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[2012] WASC 423
Supreme Court of WA
2012-11-14
Heenan J
Original judgment source is linked above.
7 The grounds of appeal relied on by the appellant are:
(a) it was not in dispute that the vehicles have been or were parked on the subject land from time to time (transcript at page 3 paragraph 3); and
(b) the vehicles in question fell within the definition of 'Commercial Vehicles' within the Scheme (Transcript at page 4 paragraph 2 attached)
that the Member erred in law in not finding that the land use fell within the definition of Commercial Vehicle Parking.
8 In the course of these appeal proceedings and at the hearing of the appeal the City of Armadale was represented by its solicitors and counsel but Mr and Mrs Chapman conducted the proceedings on their own behalf and appeared at the hearing in person.
9 Orders and directions have been made for the filing and exchange of written outlines of submission, a chronology, any authorities to be relied upon and legislation. These have given rise to a number of controversies and skirmishes between the parties of a procedural nature but none of these has any bearing on the issues which have been raised for determination on this appeal or upon their resolution.
10 In view of the findings of SAT and the grounds of appeal, it is necessary to set out the precise form and terms of the Direction which was given by the respondent and which, by the order of SAT, was set aside. This is as follows:
WRITTEN DIRECTION
Issued by
CITY OF ARMADALE
of
7 Orchard Avenue, Armadale
under
SECTION 214(2) and (3) of the Planning and Development Act
2005
TO: Mr. Allan Thomas Chapman and
Ms. Donnal Rosetta Joy Hainsworth
79 Wallangarra Drive
BEDFORDALE WA 6112
BACKGROUND
(a) all sea containers;
(b) all commercial vehicles, whether licensed or unlicensed including Isuzu truck registration number 1BYK256, Ford tip truck registration number 1BAB118 and orange bobcat;
11 Although it is not the subject of challenge in this appeal, it is useful to identify the reasons why the location of the sea container on the respondent's land required permission under the City of Armadale Town Planning Scheme No 4. At [17] and [18] the learned member of the SAT said:
In short, so far as the sea container is concerned, the placement of such a structure in the circumstances we are here considering, amounts to development or use of the land which requires planning approval either from the City or, on review, from this Tribunal. A long series of cases in this Tribunal, and the previous Town Planning Appeal Tribunal, dealing with sea containers, have established that proposition.
Those cases include Defendi v Shire of Mundaring [2004] WAPTAT 124 (Defendi); Murray v Shire of SerpentineJarrahdale [2006] WASAT 258 (Murray) and Twyman v City of Canning [2009] WASAT 146 (Twyman). Twyman was an extempore decision where the applicant was assumed to have been caught by the Town Planning Scheme. See also Evans v Shire of Roebourne [2010] WASAT 93 (Evans), where sea containers were caught by the relevant Scheme provisions.
12 Turning then to the question of whether or not the respondents had infringed the terms of the Scheme by parking commercial vehicles on their property without permission, the learned member referred to the definition of a 'commercial vehicle' in Schedule 1 of the scheme and then went on to observe:
[23] I assume, without deciding, that the vehicles expressly identified in the Direction fall within the definition class of defined commercial vehicles. However, the expression 'commercial vehicle parking' is not expressly defined in the Scheme except to the extent that cl 5B.4.5, and the definition of commercial vehicle taken together, suggest such a definition by implication
[24] I turn now to the specific case. Generally speaking, every activity regulated by a Town Planning Scheme needs to operate in relation to specific facts for the enforcement of any legal rule. Here the applicants assert, and the respondent City has not countered otherwise, that the identified vehicles are being used for domestic purposes; namely, there is a personal Isuzu vehicle, registration number 1BYK-256, being used for carrying mainly licensed quad bikes to riding areas and for general household vehicles.
[25] The other specified vehicle, the Ford, registration number 1BAB118 and I mention that both of these vehicles are mentioned in the Direction is a vehicle on hire, or was on hire, in relation to the clearance of rocks in the yard. It also carried the bobcat which is mentioned on the notice. None of these assertions, I repeat, have been the subject of any contradictory evidence, indeed, even an assertion that the statements are not or were not substantially true or correct.
[26] In fact, they seem perfectly normal explanations for standard domestic activities in rural living areas. They indicate domestic, not commercial, rural living activities and purposes. Whatever the precise scope of commercial vehicle parking sought to be regulated by TPS 4 in rural living areas, it seems unlikely that normal domestic and temporary activities of the type indicated by the applicants were contemplated for planning control purposes. Applying a purposive test to the interpretation of the Scheme's provisions would arrive at the same result.
[27] In any event, the usual attitude to such matters is, I think, indicated by the approach found in Godenzie v City of GeraldtonGreenough [2010] WASAT 107 (Godenzie) at [41]. There, the Tribunal noted that the respondent, the City of GeraldtonGreenough, had accepted that, subject to conditions, it was reasonable in the ruralresidential zone that a resident be allowed to drive a commercial vehicle home, park it and then depart in the vehicle to go to work elsewhere. In Godenzie the applicants ultimately failed because they had gone beyond that concession. But that was a reasonable if not the usual position or starting point, I would have thought, adopted by most local governments.
[28] Thus, I would set aside so much of the Direction which deals with the alleged parking of commercial vehicles.
13 The learned chairman's reasons for concluding that the Direction could not or should not be severed are to be found in [4] and [28] of the reasons. In the latter paragraph the learned member wrote:
However, I do not think that severance of the Direction is possible in this case and although a Direction could be issued in respect of the sea container, the admixture of both items in the one notice, in my view, probably wholly invalidates the Direction and, in any case, warrants the setting aside of it.
14 The appellant submits that the Direction notice issued was valid and effective with respect to the identified commercial vehicles alleged to have been parked on the land without permission. According to the appellant, the power to establish a Town Planning Scheme dealing with such activities derives from the concept of 'development' as used in the Planning and Development Act where, in s 4, that term is defined as follows:
development means the development or use of any land, including
(a) any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b) the carrying out on the land of any excavation or other works;
(c) in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, any act or thing that -
(i) is likely to change the character of that place or the external appearance of any building; or
(ii) would constitute an irreversible alteration of the fabric of any building;
15 Further, the appellant submits that the parking of commercial vehicles on the property constitutes a 'use' type of development rather than a 'built' type of development. There was, however, no attack made against the validity of the Scheme of any part of it.
16 The appellant submits that the learned member of SAT was in error in finding that there was no express definition of 'commercial vehicle parking' within Scheme No 4. It points to sch 1, Dictionary of Defined Words and Expressions, cl 2, which deals with 'land use definitions' to which cl 1.7 of the Scheme gives effect, which includes the following definition:
'Commercial vehicle parking' means premises used for the parking or garaging of a commercial vehicle.
17 That definition needs to be read in conjunction with a general definition of a commercial vehicle found in sch 1 cl 1, which is as follows:
'Commercial vehicle' means a licensed or unlicensed vehicle (including any trailer or attachment' whether in a serviceable condition or not, used, designed or intended to be used in the course of trade or commerce and includes vehicles described in the First Schedule to the Road Traffic Act 1974, but does not include a caravan, farm tractor, motor car, motor carrier, motor cycle, station sedan, station wagon or utility;
18 The submission for the appellant is that if this definition of 'commercial vehicle parking' had not been overlooked by the learned member, then on the facts established there could have only been a finding that the parking of these three vehicles on the property constituted commercial vehicle parking and, further, that it was common ground that this was being done without the consent of the appellant. The appellant submits that there was no issue raised before the SAT as to whether or not any of these vehicles was a commercial vehicle and the only question was whether or not their presence on the land constituted 'commercial vehicle parking'. Because there had been no oral hearing of the application it had not appeared to the appellant that the question of the definition of 'commercial vehicle parking' was being contested and, accordingly, the definition of that activity was not expressly brought to the attention of the learned member in any written submissions.
19 The appellant's second ground proceeds on the basis that there was no dispute that the three vehicles had been or were parked on the subject land from time to time and that each was a commercial vehicle within the meaning of the definition of that term in the Scheme. It refers to admissions or concessions by the appellants to that effect in the transcript at page 3 par 3 and page 4 par 2 to establish those concessions or admissions. Indeed, the learned member assumed without deciding that the three vehicles were within the definition class of 'defined commercial vehicle' [23]. This is evident further from the terms of the learned member's reasons at [24] [25] (set out above) where it appears that the two identified vehicles, the Isuzu truck and the Ford, each had registration or licence plates but that they were being used for domestic activities in rural living areas rather than for commercial purposes.
20 The appellant refers to passages in the respondents' submissions filed in the SAT on 28 April 2011, which include the paragraph:
As AR previously mentioned, our secured Isuzu dual cab 3.2 cal Truck for registration purposes only is a 'commercial' vehicle. Due to its configuration, owners of this type of vehicle have no other option than to register them as a commercial vehicle regardless of the intended use. However, LFE purchased this vehicle solely for domestic and recreational purposes. The Isuzu had never been used as a means to generate income. Therefore AR strongly disagree with the respondent's view that it is a 'commercial' vehicle in that sense. This vehicle was also not the vehicle which was the subject of the original complaint, it was a semi-trailer that was parked on our property whilst the owner was in hospital recovering from a stroke ...
21 The appellant also submits that the Isuzu truck is registered or licensed under the Road Traffic Act as a commercial vehicle but submits that even if this were not so, it is a vehicle designed or intended to be used in the course of trade or commerce and so comes within the definition of 'commercial vehicle' in the Scheme. The nub of the appellant's contention is that the purpose for which the owners or ratepayers use the vehicles or intend to use them when parked on the land is not a determinative factor. Even if the vehicles or any one of them was to be used for 'private' purposes, that would not, in the appellant's submission, alter the objective characterisation of the vehicle as a 'commercial vehicle' deriving from its licensed status or the character or status it would have if it were licensed, and the nature and design of the vehicle itself. So, a truck which qualifies as a commercial vehicle, if parked or left on such a property and never used or even licensed, would still be a commercial vehicle requiring permission under the Scheme because of its objective design, general common use and character.
22 The appellant submits that the case of Godenzie and City of GeraldtonGreenough [2010] WASAT 107 is distinguishable from the situation presently under examination and does not support any proposition that the parking of commercial vehicles used only for domestic purposes is outside the scope of planning control under the Scheme as it applies in a rural living zone. The fundamental distinction between the Godenzie case and the present is that in the former, conditional development approval for the use of the subject land was granted by the local municipality for the parking of five commercial vehicles. In the submission of the appellant, the Godenzie case involved consideration of whether or not the use of those vehicles on the land complied with the conditions which had been imposed by the municipality in its development approval. The decision was that it did not. In the present case, no current approval of any kind existed for the use by the respondents of their land for the parking of these vehicles. Accordingly, I accept the submission of the appellant that the decision in Godenzie is not authority for any proposition that commercial vehicles, if parked on premises for private use, are outside the scope of the Scheme. Indeed, in Godenzie there was no doubt that the vehicles parked on the subject land were commercial vehicles and were being used for commercial purposes. The real question in Godenzie was whether or not loading and unloading of the trucks or trailers, which were the commercial vehicles being parked on the depot on that land, constituted an activity outside the scope of the conditional approval granted for the parking of the vehicles on the land. It was held that it did. Nothing in that case deals with the question of whether or not the mere parking of commercial vehicles on land subject to such a scheme, but not actually involved in commercial activity, are subject to the Scheme.
23 The appellant submits that it is noteworthy that at previous times the respondents had obtained consents from the City of Armadale for the parking of these or similar vehicles on the land but those consents had expired. However, that history does not take the matter very far because it does no more than raise the question of whether or not such use of such vehicles on the subject land does fall within the requirements for consent under this Scheme or not. That is the essential question for present determination.
24 By this ground the appellant challenges the finding of the SAT that the parking of commercial vehicles for normal domestic and temporary activities of the type described by the respondents was not controlled or restricted by the Scheme because of the provisions of cl 5B.4 of the Scheme. That and related clauses read:
Rural living and general rural zone requirements
5B.4.5
No person shall park a commercial vehicle except for immediate delivery or loading purposes normally associated with a domestic or rural use, unless approved by the City except in accordance with the following requirements:
(a) onsite provision for garaging or parking of the vehicle behind the front building setback line, is to be made in a manner satisfactory to the City; and
(b) the amenity of the neighbourhood is not to be prejudicially affected by the emission of light, noise, vibration, smell, fumes, smoke or dust.
5B.4.6
Nothing in subclause 5B.4.5 restricts the parking of a commercial vehicle used for the purpose of an approved rural use or rural industry.
5B.4.7
An application for parking a commercial vehicle shall be subject to an application for annual approval and if in the opinion of the City a nuisance or annoyance to the owners or occupiers of land in the locality occurs as a consequence of the parking of a commercial vehicle, the City may revoke or refuse to renew its approval.
25 In the present case, there was no suggestion that any of the vehicles was located on the premises for immediate delivery or loading purposes. Photographic evidence demonstrated that vehicles which the appellant asserts come within the definition of 'commercial vehicles' were located and parked on the property with empty trays or, in the case of the bobcat, with an empty shovel. They were located in clear areas and there were no piles of rubble or other items which in any way suggested that they were, had been or were about to be, used in any process of loading or unloading.
26 At [22] of his reasons the learned member of SAT found that Pt 5B of the Scheme dealing with rural living and general rural zone requirements did prohibit, without approval, commercial vehicles being parked except in specified circumstances. As already explained, it was the learned member's process of reasoning that while these vehicles should be assumed to be commercial vehicles, there was no definition in the Scheme of 'commercial vehicle parking' and, in view of the explanations given by the respondents, the private uses which they had subjectively fixed upon for these vehicles meant that, despite their general status or character, their presence on this land did not constitute commercial vehicle parking.
27 In their written submissions the respondents maintained that none of the vehicles the subject of the notice as being on their land was used or is used by them in the course of any business or trade. Instead, they contest that each vehicle was used by them only for private use. They refer to various examples of 'commercial vehicles' or 'commercial vehicle parking' as referring to a commercial vehicle used or intended to be used in the course of a business or trade and expressly deny and disavow any such purpose associated with their vehicles. Other arguments or variations of the submissions are also advanced but need not be separately examined.
28 The question for decision in this case about the meaning of the scope of the relevant provisions of this Town Planning Scheme depends upon whether or not the status of a vehicle as a commercial vehicle or otherwise is to be determined objectively or by the actual or subjective intention of the owners, such as the respondents, who may entirely genuinely have confined its use to private and noncommercial purposes. Generally speaking, statutes and other forms of legislation, including delegated legislation, are presumed to apply objectively. That is, they apply to the state of affairs or circumstances as they exist in fact and in the general course of experience, rather than subjectively, that is, subject to the individual intention and purpose of the person or persons involved.
29 This is even more so in the case of regulatory legislation intended to apply to a large number of persons such as a Town Planning Scheme. Here one can accept that neither of the respondents intended to use any of these vehicles for commercial purposes but they were, as has been conceded and as the learned member assumed, nevertheless commercial vehicles. That being the case, their use and the parking of them on property is controlled by the Scheme under the definition of 'commercial vehicle parking'. If this had been brought to the member's attention at the time, it would be difficult to see how the scope of that definition could not apply.
30 I am satisfied that, on the proper construction of 'commercial vehicle parking' within the terms of this Town Planning Scheme the current permission of the municipality for the parking of these vehicles on the property was required and that, where this had not occurred, the municipality had the power to give a Direction that this be done. Accordingly, I uphold these grounds of appeal by the appellant and consider that the decision of SAT under appeal displays an error of law and should be set aside. The finding should be that it was within the power of the appellant to give a Direction with respect to the parking of these commercial vehicles.
31 This leaves the fifth ground of appeal, that the decision of SAT was in error in concluding that the Direction notice could not be split or severed. However, this ground of appeal now falls away in the light of my conclusion that the municipality did have the power to give a Direction in relation to the parking of the commercial vehicles. However, it is desirable to mention some observations about this ground in light of the arguments addressed.
32 The doctrine of severance relating to whether an invalid or ineffective portion of a statute, bylaw or other piece of subsidiary legislation may be excluded so as to allow the remainder of the instrument or text to have effect has been fully examined and described by Johnson J in Yallingup Residents' Association Inc v State Administrative Tribunal & Ors [2006] WASC 162 [181] [202], where many of the leading authorities applicable to both legislative and common law applications in the doctrine were examined. It is to be recalled that in the present case the alleged ineffectiveness of the portion of the Direction issued by the appellant relating to the parking of commercial vehicles did not form any part of the Town Planning and Development Act nor of this Town Planning Scheme but was a notice or a direction issued pursuant to powers conferred by the Scheme. Accordingly, the questions arising on any issue of severance do not go to the question of whether or not the instrument was validly issued or lawfully authorised but, rather, as to whether it had legal effect.
33 In these circumstances, the application of the 'blue pencil' test would mean that it would be possible to strike out and disregard so much of the Direction as had related to the parking of commercial vehicles without impugning the effect of the remainder of the Direction relating to the sea container. Doing so would not radically alter the nature or effect of the Direction or the command issued by the municipality. Consequently, had I reached the conclusion that the Direction was ineffective in applying to the parking of commercial vehicles, contrary to the conclusion which I have reached, I would then have concluded that the section dealing with the parking of commercial vehicles could be severed, leaving the remaining portions of the Direction, namely those relating to the sea container, valid and effective. In that eventuality, I would have concluded that the invalid section of the Direction could and should be severed. However, that is not necessary and, in view of my conclusion on grounds 1 to 4 of this appeal, the issue of severance does not arise.
34 At [29] [32] the presiding member of the SAT referred to certain socalled constitutional arguments raised before him by the respondents relating to the status of corporations, local government, the constitutional validity of statutory laws, the supremacy of common law principles and the status of private property. The learned member concluded that those arguments were untenable and had no substance and had been consistently rejected by the highest courts in this State in decisions such as Pennicuik v City of Gosnells [2011] WASC 63 and Glew v Shire of Greenough [2006] WASCA 260. The written submissions and other written material filed by the respondents on this appeal include reference to these arguments but they were not raised in the course of oral submissions. Nevertheless, it is necessary for me to advert to them and to observe that I agree with the characterisation of them described by the learned member.
35 Other decisions binding on me which also reject these and similar doctrines are Glew v White [2012] WASC 100 and Hedley v Spivey [2012] WASCA 116 (Hall J). I refer to some of these cases in Krysiak v McDonagh [2012] WASC 270. A more recent collection of similar examples of this form of submissions is to be found in Glew v White [2012] WASCA 138. It is, accordingly, unnecessary to examine these contentions in detail for I am satisfied that none of them can have any effect on the outcome of this appeal.
36 In the circumstances, therefore, I would allow the appeal. The decision of SAT by order of 2 September 2011 allowing the application for review should be set aside and the application by the respondents to SAT for review of the Direction should be dismissed.
37 It is, of course, most unfortunate that such a minor dispute over the activities of the respondents' use of their own property in a rural living area should have come to such a pass. The evidence has disclosed that the respondents have, in previous years, obtained the consent of the municipality to park these or similar vehicles on their property and, so far as counsel for the appellant intimated, consent to the desired use of the land by the respondents if sought from the municipality even now is likely to be granted. There would seem to be every prospect for a conciliatory resolution of these issues and, despite the unfavourable prospects which may have arisen from past dealings between the parties, it is to be hoped that that can now occur.
2 The decision of SAT was announced orally by the learned member on 2 September 2011. The transcript of the reasons for decision is included in the papers before the court and an edited set of reasons has also been prepared formally by the SAT and these are also before the court: Chapman and City of Armadale [2011] WASAT 205. It is necessary to describe the proceedings which led to that decision and the decision itself briefly.