Yujnovich and Town of Port Hedland
[2016] WASAT 19
•1 MARCH 2016
YUJNOVICH and TOWN OF PORT HEDLAND [2016] WASAT 19
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 19 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:225/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS L EDDY (MEMBER) | 1/03/16 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | IVAN YUJNOVICH TOWN OF PORT HEDLAND |
Catchwords: | Town planning Development application Whether application involved a use not permitted in zone Whether use properly characterised within use class 'Transport Zone' Whether any existing nonconforming use right Turns on own facts |
Legislation: | Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004 (WA), s 60(2) Town of Port Hedland Town Planning Scheme No 4, cl 3.2.7, cl 5.2, Sch 2.1, Sch 2.2 Town of Port Hedland Town Planning Scheme No 5 |
Case References: | Galati & Anor and City of Rockingham [2007] WASAT 198 Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 432 Parramatta City Council v Brickworks Limited (1972) 128 CLR 1 Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88 West Coast Enterprise Pty Ltd and Shire of Exmouth [2007] WASAT 316 |
Orders | 1. The application is allowed.,2. The decision of the respondent made on 27 May 2015 to refuse the application for 'extension of non-conforming approval for a transport depot' and workshop addition on the site is set aside and the following decision is substituted.,3. The application for construction of a proposed workshop with vehicle wash down area on the site, as depicted in the amended plan of proposal labelled 2015-A-007-101, is approved subject to the conditions attached to this order.,Attachment A - Conditions of Approval,1. If the development is not substantially commenced within a period of two years from the date of approval, the approval shall lapse and be of no further effect.,2. The office located in the workshop shed shall be incidental to the predominant use of the land, and shall not be used for office activities unrelated thereto.,3. The landowner shall ensure all activities related to the construction of the development (such as, but not limited to, storage of building materials and contractor vehicles) be contained wholly within the lot boundaries.,4. The location of any existing effluent disposal system must be:,(a) identified by an appropriately qualified person; and,(b) shown on a professionally drawn, scaled site plan (including all relevant dimensions and setbacks) submitted to the Town of Port Hedland's Environment Health Services by no later than 30 days after the date of this approval.,5. The landowner shall ensure sediment control barriers are placed and maintained along all boundaries during the construction period to the requirement of the Town of Port Hedland's Manager Development Services.,6. Dust and sand both during and after construction shall be contained on site with the use of suitable dust suppression techniques approved by the Town of Port Hedland.,7. Stormwater disposal is to be designed and constructed in accordance with the Town of Port Hedland's Engineering Services Guidelines, and is to be shown on a plan lodged with the Town for approval prior to the issuing of a building permit.,8. Prior to the issuing of an occupancy permit, accessway/s, parking area/s, turning area/s shall be constructed, kerbed, formed, graded, drained, line marked and finished with a sealed or paved surface by the landowner in accordance with Australian Standard AS 2890 Parts 1 and 2.,9. Prior to the issuing of an occupancy permit, the driveways and the crossover shall be designed and constructed in accordance with Council's Crossover Policy 9/005.,10. The workshop and vehicle wash down area may only be used to service and wash down vehicles used in the course of operations related to the ongoing storage of incomplete buildings on the site. |
Summary | The applicant applied for approval for what he called an extension of nonconforming use of the site as a transport depot. An approval was granted in 1993 to use the site for the temporary storage on the site of incomplete transportable buildings that were brought to site by truck and later taken from the site to another location by truck. The applicant asserted that the 1993 approval was approval to use the site as a transport depot in accordance with the town planning scheme then in existence. Use of the site as a transport depot is not permitted under the current town planning scheme. The application before the Tribunal was for the construction of a workshop on part of the site that would be used, amongst other things, to provide a vehicle washdown area. This proposal was in the context of the continuing operations in relation to the transportable buildings. The Tribunal found that the 1993 approval was an approval for a use that best fit within the use class 'Salvage Yard' under the town planning scheme that then applied, because the predominant aspect of the use was the storage of salvaged buildings. Transport of those buildings to and from site was infrequent and incidental to the predominant storage function. The use approved did not fall within the 'Transport Depot' use class. The current application taken in its context was, in terms of use, a continuation of the predominant storage use of the site and, as such, was allowable. No question of nonconforming use rights arose under the current application. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : YUJNOVICH and TOWN OF PORT HEDLAND [2016] WASAT 19 MEMBER : MS L EDDY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 1 MARCH 2016 FILE NO/S : DR 225 of 2015 BETWEEN : IVAN YUJNOVICH
- Applicant
AND
TOWN OF PORT HEDLAND
Respondent
Catchwords:
Town planning Development application Whether application involved a use not permitted in zone Whether use properly characterised within use class 'Transport Zone' Whether any existing nonconforming use right Turns on own facts
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Town of Port Hedland Town Planning Scheme No 4, cl 3.2.7, cl 5.2, Sch 2.1, Sch 2.2
Town of Port Hedland Town Planning Scheme No 5
Result:
Application allowed
Summary of Tribunal's decision:
The applicant applied for approval for what he called an extension of nonconforming use of the site as a transport depot. An approval was granted in 1993 to use the site for the temporary storage on the site of incomplete transportable buildings that were brought to site by truck and later taken from the site to another location by truck. The applicant asserted that the 1993 approval was approval to use the site as a transport depot in accordance with the town planning scheme then in existence. Use of the site as a transport depot is not permitted under the current town planning scheme. The application before the Tribunal was for the construction of a workshop on part of the site that would be used, amongst other things, to provide a vehicle washdown area. This proposal was in the context of the continuing operations in relation to the transportable buildings. The Tribunal found that the 1993 approval was an approval for a use that best fit within the use class 'Salvage Yard' under the town planning scheme that then applied, because the predominant aspect of the use was the storage of salvaged buildings. Transport of those buildings to and from site was infrequent and incidental to the predominant storage function. The use approved did not fall within the 'Transport Depot' use class. The current application taken in its context was, in terms of use, a continuation of the predominant storage use of the site and, as such, was allowable. No question of nonconforming use rights arose under the current application.
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods
Case(s) referred to in decision(s):
Galati & Anor and City of Rockingham [2007] WASAT 198
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 432
Parramatta City Council v Brickworks Limited (1972) 128 CLR 1
Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88
West Coast Enterprise Pty Ltd and Shire of Exmouth [2007] WASAT 316
Introduction
1 In October 2014, Mr Ivan Yujnovich (applicant) requested planning approval from the Town of Port Hedland (respondent) for 'extension of non-conforming approval for a transport depot' and workshop addition on No 3 (Lot 3) Trig Street, Wedgefield (site). On 27 May 2015, the Council of the respondent refused that application. On 8 July 2015, the applicant lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the respondent's decision. The matter was originally listed for an oral hearing but by consent the parties applied to vacate that hearing and have the matter determined entirely on the documents, pursuant to s 60(2) of the State Administrative Tribunal Act (WA). Orders were made to that effect on 23 November 2015. In addition, leave was given to the applicant to amend his proposal in accordance with an amended plan of the proposed transport depot. The documents before the Tribunal, on which the matter is to be determined, are as follows:
1) Application for review lodged on 8 July 2015.
2) Respondent's statement of issues, facts and contentions dated 23 September 2015.
3) Respondent's s 24 bundle of documents dated 23 September 2015.
4) Applicant's statement of issues, facts and contentions dated 12 October 2015.
5) Witness statement of Mr Adam Majid dated 22 October 2015.
6) Witness statement of Mr John Yujnovich dated 23 October 2015.
7) Witness statement of Mr Gregory Joseph John Comiskey dated 26 October 2015.
8) Respondent's supplementary s 24 bundle of documents dated 29 October 2015.
9) Respondent's draft without prejudice conditions dated 10 November 2015.
10) Applicant's response to draft without prejudice conditions dated 11 November 2015.
11) Statement of agreed facts dated 24 November 2015.
12) Applicant's outline of submissions dated 4 December 2015.
13) Respondent's submissions dated 4 December 2015.
14) Respondent's reply to applicant's outline of submissions dated 11 December 2015.
15) Applicant's further submission in reply to the respondent's submissions dated 11 December 2015.
16) Amended plan of proposed transport depot labelled 2015-A-007-101.
Background facts and previous planning approvals
2 The applicant, under the name WA Jinker Services, has operated a business from the site since 1985. A 'jinker' is a trailer system used to transfer complete and incomplete buildings via multi truck couplings on long wide loads. The operations of WA Jinker Services included the transport of existing buildings, whether damaged or undamaged, to the site. The buildings are either owned by the applicant or owned by a third party who has contracted with the applicant to transport the goods. The buildings are then stored on site until they are sold or relocated to the new or existing owner's premises. Additionally, WA Jinker Services equipment and trucks have been stored on the site as required.
3 On 20 December 1992, 'WA Jinker Servicing [sic]' submitted an application for planning approval to the respondent with respect to the site (initial application). On the initial application, where it requires the applicant to state the type of building proposed, or to describe briefly the proposed development, the applicant has written 'storage of buildings approx. 12 months temporary'. In early 1993, the respondent granted the requested planning approval. The approval notice relevantly stated:
Council's Planning Consent to the proposed development, described on the application dated 18 December 1992 and the accompanying plans, is GRANTED subject to the following conditions:
1. That a pre cyclone inspection is called for and that all buildings are inspected.
2. That each building is securely tied down immediately it is placed on site between 1 November to 30 April. The building must be stored and secured to manufacturer[']s recommendation. That Structural Engineer's certificate [is] submitted for each type of building showing footing and tiedown sizes and positions. Engineer[']s calculations must be submitted.
3. That Council be notified for each individual building being placed on site during cyclone season within three days.
4. That no building is used for any other purposes than storing on site.
5. That only complete and undamaged buildings are stored in the open ground and all openings are to be protected.
6. The Planning Consent is valued for a period of 2 years. If development is not completed within this period, a fresh approval must be obtained before commencing or continuing with development.
4 At this time, the relevant planning scheme in place was the Town of Port Hedland Town Planning Scheme No 4 (TPS 4). Under TPS 4, the site was zoned Industry 2.
5 Pursuant to cl 3.2.7 of TPS 4, if the use of land for a particular purpose is not specifically referred to in the zoning table and cannot reasonably be determined as falling within the interpretation of one of the use classes shown, the Council could either determine that the use is not consistent with the objectives and purposes of the particular zone and therefore is not permitted, or, by absolute majority, that the proposed use is consistent with the objectives and purposes of the zones, and thereafter follow the procedures in cl 5.2 of TPS 4 in considering an application for planning consent.
6 The approval notice in relation to the initial application is signed by the respondent's Principal Building Surveyor. Presumably because of this, the parties agreed that the approval was granted under delegated authority. There is no document in relation to the decision on the initial application, other than the approval notice, included in the documents before the Tribunal. On the respondent's website, minutes of Council meetings are available only from 2011 onwards. It is not clear whether any search has been made to ascertain whether there are any minutes from Council meetings from 1993 and, if so, whether the initial application was reported in any such minutes. The Tribunal notes that the templates for notice of decisions in relation to development applications in Sch 2.1 and Sch 2.2 of TPS 4 contemplate the notice being signed by a Shire clerk. In that context, the Tribunal does not have before it sufficient information to determine who made the decision in relation to the initial application. It is only possible to ascertain the title of the person who signed the notice of that decision.
7 Assuming the initial application was determined by the respondent's delegate, having regard to cl 3.2.7 of TPS 4, an approval by a delegate could only have been given if the proposed use was considered to be one of the use classes permissible in the Industry 2 zone.
8 Of the permissible use classes listed for the Industry 2 zone in TPS 4, the parties consider the relevantly applicable use class was either 'Salvage Yard' or 'Transport Depot'.
9 Subsequently, the applicant also obtained planning approvals in relation to the site:
a) in 2000, for a 'caretakers dwelling';
b) in 2009, for 'showroom, warehouse and incidental offices';
c) in 2011, for 'warehouse and incidental office';
d) in 2012, for 'storage facility/depot/laydown area - storage of complete, incomplete and damaged buildings; and
e) in 2013, for 'retrospective warehouse, shed and incidental office'.
On 31 August 2001, the Town of Port Hedland Town Planning Scheme No 5 (TPS 5) was gazetted and TPS 4 was revoked. Under TPS 5, the site is within the Industry zone. Pursuant to the zoning table in TPS 5, within the Industry zone, the use class 'Storage Facility/Depot/Laydown Area' is an 'AA' use, meaning that development is not permitted unless the Council has granted planning approval. The use class 'Transport Depot' is not permitted in the Industry zone.
Issues
10 The applicant says that issues for consideration are:
1) Was the approval of the initial application an approval to carry out a 'Transport Depot' use on the site?
2) Does the applicant hold a non-conforming use right to carry out 'Transport Depot' use of the site?
3) Is the current development application capable of being characterised as an extension to a non-conforming 'Transport Depot' use?
4) Should an extension to non-conforming use be approved?
5) If the answer to any of the above is negative, should the development application be approved on any other basis?
11 The respondent asserts that the current development application does not require any consideration of the existence or otherwise of any non-conforming use, as it is capable of approval when the individual aspects of the proposal are considered. The respondent asserts that, despite the label applied to it, the current development application does not fall within the 'Transport Depot' use class. In the alternative, the respondent says that the initial application best fits within the use class 'Salvage Yard' as defined in TPS 4. Therefore the applicant has no existing non-conforming use rights to use the site as a 'Transport Depot'.
12 The Tribunal considers that the appropriate starting point is to identify what is involved in the current development application and whether it is capable of approval under TPS 5.
Current proposal
13 The application for planning approval that was lodged by the applicant with the respondent, which was attached to the application for review currently before the Tribunal, described the approval sought as 'retrospective approval for a transport depot'. This was apparently accompanied by a report prepared by the applicant's planning consultants dated October 2014 (2014 report). Another report by the planning consultants dated March 2015 (2015 report) was also lodged with the respondent in support of the current application.
14 The 2014 report is titled 'proposed transport depot - extension of non-conforming use'.
15 The 2015 report is titled 'proposed modification to lawful existing use - storage facility/depot/laydown area and transport depot'. In both reports, the development application is described in the introduction as 'extension of non-conforming use – transport depot'. The detail of the proposed development is described in both reports essentially as follows:
• to reconfigure and upgrade the overall operations by removal of a number of existing buildings;
• to identify a designated 'storage/laydown area' for storage and laydown; and
• construction of a workshop along the inner eastern boundary of the subject site. The workshop will comprise two 40 foot sea containers and a purpose built 12 metre by 12 metre dome shelter spanning between them. The workshop area will also be used as a vehicle wash down bay. It will have a trafficable concrete floor with a 1% fall to the rear to enable the capture of potentially contaminated water.
16 The 2014 report states that the applicant has two trucks which are used to transfer the incomplete buildings to and from the site. The plan of proposed development annexed to both reports is the same and it indicates:
• an existing workshop shed and office building on the site together with a number of parking bays (2.7 metres by 5.5 metres in dimension);
• the existing driveway that transverses the site from Trig Street at one end to Pinga Street at the other end;
• the proposed 'workshed'; and
• an area identified as 'storage laydown area salvage yard for transportables'.
17 The area identified as the storage laydown area on the plan is located in essentially the same part of the site as is currently used by the applicant to store approximately 19 incomplete buildings. There is no area specifically identified for the parking of trucks.
18 The amended plan of proposed development relied upon by the applicant in these proceedings is identical to the plan annexed to the consultant's reports, except that it does not identify any area as a storage and/or laydown area. That aspect of the description of the proposed development in the 2014 report and the 2015 report is therefore no longer applicable.
19 Thus, the development proposed is the construction of a workshop that will be used to provide a vehicle wash down area. Other uses of the workshop are implied but are not identified or described. No change to the use of the site (other than use of the new workshop, if that is a change in use) is applied for.
20 The respondent submits that, given that the applicant is not proposing to change the existing use of the site and the development application involves only the construction of a new workshop, the application is capable of being approved. Any such approval would not, the respondent says, be approval for use, or extension of use, as a transport depot. The use aspect of the application is really an application to allow that part of the site to be used for 'motor vehicle and/or marine repair'. The respondent submits that this use class is 'AA' in the Industry zone according to TPS 5, and so is not permitted unless the Council has granted planning approval (this appears to be a mistake, as this is identified as a 'P' use in the Industry zone, but nothing turns on this). On that basis, the respondent submits that the proposed development can be approved and does not require consideration of any non-conforming use rights.
21 The applicant submits that the current development proposal cannot be considered in isolation. It must be considered as part of the ongoing overall use of the site for the operations of WA Jinker Services.
22 Where there is an issue of multiple uses on a site, whether those uses must be considered separately, as a combined and consequently different use, or as one dominant and one ancillary or incidental use is a question of fact and degree in each case: see West Coast Enterprise Pty Ltd and Shire of Exmouth [2007] WASAT 316 at [39] - [41]; Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 432 at [52] - [56]. In this case, the Tribunal is satisfied that the use aspect of the current proposal is ancillary and does not require consideration as a distinct and separate use.
23 The applicant put forward the current proposal on the basis that it is proposed that there be an addition or extension to part of the existing use of the site and there is no suggestion that the proposed workshop is to be used outside of that context. The applicant does not seek to obtain permission to construct and use a workshop for vehicle wash down and vehicle maintenance or repair at large. His application seeks only to do those things in relation to the vehicles he uses to carry out the WA Jinker Services operations. The applicant only has two trucks that are used for the WA Jinker Services operations. The use of these vehicles in the course of bringing incomplete buildings to, or from, site, in the context of the long periods of storage of incomplete buildings on site (in the initial application contemplated as approximately 12 months), can only be described as sporadic. The workshop and vehicle wash down area is plainly intended to be used only in a very limited, incidental, way.
The 1993 approval of the initial application
24 The law in relation to the characterisation of a non-conforming/existing use involves a different approach to that which must be taken when determining the land use classification of a current development application: Galati & Anor and City of Rockingham [2007] WASAT 198 at [28] - [31]. The liberal approach taken to the determination of the scope of protection afforded by a non-conforming/existing use right arises from the fact that the existing right is preserved by the relevant principles: Parramatta City Council v Brickworks Limited (1972) 128 CLR 1 at 25. However, in this case, it is first necessary to construe the approval of the initial application in order to determine whether any non-conforming/existing use right exists before turning to consideration of the scope of any such right. The principles relating to the construction of planning approvals are conveniently summarised in Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88 at [13] - [19] and it is not necessary here to repeat them.
25 The applicant submits that the use of the site, when approved in 1993, amounted to use of the site as a transport depot under TPS 4. He asserts that, as that use is no longer permissible in the industry zone, the current application is an extension of an existing non-conforming use.
26 The definition of 'transport depot' in TPS 4 was:
Any land and buildings used for the garaging of motor vehicles used or intended to be used for carrying goods or persons for hire or reward or for any consideration, or for the transfer of goods or persons from one such motor vehicle to another of such motor vehicles and includes maintenance, management and repair of vehicles used, but not of other vehicles.
27 The applicant submits that the definition of 'transport depot' in TPS 4 includes two aspects which are disjunctive. Use will be within the transport depot class if it concerns garaging of motor vehicles used or intended to be used for carrying goods or persons, etcetera, or if it concerns the transfer of goods from one motor vehicle to another. Either aspect may also include the maintenance, management and repair of the vehicles used for that purpose. This is plainly correct.
28 The applicant relies on the second aspect – that is, transfer from one motor vehicle to another - in its submission that the 1993 approval was for use of the site as a transport depot. This submission cannot be accepted.
29 Although the incomplete buildings are brought to the site by a vehicle and eventually taken from site by a vehicle, there is no 'transfer' of the buildings from one vehicle to another within the ordinary sense of that word, as it was always intended that there would be a considerable period of storage at the site in between those two vehicle trips. In any event, given that the applicant apparently only owns two trucks, it might well be the same truck that brings the building to the site and later takes it away. Even without the intervening storage period from one truck to another truck, there may be no transfer involved.
30 The initial application was described in terms of storage of incomplete buildings, contemplating that storage would occur for up to approximately 12 months. The bringing and removing of those buildings was to occur by use of trucks and jinker, but the focus of the application, and the conditions of approval, was plainly on the use of the site for storage of buildings and not on the vehicles involved.
31 The Tribunal is not satisfied that the use of the site approved in 1993 fell within the 'Transport Depot' use class as defined in TPS 4.
32 The respondent submits that the use approved in the 1993 approval of the initial application fits within the use class 'Salvage Yard' as defined in TPS 4, which was:
Land and buildings used for the storage and sale of materials salvaged from the erection, demolition, dismantling or renovating of, or fire or flood damage to structures including (but without limiting the generality of the foregoing) buildings, machinery, vehicles and boats.
33 As stated above, it is clear that the focus of the initial application, and of the actual use of the site for the operations of WA Jinker Services, is the storage of incomplete buildings on the site. The incomplete buildings brought to the site for storage were existing buildings that are dismantled in order to be brought to the site: reasons for decision in PH 3715/08 at tab 3 of the respondent's s 24 bundle of documents, and witness statement of Mr John Yujnovich dated 23 October 2015. While not all buildings were bought and sold by the applicant (some were apparently owned at all times by third parties), the Tribunal is satisfied that the use of the site proposed in the initial application best fits within the 'Salvage Yard' use class in TPS 4.
34 The Tribunal is satisfied that the operations of WA Jinker Services conducted on the site were, and are, focused on storage. Vehicle transport, and any need to maintain and/or to wash vehicles used for that transport, are plainly incidental to that use.
35 The conditions of approval of the initial application, being focused on issues relating to the storage of incomplete buildings on site and entirely lacking in any conditions that might be expected to accompany approval of a transport depot, indicate that the initial application was, in fact, dealt with as a 'salvage yard' at the time of approval. This is not a decisive factor but is consistent with the objective assessment by the Tribunal that the initial application best fits in the 'Salvage Yard' use class under TPS 4.
Conclusion
36 The proposed construction of the workshop and use of it as a vehicle wash down area as part of the applicant's WA Jinker Services operations is permitted under TPS 5. Despite the way that the application for development approval has been described by the applicant and his representatives, there is no question that the current proposal involves extension of any non-conforming use of the site. The approval of the initial application in 1993 did not involve approval of use of the site as a 'transport depot' within the meaning of TPS 4. Rather, it involved approval of use of the site as a 'salvage yard'.
37 Although the proposed development is permissible under TPS 5, the respondent's Council refused the application on the basis that it was labelled as an extension of a non-conforming use of the site as a transport depot. In its submissions, the respondent asserts that it has no objection to approving the application without this misleading label.
Conditions of approval
38 The applicant does not object to the respondent's draft without prejudice conditions 2, 3, 9, 10, 11, 12, 14, 16 and 17. He objects to proposed conditions 4 and 5 on the basis that the car parking bays depicted in the plan are the subject of existing approval and are not part of the application. This objection is accepted by the Tribunal.
39 Proposed condition 6 restricts access to the property to vehicles with a maximum length of 6 metres without further approval from the respondent. The applicant objects on the basis that this is unreasonable. The application proposes use of the workshop and wash down area only by the two trucks used by the applicant, and perhaps the jinker trailers, that have been identified as being used as part of the ongoing use of the site in accordance with the approval of the initial application. There is no evidence to suggest that access to and from the site by these vehicles has, or will, require construction of any improved crossover into the site. This condition should be replaced with a condition that the workshop and vehicle wash down area may only be used to service and wash down vehicles used in the course of operations related to the ongoing storage of incomplete buildings on the site.
40 Proposed conditions 7, 8, 13 and 15 are objected to by the applicant on the basis that they are not required because of, and do not have any sufficient nexus with, the proposed development. These objections are accepted by the Tribunal.
Orders
41 Accordingly, the Tribunal makes the following orders:
1. The application is allowed.
2. The decision of the respondent made on 27 May 2015 to refuse the application for 'extension of non-conforming approval for a transport depot' and workshop addition on the site is set aside and the following decision is substituted.
3. The application for construction of a proposed workshop with vehicle wash down area on the site, as depicted in the amended plan of proposal labelled 2015-A-007-101, is approved subject to the conditions attached to this order.
Attachment A – Conditions of Approval
1. If the development is not substantially commenced within a period of two years from the date of approval, the approval shall lapse and be of no further effect.
2. The office located in the workshop shed shall be incidental to the predominant use of the land, and shall not be used for office activities unrelated thereto.
3. The landowner shall ensure all activities related to the construction of the development (such as, but not limited to, storage of building materials and contractor vehicles) be contained wholly within the lot boundaries.
4. The location of any existing effluent disposal system must be:
a) identified by an appropriately qualified person; and
b) shown on a professionally drawn, scaled site plan (including all relevant dimensions and setbacks) submitted to the Town of Port Hedland's Environment Health Services by no later than 30 days after the date of this approval.
5. The landowner shall ensure sediment control barriers are placed and maintained along all boundaries during the construction period to the requirement of the Town of Port Hedland's Manager Development Services.
6. Dust and sand both during and after construction shall be contained on site with the use of suitable dust suppression techniques approved by the Town of Port Hedland.
7. Stormwater disposal is to be designed and constructed in accordance with the Town of Port Hedland's Engineering Services Guidelines, and is to be shown on a plan lodged with the Town for approval prior to the issuing of a building permit.
8. Prior to the issuing of an occupancy permit, accessway/s, parking area/s, turning area/s shall be constructed, kerbed, formed, graded, drained, line marked and finished with a sealed or paved surface by the landowner in accordance with Australian Standard AS 2890 Parts 1 and 2.
9. Prior to the issuing of an occupancy permit, the driveways and the crossover shall be designed and constructed in accordance with Council's Crossover Policy 9/005.
10. The workshop and vehicle wash down area may only be used to service and wash down vehicles used in the course of operations related to the ongoing storage of incomplete buildings on the site.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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