Development - Retrospective planning approval - Upgrade to existing dwelling - Characterisation of use - Whether decision involves the exercise of discretionary power

Town Planning and Development Act 1928 (WA), 8A(1)(a)

City of Cockburn v McNiece Industrial Systems Pty Ltd, unreported; SCt of WA (Burt CJ); Library No 5523; 24 September 1984

Deepblue Enterprises Pty Ltd v Town of Port Hedland [2003] WATPAT 32

MS M CONNOR (MEMBER)

REASONS FOR DECISION

1 This is an application by Wayne Brown (the "applicant") for review of a decision of the Shire of Wyndham-East Kimberley (the "respondent") to refuse retrospective planning approval "to upgrade the dwelling" on Lot 478 Jabiru Road, Kununurra ("subject land").

2 The development application was refused by the respondent at its Ordinary Meeting held 16 November 2004. In refusing the application, the respondent gave the following reasons:

"1 Council does not consider that the use of the dwelling is compliant with the provision of Town Planning Scheme No 7 - Kununurra and Environs as the dwellings [sic] does not constitute a caretakers dwelling.

2. The application does not conform to the objectives of the Rural Agriculture 2 Zone in accordance with Clause 5.29 of Town Planning Scheme No 7 - Kununurra and Environs;

3. The application does not conform with the objectives of Policy Area Precinct 17 - Packsaddle Agriculture 2 Area.

4. Council has elected to not use its power of retrospective planning approval in this instance."

3 The subject land has a total area of 8.8848 hectares and is located in the Packsaddle area, approximately 20 kilometres from the Kununurra townsite. The land is flat and is used for organic mango farming, consisting of approximately 200 trees.

4 There are currently three dwellings constructed on the land, described by the applicant as the main homestead, the caretaker's dwelling and a transportable building referred to as transient accommodation. Other improvements on the property include a fully equipped fruit packing shed with two cool rooms and a number of other sheds.

5 The applicant purchased the subject land approximately two years ago. Due to personal circumstances, Mr Brown and his family currently reside in the dwelling referred to as the caretaker's dwelling.

6 The proposal involves the demolition of an existing patio and extensions to the existing dwelling. The existing brick dwelling is only 38.25m2 in area (excluding the verandah) and a patio, approximately the same size, is attached to the northern side of the dwelling. The extensions propose an additional 76.5m2 of floor area added to the northern side of the existing dwelling, necessitating the demolition of the existing patio. The roofing and wall material of the extensions is custom orb.

7 The respondent received several anonymous complaints regarding unauthorised works being undertaken on the subject land. An investigation by the respondent's planning officer confirmed that unauthorised development had taken place on the property. The landowner was advised to cease work immediately and seek planning approval for the extensions.

8 An application for planning approval for extensions/renovations to the rear dwelling on the subject land was submitted by the applicant to the respondent on 30 September 2004.

9 A report was prepared by the respondent's planning officer, which was presented to the respondent at its Ordinary Meeting of the 19 October 2004 (refer to Appendix E of the Response Statement). The report identified that no planning approvals had been granted for the subject building but stated " ... there is evidence that the building was constructed as a Farm Stay prior to the preparation and implementation of Council's current Town Planning Schemes, and that the applicant was advised by the Council that the use was permitted by Council and that no approval was required". On this evidence, the planning officer considered the use and development of the subject building constituted a lawful non-conforming use.

10 The proposal was assessed against the non­conforming use provisions contained in the Shire of Wyndham-East Kimberly Town Planning Scheme No 7 Kununurra and Environs ("the Scheme") and the following was conveyed in the report to Council:

"Council can approve the extension to a non­conforming use under Clause 4.2.1 of the Scheme:

4.2.1 A person shall not alter or extend a non­conforming use or erect alter or extend a building more than 20% of the existing floor area of the building or buildings existing at the time of the gazettal of the scheme used in conjunction with a non­conforming use without first having applied for and obtained the Planning approval of the Council under the Scheme and unless in conformity with any other provisions and requirements contained in the Scheme and any relevant policy.

Whilst the proposed extensions are greater than 20% of the existing building, the extensions are less than 20% of the overall floor area of the buildings located on the property. Given that the above clause contains the words 'existing floor area of the building or buildings existing at the time of gazettal of the scheme' it is considered that Council can determine that the non-conforming use can be extended."

11 The planning officer's report recommended that planning approval be granted "for extensions to the existing dwelling constituting a non­conforming use", subject to three conditions.

12 The respondent at its meeting of 19 October 2004 resolved to defer consideration of the item until more information was gathered on the status of the tenure of the "three properties" on the lot.

13 Additional information was received from the applicant clarifying the occupancy of the three dwellings, stating the following:

"Main Homestead

Leased by Argyle Diamond Mine for a period of 12 months ending September 2005.

Caretakers Accommodation

We are currently living in the caretakers accommodation until the lease on the Main homestead is terminated.

Transient Accommodation

No written lease is in place. Wayne Stucke is occupying this accommodation for a period of 3 months."

14 Upon receipt of the additional information, the respondent's planning officer prepared a further report, which was presented to the respondent at its Ordinary Meeting of 16 November 2004 (refer to Appendix G of the Response Statement). In this report, the planning officer advised that the non­conforming use rights were ambiguous and described the proposal as an upgrade to the existing caretaker's dwelling. The officer assessed the proposal against the use class classifications contained in the scheme and recommended that planning approval be granted "to upgrade the existing caretakers dwelling", subject to two conditions.

15 The respondent, at its meeting of 16 November 2004, did not consider that the use fell within the definition of "Caretaker's Dwelling", and in its determination of this proposal classified the use as a "Dwelling".

16 Clause 5.1 establishes the need for planning approval under the scheme. In instances where development has been or is being carried out contrary to cl 5.1, a person may apply to the respondent under subclause 11.6 of the scheme for planning approval for that development. This is what has occurred in this instance.

17 In determining proceedings of this nature, the Tribunal is required to test the application against the legislative and policy framework of the respondent in order to determine whether approval should be given. It is not for the Tribunal to take into consideration the lawfulness or otherwise of the applicant's actions in constructing the extensions to the existing dwelling without the necessary approvals in place.

18 The subject land is zoned "Rural Agriculture 2" under the scheme. The objectives of this zone are set out under subclause 5.19.1 of the scheme which states:

"(a) to ensure the adequate supply of land for intensive agricultural and horticultural holdings in localities of adequate water supply and suitable soil types;

(b) to promote the use of these lots for the production of horticultural crops and associated uses only;"

19 "Table 1 - Zoning Table" ("Table 1") of the scheme indicates the permissibility of uses in the scheme area in the various zones. Table 1 does not list "Dwelling" as a specific use class, but lists a number of different types of dwellings including, "Single Dwelling", "Grouped Dwelling", "Multiple Dwelling", "Caretaker's Dwelling" and so on. The respondent has determined that the dwelling does not constitute a "Caretaker's Dwelling". The only other use class the dwelling could reasonably be determined as falling within is that of "Grouped Dwelling", which is a use not permitted within the Agriculture Rural 2 zone.

20 The applicant in his submission to the Tribunal outlined the personal circumstances surrounding reasons leading to the extension of the existing building. Although this is helpful in providing a context for Mr Brown's decision-making in this process, it is not relevant to the planning issue in contention, being the use class classification of the development.

21 The respondent contended that the use of the dwelling does not constitute a "Caretaker's Dwelling" and that the use and development of a third dwelling on the subject land does not conform with the objectives of the Rural Agriculture 2 zone or Development Control Policy "Policy Area Precinct 17 - Packsaddle Agriculture 2 Area".

22 The definition of "Caretaker's Dwelling" as contained in "Appendix 1 - Definitions" of the scheme is as follows:

"means a building used as a dwelling by a person having the care of the building, plant, equipment or grounds associated with an industry, business, office, rural activity or recreation area carried on or existing on the same site."

23 The respondent maintained that the extensions to the dwelling could not be argued to constitute a "Caretaker's Dwelling" as there was no indication in any correspondence or application form that the dwelling is required in order to house anybody to carry on any agricultural activities, or that the dwelling will be occupied by anybody who would be involved in any activities in accordance with the definition of "Caretaker's Dwelling". The respondent also contended that the need for a caretaker's dwelling is not justified as less than approximately 50 per cent of the subject land is under cultivation and there is an existing dwelling attached to the storage shed and cool rooms, as well as an existing single dwelling.

24 Mr Brown in his initial submission to the Tribunal clearly indicated that once he and his family relocated to the main homestead, which would be September 2005, the dwelling was to be used as a "Caretaker's Dwelling". This intention was further developed in the applicant's response to the respondent's "Response Statement", where the applicant again stated that "the extended cottage be caretaker occupied" and that "the transportable building will be removed as soon as possible".

25 The applicant in seeking this review is inviting the Tribunal to set aside a decision on characterisation of use. The determination of a use class is a matter that has been canvassed on many occasions by the Town Planning Appeal Tribunal, in particular Deepblue Enterprises Pty Ltd v Town of Port Hedland [2003] WATPAT 32 where the Tribunal found:

" ... the classification of the appropriate use class, was not a matter which involved the exercise of a discretionary power nor was it a decision in respect of the exercise of discretionary power nor is it otherwise covered by s 8A(1)(a) Town Planning and Development Act."

26 The short point is that once the local government has made a classification of use, and that use is not permitted, then there is no discretion to be addressed. As pointed out in City of Cockburn v McNiece Industrial Systems Pty Ltd, unreported; SCt of WA (Burt CJ); Library No 5523; 24 September 1984, the proper remedy would be an application to the Supreme Court for a writ of mandamus.

27 Although the respondent in this instance did not identify specifically the use class of the development, it clearly indicated that the dwelling did not fall within the use class - "Caretaker's Dwelling". All other "Residential" use classes, except for "Single Dwelling", which this development is not, are not permitted within the Rural Agriculture 2 zone. As this characterisation did not involve the exercise of a discretionary power, was not a decision in respect of the exercise of discretionary power, and is not otherwise covered by s 8A(1)(a) of the Town Planning and Development Act 1928 (WA), I determine that there is no right to seek review in relation to the decision made by the respondent on 16 November 2004 and that as a result this review must be dismissed.

28 However, in light of the evidence provided by the applicant during the review, the Tribunal notes there is a clear indication from the applicant that the dwelling is to be used as accommodation for a person having care of the rural activity existing on the subject land, which would accord with the definition of "Caretaker's Dwelling" as defined under the scheme. If the applicant, therefore, were to make a fresh development application to the respondent for retrospective development approval for alterations and additions to the existing building as a "Caretaker's Dwelling", it would appear to be open to the respondent to characterise the development as such.

1. The application for review of the decision of the respondent to refuse retrospective planning approval to upgrade the dwelling on Lot 478 Jabiru Road, Kununurra is dismissed; and

I certify that this and the preceding 8 pages comprise the reasons for decision of the Tribunal.

____________________________

Ms M Connor

Member