The recent decision of Airport Liquor Pty Ltd and City of Wanneroo [2024] WASAT 26 (Airport Liquor) offers a timely reminder of the importance of appropriately characterising a proposed land use within the terms of the relevant planning scheme.
This publication will consider the recent decision of the State Administrative Tribunal (SAT) in Airport Liquor and provide a refresher on the characterisation of land uses.
The decision of Rando v City of Gosnells [2019] WASAT 6 (Rando) confirmed that the characterisation of a land use is a necessary first step to determine whether a proposed use is capable of approval within the parameters of the relevant local planning scheme.[1]
While the characterisation of land uses might seem on its face like a straightforward exercise, it can become more difficult (as was the case in Airport Liquor) where a proposed use could be classified as an ‘X’ or prohibited use in the relevant local planning scheme, or where it falls outside the defined land uses contained in the scheme.[2]
The case of Rando confirmed that, as planning schemes tend to be drafted and interpreted by town planners (as opposed to lawyers), they must be read and applied practically and with a common-sense approach. This approach was reiterated in Airport Liquor.
The recent SAT decision of Airport Liquor dealt with classification of the existing land use at 1954 Wanneroo Road, Neerabup (Subject Land). The Subject Land, owned by Airport Liquor Pty Ltd (Applicant), had an area of 2.619 ha and was zoned ‘Rural’ under the City of Wanneroo District Planning Scheme No. 2 (DPS 2) and the Metropolitan Region Scheme (MRS).
The land use in question upon which retrospective approval was sought concerned the keeping of caravans, boats, trailers, and camper trailers on the Land (Development). Essentially, members of the public who engaged the Applicant’s service paid a monthly fee for a lot on the Subject Land to store a vehicle or vehicles. Customers could then access these vehicles during the Development’s opening hours of 6:00am and 6:00pm through a single-entry point, with the rest of the Subject Land enclosed by a 1.8-metre high fence.
While the Applicant submitted that the Development should be classified as an innominate use pursuant to clause 3.3(4) of DPS 2 (being a use that is not defined in the scheme but is capable of approval subject to the exercise of discretion), the City of Wanneroo (City) submitted that the Development should be classified as a ‘car park’ under DPS 2 (which, as a prohibited ‘X’ use within a Rural zone, would not have been capable of approval).
The Applicant adopted a strict reading of the definitions for ‘car park’ and ‘warehouse/storage’ contained in DPS 2 to attempt to demonstrate that the Development did not fall within either of these definitions.
In particular, the Applicant submitted that the Development could not be classified as a ‘car park’ in line with DPS 2 as the Subject Land had no relevant ‘premises’ (as was required by the definition of ‘car park’ in DPS 2) and that the Development did not involve the ‘parking’ of vehicles.
By contrast, the City submitted that the ‘defining activity’ of the Development involved customers leaving their vehicles on a specified lot such that they were parked on the Subject Land, and for that reason the correct land use classification for the Development was as a ‘car park’.
Ultimately, Senior Member Dr Stephen Willey concluded that the Development should properly be classified as a ‘car park’ for the purposes of DPS 2. Dr Willey relied heavily on the decision of Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38 (Australian Unity) as the appropriate approach that should be undertaken when interpreting local planning schemes.
In particular, Australian Unity confirmed that, because local planning schemes are often interpreted without assistance from legal counsel, “[p]lacing a counter-intuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning”. In this respect, Australian Unity concluded that “[t]he task of construction is not to make a fortress out of the dictionary”. Instead, “[t]he exercise remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which and purpose for which it was enacted”.
On this basis, Dr Willey felt that the approach undertaken by the Applicant was inconsistent with the conclusions reached in Australian Unity, and was in fact not an approach open to the Applicant on the basis of DPS 2, as it would have resulted in the scheme being read and applied narrowly and not in a commonsense manner. Ultimately, Dr Willey confirmed that “planning schemes need to be read and applied in a manner that is comprehensible by the community”.
In this respect, Dr Willey believed that, based on a close analysis of the wording of the definitions of ‘vehicle’ and ‘park’, the Development clearly fell within the ordinary and common meaning of those words. Indeed, Dr Willey agreed with the City’s observation that the Development itself was not materially different from the operation of other long-term car parks in Perth, including for example those found at Perth International Airport. Dr Willey did however concede that the Applicant’s line of reasoning may have had more success if the definition of ‘vehicles’ provided in DPS 2 did not have an inclusive nature.
The recent decision of Airport Liquor offers a word to the wise for those who may be considering attempting to apply a strict approach to interpreting the provisions of a local planning scheme. Although the characterisation of land uses will necessarily be considered on a case-by-case basis, the SAT and Supreme Court have both confirmed that land use definitions and planning schemes generally must be read broadly, and planners and lawyers alike should appreciate that their provisions are intended to be applied and understood by the community at large.
If you have any questions in relation to the characterisation of land uses, please feel free to contact the Lavan Planning & Environment team.
1 Planning and Environmental Law in Western Australia, Dr Stephen Willey, [11.310].
2 Planning and Environmental Law in Western Australia, Dr Stephen Willey, [11.300], discussing Rando.
