STATE ADMINISTRATIVE TRIBUNAL

[2009] WASAT 118

18/06/2009

PLANNING AND DEVELOPMENT ACT 2005 (WA)

DR 410/2008

17 MARCH 2009

MR P McNAB (MEMBER)

28/04/2009

Perth

The decision under review is set aside and conditional approval granted

B

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MARK POTTER
RAELENE POTTER
SHIRE OF NORTHAM

Town planning
Development application
Home business
Small printing business
Residential area
Shire refused approval citing scale of operation and amenity concerns
Officers twice recommended approval
Whether Home Occupation Policy contemplated printing business
Whether scale of machinery non-industrial
Whether any material amenity concerns
Whether 'precautionary approach' should be adopted
Tribunal finding policy contemplated use of appropriate machinery in home business
Tribunal also finding policy contemplated small printing operations
Scale of subject operation held to be non-industrial
Proposal noise compliant on Shire's own noise testing
Amenity concerns insufficient to warrant refusal
Small scale of proposal did not invite 'precautionary approach'
Review allowed and conditional approval given for initial period of 12
months

Shire of Northam Town Planning Scheme No 5, cl4.3, cl9.4, Table1

Reynolds v Redland Shire Council [2000] QPEC 93

Orders made on 28 April 2009;1. The application for review is allowed.2. The decision under review is set aside, and in lieu thereof there will be a decision granting conditional approval for a period of 12 months for the applicants' printing home business in terms of the application made to the respondent.3. The conditions shall be substantially those already agreed to between the parties, and shall be reflected in further supplementary orders to be issued in due course from the Tribunal.Orders made on 29 April 2009;1. Further to paragraph 3 of the orders of the Tribunal made on 28 April 2009, the Tribunal imposes the following conditions upon the grant of planning approval.(a) The applicant must reapply for a continuation of the approved land use (the home business) within 12 calendar months of the date of approval. ;(b) If a new approval has not been granted at the time that the initial approval expires, the land use is to cease operating on the lot until such time as a new approval has been issued for the use. ;(c) The applicant shall comply with the conditions of this approval and the Shire may, upon reasonable notice, revoke the approval if there is a substantial breach of any of the conditions and after attempts at conciliation with any complainant have failed.(d) The operating hours of the home business shall be between 9.00 am to 5.00 pm on Monday to Friday, and between 9.00 am and 12.00 midday on a Saturday unless written approval from council is obtained to vary these hours. ;(e) The printing shed doors are to be closed when the printing machine is operating. ;(f) The applicant shall be permanently resident at the premises while it is being used for home business purposes. ;(g) No more than two persons, who are normally resident at the premises, and no more than two persons not resident at the premises, may be employed in the home business. ;(h) he home business shall be conducted in such a manner that it will be as far as is practicable unobtrusive in the neighbourhood, and will not otherwise prejudicially affect the amenity of the neighbourhood. ;(i) No advertisement other than a small sign of up to 0.2 square metres depicting the type of home business and telephone numbers will be permitted at the premises. ;(j) The home business shall not give rise to vehicular traffic beyond that which is normal to the neighbourhood or otherwise lead to a requirement for parking other than that which can normally be expected at the premises. ;(k) No parking on the street or road verge will be permitted. ;(l) Collections or deliveries shall not involve anyone other than the applicant visiting the premises. ;(m) Goods shall not be sold at the premises. ;(n) The storage of non-domestic amounts of pesticides or swimming pool chemicals, or any explosive or dangerous or toxic materials, including large quantities of printing inks/chemicals is not authorised under this approval. ;(o) The storage of any printing inks/chemicals in connection with the home business must be done to the CEO of the Council's satisfaction. ;(p) Council reserves the right to inspect the premises upon reasonable notice. ;(q) The home business is to operate "by appointment" only during the operating hours nominated in these conditions.

This review concerned the Shire of Northam's refusal to give planning approval for a small-scale home printing business in a residential area. The Shire was concerned about the scale of the operation, its impact upon residential amenity and whether the local planning framework (a specific policy dealing with home businesses) contemplated such activities.The Shire's planning officers twice recommended approval for the application. The Tribunal agreed with the officers. The policy expressly contemplated the use of non-industrial machinery. The Tribunal held that the policy contemplated non-industrial small home-based businesses, such as this one.Here, the machinery to be used was relatively modest and was wholly contained in a small insulated shed located at the rear corner of the applicants' property. The Shire's noise measurements indicated compliance with noise standards. None of the applicants' operations gave rise to any material amenity concerns.The review was allowed and conditional approval was given for the business to operate for an initial period of 12 months.What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.