Australia: Resolving the Gordian Knot – Competing land use classifications in WA

Last Updated: 13 April 2019
Article by Philip Mavor

The State Administrative Tribunal (Tribunal) has referred to the characterisation of uses where there are competing land use classifications in a local planning scheme (Scheme), as being akin to trying to resolve a 'Gordian knot'.

However, the Tribunal noted that such Gordian knots are resolved by clauses in the Scheme which require a specific land use to be preferred over the more general and that once a land use is defined, it is deemed to be excluded from other more general classifications. This was discussed in the recent Rando decision.

The issue in Rando

The issue in Rando and City of Gosnells [2019] WASAT 6 (Rando) was the refusal of the City of Gosnells to allow certain additional activities/uses as part of an approved development. The approved development was a tyre sale and fitting use, which was classified by the City as 'Industry – Service'.  The relevant zone in the Scheme was 'Mixed Business'.

The additional activities sought by the applicants included servicing and adjustment of the front end and braking system, electronic diagnosis and reprogramming where required, logbook servicing and sale and fitting of batteries (but no mechanical repairs such as engine overhaul, replacement repairs, body repairs or painting, or clutch and differential repair).

The City refused the proposed additional activities on the basis that they were classified as Motor Vehicle Repair and therefore prohibited in the Mixed Business Zone. 

One of the questions that arose for the Tribunal was how the applicant's proposed additional activities should be classified under the Scheme.

Not incidental

The Tribunal observed that wheel alignments would be an incidental part (and regarded as 'part and parcel') of a tyre sales and fitting land use that would not require the further approval of the City, however the proposed additional activities related to motor vehicle works, and were unrelated to and did not naturally attach to or form part of, the approved tyre sales and fitting use.

The Tribunal found that the applicant's additional activities were a separate and independent land use.

Motor Vehicle Repair classification

The Tribunal noted that land use classification informs the question as to whether the proposed use is capable of approval.

Member Willey determined that the proposed additional activities were properly classified as Motor Vehicle Repair, and were therefore a prohibited use in the City's Mixed Business Zone.

The Tribunal rejected the applicant's principal submissions that vehicle (or logbook) servicing is an activity that falls within the Service-Industry definition, or alternatively, that logbook servicing and battery sales and fitting did not constitute Motor Vehicle Repair and accordingly should be regarded as a 'use not listed' in the Scheme such that discretion is available.

The Tribunal found that to accept these arguments would be to read and apply the Scheme narrowly and pedantically and contrary to established principles.

Interpretation of the Scheme

The Tribunal noted that the Scheme is a written law for the purposes of the Interpretation Act 1984 (WA). By reason of s.18 of that Act a construction that would promote the purpose of object underlying the written law (whether stated in the written law or not) should be preferred to a construction that would not promote that purpose or object.

The Tribunal observed that s.18 of the Interpretation Act is not directed to a construction which 'will best achieve' the object of the legislation, but is rather directed to a choice between a construction that would promote the underlying objects or purposes of the legislation, and one which would not.

Member Willey examined the legal authorities on the modern approach to statutory construction, and identified the following principles, insofar as they are relevant to the classification of the applicant's proposed additional activities:

  • The task of statutory construction must begin (and end) with consideration of the text itself. Where the text is clear historical consideration and extrinsic materials cannot displace that clear meaning. The language chosen by the legislature is the surest guide to legislative intention.
  • The principles of statutory interpretation are no less important when the relevant instrument is a planning scheme.
  • The text should not be read in a manner divorced from its context and purpose, and the mischief to which it is directed. That context and purpose may inform the meaning of the language chosen by the legislature.
  • Planning schemes are not usually drafted by Parliamentary Counsel, and are often expressed in terms that lack the precision of an Act of Parliament. Planning schemes should be construed broadly rather than pedantically, and with a sensible practical approach. Planning schemes should not be applied narrowly nor pedantically.
  • Legislative purpose is to be ascertained from what the legislation says. Discerning legislative purpose is an objective exercise of statutory construction and is not a quest to ascertain what those who passed the legislation may have had in mind.

Specific over the general

The Tribunal noted that the City's Scheme contained the following clause 3.4.1:

"Where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use."

Member Willey noted that in ALH Group Property Holdings Pty Ltd v Presiding Member of the Metro Central Joint Development Assessment Panel [2018] WASAT 63 the Tribunal accepted that the effect of such a provision is that where a land use falls within two definitions, the more specific definition is to prevail over the more general.

Reasoning of the Tribunal

Member Willey observed that the proposed additional activities involved electrical and/or mechanical repair of motor vehicles, and set out four main reasons why he was satisfied that the applicant's proposed additional activity falls within the Scheme definition of Motor Vehicle Repair, and are therefore a prohibited use in the Mixed Business Zone.

Firstly, by applying the City's Scheme in a sensible and practical manner, Member Willey was satisfied that the proposed additional activity/use falls within the terms of the definition of Motor Vehicle Repair.  The definition of Motor Vehicle Repair refers to premises being 'used for or in connection with electrical and mechanical repairs to vehicles'.  The Proposed Use comprises activities which involve the electrical and/or mechanical repair of motor vehicles.

Member Willey determined that:

  • the land use Motor Vehicle Repair is specifically directed towards electrical or mechanical repairs to motor vehicles, and on the other hand, the Industry ­Service definition is more general in its application and refers to any 'goods' that may be serviced;
  • by reason of cl 3.4.1, a specific land use is deemed to be excluded from the general terms used to describe any other use; and
  • this means that even if the Tribunal considered that the proposed additional use was capable of being an Industry ­Service (which it did not) then by reason of cl 3.4.1 the more specific land use shall apply.

Secondly, the Tribunal considered that the applicants (by seeking to distinguish between the 'servicing' and 'repair' of motor vehicles) sought to draw out a distinction of no consequence in a land use planning sense.

Member Willey observed that planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials and landowners to identify the permissible uses of land to which the scheme applies. Accordingly, the Tribunal should be slow to classify land uses in the narrow and strict manner invited by the applicants as it will reduce the capacity of these people to comprehend its meaning.

The Tribunal noted that in classifying land uses, the activities that comprise the particular use are key, but did not consider it appropriate to attempt to draw, for the purposes of land use classification, a distinction between 'serving' and 'repair' of motor vehicles. While a planning scheme has legal effect and ordinary principles of construction apply, it was unrealistic to expect a planning scheme to be drafted with the precision which the applicant's submissions invite. It is accepted that planning schemes are largely the work of town planners.

Member Willey observed that a planning scheme should be read and applied in a practical and common-sense manner and construed broadly. To suggest that a vehicle mechanic replacing a faulty, worn or expired part is 'servicing' a vehicle but not 'repairing it' is to seek to draw out a distinction without a difference in terms of land use.

The Tribunal did not accept the applicants' argument that servicing and the replacement of parts does not constitute the repair of a motor vehicle.

Thirdly, with reference to the Collins and the Oxford Dictionary, the ordinary meaning of the verb 'repair' includes both the fixing and replacement of parts. The general rule is that words in a statute should be taken to have been used in their ordinary meaning (citing Van Der Feltz v City of Stirling [2009] WASC 142).

Fourthly, the Tribunal rejected the applicant's submission that the absence of an express reference to 'vehicle servicing' in the definition of Motor Vehicle Repair is significant in how the applicant's additional activities should be classified.

Member Willey determined that:

  • by applying the City's Scheme in a sensible and practical manner, the activities that comprise the applicant's additional activities are properly regarded as 'repairs' to motor vehicles;
  • this construction is consistent with the underlying purpose of the Scheme which includes controlling land use and development;
  • if the applicant's construction of the Scheme were accepted, the City's capacity to effectively manage and control these types of activities within its district would be significantly diminished; and
  • having found that the applicant's additional activities were properly classified as Motor Vehicle Repair, by force of cl 3.4.1 of the City's Scheme these activities cannot then be classified within the more general Industry-Service land use.

The decision made by the City of Gosnells to classify the applicant's proposed additional activities as Motor Vehicle Repair (and therefore prohibited in the City's Mixed Business Zone) was affirmed by the Tribunal.

Conclusion

In order to avoid problems with the characterisation of uses in a local planning scheme where there are competing land use classifications, a local government should ensure that its scheme includes a clause that provides that where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Philip Mavor
 
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