, is within the catchment of Tanjanerup Dam, the water supply source for Nannup.
8 Properties to the north-east and north and a small area to the west are covered with native vegetation. To the north-west land is cleared to pasture and to the south-west is an extensive pine plantation.
9 The site is approximately 5 kilometres to the north-east of the Town of Nannup. Vehicular access to the site is obtained via the benefit of an easement, H 31759, which grants a 12 metre wide right of carriageway over the properties between the site and Dunnet Road at the edge of the Nannup town site. The carriageway from the town is shown on cadastral plans as Folly Road. At a fork about 3 kilometres from the town, Folly Road continues to the east and the site is to the north about 2 kilometres on a road shown as Northside Road. The respondent refers to the site as "off Folly Road".
10 Across the site near the western boundary is easement G 841405. This contains a single lane gravel track. The track enters at the southern boundary and near the northern boundary, forks to the property to the north-west and east to run near the northern boundary of the site providing access to properties to the east and north-east and is shown as Gherardi Road. The easement burdens the site, but benefits the lot to the north and is used by properties to the north-west and east.
11 The roads constructed within the easements are also used by other landowners, which includes farmers, the Forest Products Commission and Water Corporation. In evidence at the hearing the parties agreed that there is no barrier to others gaining access to Folly Road and it was said to be occasionally used by tourists.
Planning framework
12 The site is zoned Rural in the Shire of Nannup's Town Planning Scheme No 1 (TPS 1). The proposed development, described variously as a restaurant and a café, is within the definition of "shop" of TPS 1. Under definitions it states that a shop:
" … means a building wherein goods are kept, exposed or offered for sale by retail, and includes a café and a restaurant and receiving depot, but does not include a bank, fuel depot, market, service station, petrol filling station, milk depot, marine store, timber yard, or land and buildings used for the sale of
(Page 5)
- motor and other vehicles, or for any purpose falling within the definition of 'industry'."
13 A shop is an "AA use" which is not permitted unless the respondent grants approval.
14 The respondent adopted a draft Local Planning Strategy (draft LPS) for final approval on 4 May 2006. The Western Australian Planning Commission is currently assessing the document for recommendation of final approval. The document was advertised for public comment between September and December 2005. The draft LPS contains three parts relevant to the application:
1. part 13, cl 13(10) covers public drinking water source areas;
2. part 17 covers the development of tourism facilities within the Shire of Nannup; and
3. part 22, cl 22(3) covers development of former pine plantation land sold as freehold land by the Department of Conservation of Land Management.
15 The relevant aspects of these parts of the draft LPS are addressed in the discussion on the matter below.
Proposed development
16 Proposed is the development of a restaurant described in the proceedings as also operating as a café, to accommodate a maximum of 40 persons. The sketches show a construction of local stone, timber and iron. The dining area would be 81 square metres, the kitchen and stores 45 square metres. The building and associated car park would be situated on a cleared area in the vicinity of the house and vegetable garden. To the rear of the restaurant would be a separate toilet structure, described as a proprietary brand composting toilet system which would save on water and avoid any effluent disposal to the soil. The applicant said that the restaurant would be open from 1 November to 1 May the following year and every Thursday to Sunday from 11 am to 3 pm.
The refusal
17 The respondent considered the application and resolved as follows:
(Page 6)
- "That Council refuse planning approval for Mr. Bernard Werner for the proposed Restaurant/Café (shop) at Lot 25 (off Folly Road) Nannup as Lot 25 (off Folly Road) does not have frontage to a constructed gazetted road."
The issues
18 Mr Leigh Guthridge, planning officer who appeared on behalf of the respondent, advised that there had initially been concern over the potential environmental impact of the proposed development. The site is located within a public drinking water source area under the Country Areas Water Supply Act 1947 (WA). The respondent filed a plan provided by the Water Corporation which showed that the site was within the Nannup catchment area. The plan also showed the location of Tanjanerup Dam two lots of the south of the site and defined the boundary of the Tanjanerup Dam catchment. The eastern portion of the site to a depth of about 350 metres from the eastern boundary is within the Tanjanerup Dam catchment which supplies the drinking water for Nannup.
19 Mr Guthridge, who is also the environmental health officer for the respondent, conferred with the Department of Environment. From the information he received and having regard to the distance of the development from the dam catchment, the site area of 40 hectares and the loamy-gravel soil, he concluded that on site effluent disposal systems would be appropriate if the development were allowed to proceed. Effluent disposal was therefore not an issue between the parties as it would be the subject of conditions.
20 The issue between the parties was therefore the lack of frontage to a constructed gazetted road access to the site. This was developed at the hearing into the upgrading and maintenance of an adequate carriageway for public access to the restaurant.
Discussion
21 The draft LPS includes Pt 17 "Local Planning Policy Framework - Tourism" which identifies restaurants as one form of tourist development. One of the policy objectives at cl 17.2 is to encourage tourism uses that " … have an appropriate standard of public road access". Clause 17.3 sets out performance criteria and it states:
"All tourist development is to be sited upon a lot having frontage to a gazetted road. Lots with informal access such as a forestry track will not be permitted to be developed for tourist
(Page 7)
- purposes due to the lack of security of long term access and the implications to Council if alternative access is required in the future. Council will be prepared to consider alternative access arrangements across other private land subject to appropriate legal arrangements in the form of an easement or right of carriageway."
22 Clause 17(3) then sets out policies associated with various uses. Under the heading "Restaurant/Tearooms" it states:
"• The preferred location for restaurants and tearooms is within or adjoining the urban centres of the Shire except for the following:
…
- where the restaurant/tearooms will be associated with an established vineyard and/or winery which is producing wines from fruit grown predominantly on the site;
…
• Restaurant/tearooms shall be located on sites with an adequate standard of access to accommodate anticipated traffic volumes generated by the development."
23 Part 22 of the draft LPS is headed "Rationalisation of CALM Land". This section sets out the respondent's position in relation of the Department of Conservation and Land Management (CALM) disposing of freehold lots previously used for plantations. It was not clear whether the site was a former CALM lot, but the reference was made to illustrate the respondent's approach to the development of tourist uses in such circumstances. One policy position is that:
"• Council will only grant Planning Approval for non-rural uses such as tourist or commercial development where the subject land has frontage to a constructed and gazetted public road …
• Where a lot only has access via an un-gazetted forestry track (or the like), Planning Approval for non-rural development will not be issued."
(Page 8)
24 It was Mr Guthridge's submission that the general objective at cl 17.2 and the performance criteria at cl 17.3 are not intended to be inconsistent, but to reflect that the draft LPS on this issue is only a policy and that in certain circumstances it would be prepared to consider alternative access arrangements for tourist developments. The respondent's approach is to consider alternative access arrangements in light of circumstances such as:
"(a) The particular kind of tourist development proposed with particular regard to the level of traffic that is likely to be generated.
(b) The length of the proposed alternative access.
(c) The security of tenure that the proponent has in regard to the alternative access.
(d) The general trafficability of the access."
25 In this regard, Mr Guthridge said that in respect of the proposed development:
"(a) A restaurant use is a use that has the potential to generate a significant amount of traffic, as opposed to a less intensive tourist use such as an art studio.
(b) The proposed alternative access is long, 5-6 [kilometres].
(c) There is reason to question whether the Applicant has secure tenure over the proposed alternative access and/or rights that will enable him to upgrade the access to a suitable standard.
(d) The current state of the proposed alternate access is not considered suitable for the level of traffic that could be generated from the proposed development. The access is only 4-5 [metres] wide and varies considerably in standard and quality. Parts of the access are quite steep and tree branches compromise the site distances at various points along the accessway. There are no traffic safety devices on the accessway to warn drivers of any of the hazards presented."
26 It was Mr Guthridge's view that this combination of factors made the proposed development unsuitable for consideration as a tourist development serviced by an alternative access arrangement.
(Page 9)
27 In the course of considering this matter the respondent sought legal advice. The first advice, a copy of which was filed by the respondent, was from Young and Young, Lawyers and Mediators. This referred to terms it believed were set out in the instrument H 317595 on the deed of grant of the easement.
28 The respondent sought further advice from McLeods Barristers and Solicitors, which was also filed. The Tribunal would comment that it prefers the advice of McLeods in this matter. McLeods identified that the wording referred to as set out in the deed of easement was set out in the deed for the easement G 841405 in which the site was the servient tenement. Easement H 317595, for which the site was one of the dominant tenements and which provides a right of carriageway from the nearest gazetted road, was created by a transfer of land and grants a right of carriageway in the terms of the Ninth Schedule of the Transfer of Land Act 1893 (WA) (Ninth Schedule) over the lots in question.
29 McLeods advised that the standard grant provided for in the Ninth Schedule is as follows:
"Creation of Right of Carriage-way in a Transfer of Freehold Land
Together with full and free right and liberty to and for the transferee hereunder and to and for the registered proprietor or proprietors for the time being of the land hereby transferred or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without animals or vehicles into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated and indicated by a symbol on the said map."
30 In terms of the interpretation of the use allowed to be made of the right of carriageway under the Ninth Schedule, McLeods made reference to the authorities, particularly Australian judgments which followed the view of the English Court of Appeal, in Jelbert v Davis [1968] 1 WLR 589 in which Lord Denning MR (at 595) held:
"A grant in general terms does not authorise an unlimited use of the way … the true proposition is that no one of those entitled to a right of way must use it to an extent which is beyond anything which was contemplated at the time of the grant."
(Page 10)
31 Mr Guthridge adopted advice from McLeods on the intensification of use of the right of way and uncertainty about powers to upgrade it. He said that it was unlikely that the access for a restaurant use on the site could have said to have been reasonably contemplated by the original grant which was for the purpose of access to rural lots. He also restated the advice that the applicant did not specifically have any rights as the owner of Lot 25 to do construction work on the access way. Mr Werner would have rights in regard to maintenance but this would not encompass a right to upgrade the right of way, and the access way would require upgrading to enable a safe passage of a higher density of traffic generated by the restaurant.
32 Mr Guthridge said that it was usually of no interest to the Shire if internal driveways were of any considerable length but the concern here was that other landowners were affected by the carriageway and third parties made use of it. The respondent was therefore concerned that the uncertainty associated with the capacity of the applicant to upgrade the carriageway to an adequate standard and to maintain it at that standard was sufficient to oppose the proposed use. Mr Guthridge argued that the application for review be dismissed.
33 Mr Werner was concerned that the respondent's decision was based on a policy that had not yet been endorsed by the Western Australian Planning Commission, although he then emphasised that part of cl 17.3 of the draft LPS which referred to using a right of carriageway as access to tourist development. He argued that the site has legal right of carriageway and that, as patrons enter the private roads as visitors, they should be of no concern to the respondent. He would continue to maintain the carriageway to a standard that allows patrons to visit the premises.
34 Mr Werner said that he privately arranged for the access road to be graded about twice a year but would increase that to once a month during the five months over summer the restaurant was open. In addition he would post adequate directional signage at Dunnet Road near the town advising "no buses", "small cars at own risk" and when the road was in poor repair after heavy rain "4x4 only" until such time as repairs were carried out.
35 Mr Werner said that liability insurance would be taken out for the length of the access road. Mr Werner stressed that he was a qualified chef and the proposed café restaurant would be associated with an established vineyard and organic vegetable garden and would provide eight new jobs and training for hospitality workers.
(Page 11)
Comment
36 The only element of the proposed development at issue between the parties was vehicle access between the gazetted Dunnet Road at the town and the car park of the restaurant. There was no dispute that if it were not for the concerns about access, the restaurant would be a use consistent with the intent of the respondent's policy of developing tourist uses in the rural area to complement local produce and provide an attraction for visitors.
37 In its draft LPS at cl 17.3 the respondent has stated it would be prepared to consider alternative access arrangements across other private land subject to appropriate legal arrangements in the form of an easement or right of carriageway. That is the form of access in place for the site. The present rule is that a grantee is not confined to using a right of way for a purpose prevailing at the time of the grant, but may use the right of way for any different purpose, and in this instance, a restaurant is contemplated by TPS 1 as a discretionary use. That is not the end of the matter, however, as it is a consideration that a use should not be allowed that would increase traffic beyond that reasonably contemplated for the original use or a use of similar intensity. The respondent raised as a concern, after receiving legal advice, that a restaurant use was an increase in degree that would increase use of the carriageway beyond that reasonably contemplated in the original grant of easement: Jelbert v Davis.
38 Jelbert v Daviswas concerned with agricultural use changing to a large camping park and the concern was the increased burden on the servient tenement. The development applied for in the matter before the Tribunal would be to add to the existing low key rural use a 40 person restaurant for four hours in the middle of the day, four days per week for six months of the year plus the vehicles of staff and service vehicles.
39 No evidence was supplied by either party to support its submissions on traffic, either generated by the proposed use or by the others with rights to use the carriageway. The change is a matter of fact and degree. The change is a fact and in respect of the degree, the Tribunal has formed the view that the proposed development would result in a significant increase in the use of the right of carriageway over and above that existing. It might be argued that, given the nature of the use made of the servient tenements over which the carriageway passed, this increase in use is not of planning consequence, but this argument was not persuasively developed in evidence before the Tribunal.
(Page 12)
40 The Tribunal had the benefit of a view of the access road and the site in the company of both parties travelling in a Commodore sedan. The carriageway can best be described as a minor road suitable for one vehicle with some sections better described as a track. It generally follows the existing topography without significant earthworks when going up and down hills but when going around hills it has been graded into the side to provide a level carriageway. The road is generally formed of the base material that it is passing over. This means that much of the road, except for about a kilometre near the town, is formed of laterite gravel commonly found on country roads. There was clear evidence of water erosion although this was not so severe so as to prevent the vehicle reaching the site.
41 There was raised in discussion at the hearing that subdivision was being contemplated for the property abutting the town site, and that section of Folly Road would be become a gazetted road and be constructed. It was not clear, however, that the adoption of a structure plan, rezoning and then the subdivision associated with this would occur within the next two to three years. Mr Guthridge did not believe that Northside Road, being required for vehicles from the Water Corporation, fire fighters and the Forest Commission, was sufficient to establish it as a road readily available for restaurant patrons. He maintained his position that a gazetted road was required.
42 The Tribunal is of the view that, consistent with the principle established in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council [1980] 145 CLR 485, in circumstances where the only access is over some distance and via a right of carriageway and there is more than one servient lot - and in this matter apparently more than one dominant lot - it is necessary that a development application include consideration of the essential ancillary elements such as the means of access to the use.
43 No evidence was provided on what other lots enjoyed the benefit of the right of carriageway, although comment was made that the carriageway was used by vehicles from land owned by the Water Corporation, the Forest Products Commission, farmers and "lifestyle lot" owners. There was no evidence of any arrangements between the dominant owners of maintenance obligations. The only evidence was that the applicant graded the carriageway at his own expense each year.
44 Mr Guthridge submitted that if the development was to proceed, one of nine recommended conditions should be:
(Page 13)
- "Engage a suitably qualified consulting engineer to produce a report estimating the level and categories of traffic that it is anticipated to be generated by the restaurant development and to identify any upgrading of the carriageway that is necessary to ensure that the access can be safely used for the anticipated traffic, and any ongoing maintenance requirements to adequately maintain the carriageway at the identified standard."
45 Given the topography, it was not clear from the simple viewing of the access that the 12 metre wide easement would be of sufficient width to accommodate the roadworks required. The Tribunal is not convinced a sign would be sufficient to control types of vehicles attracted to the restaurant, particularly in circumstances where the sign would have to be changed depending upon the weather conditions and the timing of the monthly grading the applicant said would occur. The applicant would have to make private arrangements with the other owners for the carriageway to be constructed to an appropriate standard for the anticipated traffic, and while the applicant said there had been no objections to his proposed restaurant development, there was no evidence that other owners had an opportunity to comment on any roadworks that might be required.
46 One further comment that can be made is that the site is subject to the burden of a right of carriageway by an owner to the north and there is no evidence of what that other owner considers will be the impact on the benefit enjoyed of the significant increase in vehicles attracted to the site for six months of the year.
Conclusion
47 The Tribunal accepts that there might be circumstances where a right of carriageway would provide suitable access to a tourist development such as a restaurant, as provided in the respondent's draft LPS.
48 The Tribunal is not persuaded that the right of carriageway necessary in this instance can be supported as an adequate form of access for the restaurant use proposed. The use would increase traffic significantly from that of the low key rural use now in place. It is agreed with the respondent that the increase in traffic requires work to be done on the carriageway and there is not sufficient evidence that the 12 metre wide easement in the topography of the locality over 5 kilometres would be sufficient to accommodate the necessary works. This is also an easement over which other dominant tenements apparently enjoy the benefit of a right of carriageway and there is no evidence of what those others think of
(Page 14)
- the works necessary or how it would affect their rights and obligations in respect of the carriageway. There is recognition of the difficulty of the terrain and a sign is not considered adequate to control the types of vehicles that would use the access, particularly when the sign would have to be changed after rain and at different times in the proposed maintenance schedule.
49 As stated above, the Tribunal considers that the provision of suitable access is a significant incidental element to the proposed development because of the location of the site relative to the nearest gazetted road. There might be a case for supporting a restaurant as proposed if it were clear as to the level of work required to establish and maintain a suitable level of road access. This would need to be supported with evidence of the response of those enjoying both the benefit and burden of the right of carriageway so that rights and obligations were clear in and what is essentially a private arrangement between neighbouring landowners.
50 In this instance the Tribunal finds that it is not able to support the proposed development on the basis of the evidence before it.
Orders
51 The orders of the Tribunal are that:
1. The application for review is dismissed.
2. The refusal of the development application is affirmed.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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