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.