Municipal Mysteries of Town Planning Law

town planning lawHe reached Chesham Square and made diagonally for No. 10 (which was) between two houses, of which one, rationally enough, bore the number 9 and the other was numbered 37: but the fact that this last belonged to Porthill Street was proclaimed by an inscription placed by whatever highly efficient authority is charged with the duty of keeping track of London’s strayed houses. Why powers are not asked of Parliament (a short Act would do) for compelling those edifices to return where they belong is one of the mysteries of municipal administration.” Joseph Conrad – The Secret Agent 

The concept of the planned use of land was first given statutory recognition in the British Housing and Town Planning Act of 1909. Up until then a landowner had complete freedom to develop their land however they pleased, subject only to compliance with health and building acts and bylaws and the common law of nuisance.

It became recognised that a purely individualistic approach to land ownership had to give way to controls. In Western Australia the Town Planning and Development Act 1928, modelled on the 1926 New Zealand Planning Act which in turn was modelled on the 1909 British Act, was one of the first such statutes in Australia. (Interesting that New Zealand then, as it still does in many areas, was showing the lead in the antipodes).

The Town Planning and Development Act provided for the establishment of “town planning schemes” as the main means of achieving planning and development control. Those town planning schemes were to be prepared by local governments and approved by the Minister. Centralised control under a WA Planning Commission did not then exist. In Britain, centralisation of control was recognised (the Uthwatt Report) as necessary after the Second World War when the country faced the problems of redeveloping bombed out areas.

“Town and country planning is not an end in itself; it is the instrument by which to secure that the best use is made of the available land in the interests of the community as a whole. By nature, it cannot be static. It must advance with the condition of the society it is designed to serve”.

The various local government areas (Cities) within the Perth Metropolitan Area have their own town planning schemes known as “local planning schemes”. Unfortunately, in the administration of those schemes some local authorities, or officers within those authorities, appear to lose sight of the purpose and objectives of planning control as described in the above quote. Odd, and sometimes quite perverse, decisions are sometimes made by local authorities which are difficult to reconcile with the concept that a planning scheme is intended to achieve the best use being made of the land to which it applies so as to serve the best interests of the community.

One example of a recent matter that Fletcher Law dealt with seems to illustrate that point.

The curious case of the incidental showroom and unwanted parking bays

The client ran a successful manufacturing business, largely using imported components. It occupied a factory, and surrounding paved area, under a lease. The premises were in a designated light industrial area.

As an incidental aspect of the manufacturing operation the client held completed product in a warehouse showroom section of the factory premises for inspection by customers prior to taking delivery and to some extent for display to the public.

As another incidental aspect of the business, the client stored some component parts and partly completed product on a paved area at the rear of the factory.

The property was zoned “industry” under the local planning scheme. Warehouse use was a permitted use in industry zones as was the use class “storage (outdoor)”.

However, when the factory was extended some thirty years prior to our client occupying it, a planning condition was imposed that specified that no goods or materials were to be stored in the parking areas surrounding the factory. The client knew nothing of this condition.

Almost the entirety of the bituminised area around the factory had been marked out by a previous tenant with parking bays – almost two dozen of them. The client had no need at any time to accommodate that number of vehicles parked at the premises.

The City notified the client about the condition preventing storage of anything, other than a parked vehicle, on the bituminised area at the rear of the factory but told the client it could submit a development application for approval of outdoor storage. The client immediately did submit such an application.

At all times the City had accepted that the showroom component of the premises was incidental and subordinate to the manufacturing use and required no separate approval.

Several months after the application was lodged, at the suggestion of the City, for approval to make limited use of the bituminised area at the rear of the factory for storage of materials, the City did two things:

Firstly, it changed its position regarding the showroom and declared that it was not in fact “incidental” and was considered to be an illegal use of the property.

Secondly, it refused the application for approval to store materials outside at the rear of the property and gave as its reason for refusal the fact that the client was non-compliant with the prohibition against outdoor storage! It is inexplicable that a local authority, having motivated an application to be made for an approval that would transform a non-compliant situation into a compliant situation, would refuse the application on the ground that the use up to that point had been non-compliant.

An additional reason given was that the use of the redundant carbays at the rear of the factory was considered by the City to be “not consistent with orderly and proper planning under the established planning framework for the locality and the industry zoning”. But why not? Surrounding factories made extensive use of their outdoor areas for storage of plant, machinery etc. It was an industrial area and not a residential area. The use was low impact. The use was one for which planning permission should clearly have been given.

The client was prosecuted by the City. The prosecution for improper use of the warehouse / showroom was quickly dropped – as it should have been. The prosecution was completely unwarranted and would not have succeeded.

The prosecution for the misuse of the rear outdoor area of the factory proceeded. There was no defence because the client had stored items outside when a planning condition expressly prohibited that use, but the offence was trivial and the prosecution petty.

The magistrate agreed, and consequently the client was fined a very small amount.

The City should simply have allowed the application for a change of use for that portion of the land. There was no good reason not to do so.

The upshot of this exercise in bloody-minded municipal administration was that a successful, clean, attractive, profitable business contributing to the local economy was lost to the City when the business relocated itself to a nearby City where it was welcomed as a corporate citizen worth having.

How this saga in the administration of planning law could be said to in any way serve the best interests of the community of the prosecuting City is, and must remain, a mystery in municipal administration.

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