CANN and SHIRE OF AUGUSTA-MARGARET RIVER - [2021] WASAT 22

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   CANN and SHIRE OF AUGUSTA-MARGARET RIVER [2021] WASAT 22
MEMBER:   DR S WILLEY, SENIOR MEMBER
HEARD:   30 NOVEMBER 2020 AND 1 DECEMBER 2020
DELIVERED          :   16 FEBRUARY 2021
FILE NO/S:   DR 224 of 2019
BETWEEN:   PETER CANN
Applicant
AND
SHIRE OF AUGUSTA-MARGARET RIVER
Respondent

Catchwords:

Town planning - Development application - Reception centre - Noise Regulations - Noise - Amenity - Traffic - Compatibility - Incidental use - Complimentary use - Established use

Legislation:

Environmental Protection (Noise) Regulations 1997 (WA)
Interpretation Act 1984 (WA), s 5, s 18
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 64, cl 67
Planning and Development Act 2005 (WA), s 68(1), s 241(1), s 241(1)(a)
Shire of Augusta-Margaret River Local Planning Scheme No. 1, cl 1.6.5, cl 2.1.1, cl 4.15.5, cl 4.16, cl 4.19.2, cl 4.2.2.1(g), cl 4.2.2.2, cl 4.2.2.2(d), cl 4.2.6.2(a), cl 5.20(a)(xiii), cl 6.1.3(c), Sch 1
State Administrative Tribunal Act 2004 (WA), s 27(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr D Hollingworth (as agent)
Respondent	:	Mr J Skinner

Solicitors:

Applicant	:	Rowe Group
Respondent	:	Thomson Geer - Perth

Case(s) referred to in decision(s):

Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158
Association of Islamic Dakwah in Western Australia and City of Gosnells [2011] WASAT 80
Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26
Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38
Dao Ji Association and City of Gosnells [2020] WASAT 10
Del Giacco and City of Melville [2008] WASAT 134
G&G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel [2018] WASAT 9; (2018) 94 SR (WA) 36
GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1; 151 LGERA 74
Harvis Capital Pty Ltd v Mid-West/Wheatbelt Joint Development Assessment Panel [2020] WASC 205
IpilatesPerth Pty Ltd and City of Joondalup [2020] WASAT 52
Johnson v The Minister for Planning [2018] WASC 334
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211
Mersey Docks and Harbour Board v Henderson Brothers (1888) 13 App Cas 595, 599-600
Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312
Re Shire of Mundaring; Ex Parte Solomon & ORS [2007] WASCA 132.
Sanders v City of South Perth [2019] WASC 226
Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76
Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application for a 'reception centre' in the Rosa Brook locality within the Shire of Augusta-Margaret River. The site is Lot 1907 (HN 1078) Rosa Brook Road, Rosa Brook (the Land). The reception centre is to be used for weddings and other events (Proposed Development).
The Shire of Augusta-Margaret River (Shire or respondent) refused the Proposed Development on 20 September 2019. Peter Cann Development Consulting (otherwise referred to as Peter Cann or the applicant) lodged an application for review on 22 October 2019 (Review).
The matter was heard over two days in December 2020 in both Margaret River and in Perth. For the following reasons, the correct and preferable decision is to dismiss the application.

Background

The Land:
(a)is located at the corner of Rosa Brook Road and Arthur Road, Rosa Brook;
(b)has an area of approximately 48 hectares;
(c)is developed including:
(i)a single dwelling;
(ii)a 'high-bay machinery shed' and an additional smaller shed;
(iii)a large dam and a smaller soak;
(iv)a crossover onto Rosa Brook Road;
(d)was used for cattle grazing until 2010;
(e)has the benefit of a development approval issued in 2011 for a trufferie and dam (2011 Approval); and
(f)has been advertised as a venue for events, including weddings, notwithstanding that no development approval for these activities has been granted.
The Proposed Development:
(a)utilises approximately 2 hectares of the Land, including the dwelling;
(b)provides a maximum of 120 guests per event;
(c)includes parking for up to 70 vehicles;
(d)involves the erection of a 2 metre high fence along the Rosa Brook Road boundary (however, no details of the proposed fence have been provided);
(e)will host up to 52 events per year; and
(f)proposes events that will conclude no later than midnight.
It is also foreshadowed that the Proposed Development may involve hosting arts groups, food and wine or other tourist events. However, the primary activities will be weddings and other similar celebrations.
The Proposed Development was advertised in November 2019 pursuant to cl 64 of the deemed provisions of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions), which form part of the Shire of Augusta-Margaret River Local Planning Scheme No 1 (LPS 1 or Scheme). During the advertising period, 23 submissions received of which 20 objected to the Proposed Development, one was neutral and two submissions outlined support. The concerns that were raised in the submissions included:
(a)amenity;
(b)noise; and
(c)traffic.
These submissions are relevant considerations pursuant to cl 67(y) of the Deemed Provisions. On 20 September 2019 the applicant responded to the issues raised in the submissions. I will discuss that response later in these Reasons.
On 20 September 2019 the Shire resolved to refuse the Proposed Development for the following reasons:
1.The proposal is inconsistent with the objectives of the General Agricultural zone, as the proposal:
a)does not serve to preserve the established rural character and amenity of the land within the zone, and is inconsistent with the ongoing use and development of that land for productive agricultural purposes; and
b)is consistent with the presumption that non-agricultural use will be incidental and complementary to established agricultural use;
c)will result unreasonable adverse impact on the rural amenity of the area due to noise, traffic and visual impacts; and
d)will have an adverse impact to the landscape attributes of the area due to the location of the parking area and the view of vehicles parked onsite within the front setback area.
2.The proposal is inconsistent with the Deemed Provisions of Local Planning Scheme No. 1, Matters to be Considered, at clause 67 with specific regard to the following subclauses:
n)The proposal would have an unacceptable adverse impact to the character of the area and would have adverse social impacts arising from noise, traffic and visual impacts as a consequence of the use; and
t)The proposal for 200 guests is considered to generate an unreasonable and excessive volume of traffic for the area beyond the anticipated traffic volumes considered acceptable in a rural locality.

The 2011 Approval

The trufferie that was the subject of the 2011 Approval is not yet productive (in that the plantings necessary to produce truffles have not yet occurred). However, the applicant is actively working on preparing the Land such that the soil conditions will be conducive to producing truffles. As will be discussed, there is much work in preparing a site which to be used to grow and harvest truffles.
However, it is not in contest that the 2011 Approval has been substantially commenced and remains operative.

Applicable planning framework

Pursuant to LPS 1, the Land:
(a)is zoned 'General Agriculture';
(b)is within 'Special Control Area 1' which is the 'Margaret River (Priority 3) Water Catchment Area'; and
(c)is within 'Development Control Area 1'.
It is not in contest that the Proposed Development is classified as a 'reception centre' pursuant to LPS 1. Under the Zoning Table in LPS 1, the land use class 'reception centre' is grouped within the broader set of 'commercial uses'. 'Reception centre' is defined to mean:
premises used for functions on formal or ceremonial occasions but not for unhosted use for general entertainment purposes;[.]
In the General Agriculture Zone, a 'reception centre' is an 'A' use, meaning that the use is not permitted unless the Shire has:
a)exercised its discretion by granting development approval; and
b)only after giving special notice in accordance with cl 64 in Sch 2 of the Deemed Provisions
The aims of the Scheme (in cl 1.6.5) include:
To ensure the protection of Priority and General Agricultural Land as identified within the Scheme by discouraging any land uses and developments which would detract from the principal function of the land for productive agricultural purposes and ad hoc fragmentation of rural land which could lead to the establishment of non-rural uses and developments; and
To provide for the sustainable use of rural land for diverse agricultural production, which encourages and promotes best practice agriculture and sustainable land use change, and which accommodates ancillary and complementary rural activities.
The purpose of the General Agriculture Zone (set out in cl 4.2.2.2) is:
(a)To provide for a more general classification of rural land, other than that identified as being of State or Regional agricultural significance as set out in Local Planning Strategy, used, or capable of being used for a range of agricultural activities complemented by other ancillary uses which do not detract from the primary use of the land for agricultural purposes;
(b)To provide that subdivision and development activities that generate alternative and incompatible land use proposals should not be permitted[.]
The objectives of the General Agriculture Zone (also set out in cl 4.2.2.2) are:
(a)To provide for the broad range of potential extensive agricultural activities, and, where appropriate, some intensive agricultural and horticultural uses of land notwithstanding that some of the activities might also be appropriate to the Priority Agriculture Zone;
(b)To preserve the established rural character and amenity of the land within the Zone consistent with the ongoing use and development of that land for productive agricultural purposes;
(c)To oppose subdivision proposals which would adversely affect the utility of agricultural land for productive purposes through specific subdivision criteria to ensure long term agricultural sustainability and appropriate lot sizes as set out at clause 4.15.5; and
(d)To allow for the provision of sustainable low-impact tourist development such as chalet development but only where an established and continued agricultural, horticultural, viticultural or other similar rural production, or significant tracts of native vegetation that can be protected on the land holding and where such uses will be incidental and complementary to that established use or protection of the significant native vegetation.
Clause 4.16 of the Scheme provides some further considerations for discretionary and 'nonrural' based uses in the General Agriculture Zone. It is not necessary to address any of those provisions out in detail.
The Shire has prepared a local planning strategy (Strategy). Clause 2.1.1 of the Scheme provides that:
Except to the extent that the Local Planning Strategy is inconsistent with the Scheme, determinations of the local government under the Scheme are to be consistent with the Local Planning Strategy.
The Strategy, under the heading 'Planning Rationale' (at s 3.2), provides:
Policy should provide for the sustainable use of rural land for diverse agricultural production, which encourages and promotes best practice agricultural and sustainable rural land uses, while accommodating uses which are ancillary and complementary to rural activities/production.
…
… all development and land uses that have no justification for location within the rural areas of the Shire should be sited with existing settlements. This is also to ensure that degradation to the landscape values, character and amenity of rural parts of the Shire is avoided.
Further, the Strategy also provides at s 3.2.2 and at s 4.2 respectively:
Low impact tourism is permitted on rural zoned land in accordance with Local Planning Scheme No. 1, as an ancillary component of agricultural land use[.]
…
Small scale and low impact tourism opportunities and other limited but compatible non-agricultural land uses may be considered in certain circumstances, subject to these uses being incidental and complementary to the predominant agricultural use of the land[.]

Principles of interpretation

Given the nature of the issues in contest in this proceeding, it is appropriate that I set out the relevant principles of interpretation for planning schemes.
LPS 1 has effect 'as if enacted by the PD Act [s 68(1)]' and is 'subsidiary legislation' for the purposes of s 5 the Interpretation Act 1984 (WA) (Interpretation Act). However, even though LPS 1 has statutory effect and the orthodox canons of construction apply, it is relevant, as matter of legislative context, that planning schemes are not usually drafted by Parliamentary Counsel and are often expressed in terms which lack the precision of an Act of Parliament: Sanders v City of South Perth [2019] WASC 226 at [98]-[99] (Quinlan CJ).
It is also settled law that planning schemes are to be construed broadly and sensibly, not pedantically: Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38 at [84] (Buss P, Murphy and Mitchell JJA) (Australian Unity); Re Shire of Mundaring; Ex Parte Solomon & ORS [2007] WASCA 132 at [25] (McLure JA, Steytler P and Pullin JA agreeing) and Johnson v The Minister for Planning [2018] WASC 334 at [125] (Smith AJ).
Planning schemes should be 'applied in a practical and common sense, and not an overly technical way, in a fashion that will best achieve their evident purpose': Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 at [21].
By reason of s 18 of the Interpretation Act, a construction that would promote the purpose or object underlying the written law (whether stated or not) is to be preferred as against a construction that would not promote that purpose or object.
However, s 18 does not direct me to apply a construction which 'will best achieve' the object of the legislation: IpilatesPerth Pty Ltd and City of Joondalup [2020] WASAT 52; (2020) 100 SR (WA) 72 at [62].
Rather, s 18 of the Interpretation Act operates where there is more than one construction open. In such circumstances, s 18 provides that I should choose a construction that would promote the underlying objects or purposes of the legislation as against one which would not: Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368 at [37] (Banks-Smith J); see also Dao Ji Association and City of Gosnells [2020] WASAT 10 at [96].

Issues

The parties each consider that four issues arise for determination. While there was some disagreement as to their precise wording, those issues and my answer to those issues, are as follows:
1.Whether the Proposed Development warrants approval having regard to the applicable planning framework, in particular the relevant factors set out in cl 67 of the Deemed Provisions.
Answer: No.
2.Whether LPS 1 requires that a non-agricultural development be incidental and complementary to an established agricultural use in the General Agriculture Zone.
Answer: Yes although it is not an absolute requirement.
3.Whether the planning framework requires:
(a)the primary agricultural development to be established before considering any proposal for non-agricultural development; and
(b)if the planning framework does so require, whether the Proposed Development warrants approval notwithstanding that requirement has not been met?
Answers: (a) Yes; (b) No.
4.Whether it has been demonstrated that the reception centre is ancillary and complimentary to the approved trufferie.
Answer: No.

Nature of the review

This matter arises in the Tribunal's review jurisdiction.
My role is to hear the matter de novo and to make the correct and preferable decision: s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Summary of the evidence

At the final hearing, I heard from three witnesses, the applicant (Mr Peter Cann) as well as two expert town planners. Mr Nathan Stewart appeared for the applicant and Mr Nicholas Logan was called by the respondent.

Peter Cann

Peter Cann gave evidence relating to his purchase of the Land, the Proposed Development and, in particular, his efforts to establish a trufferie.

Nathan Stewart

Nathan Stewart is a senior planner with the Rowe Group. In his opinion the Proposed Development is 'generally consistent with the aims and provisions of LPS 1', therefore conditional approval is warranted: (Exhibit 9 at para 83).
Mr Stewart considers that the Proposed Development 'is not strictly required to meet all the requirements' for a zone. Mr Stewart considers that so long as the Proposed Development is not 'inconsistent' with the Scheme provisions, it cannot be said that it is contrary to the planning framework: Exhibit 9 at para 50. Therefore, it cannot be said that the planning framework requires, in a strict sense, that a non-agricultural development be ancillary to a primary agricultural development in the General Agricultural Zone: (Exhibit 9 at para 52).
In any event, Mr Stewart considers that the Proposed Development is 'incidental, ancillary and subordinate' to the trufferie and thus consistent with cl 4.2.2.2(d) of LPS 1: (Exhibit 9 at para 61).
On the question of amenity, in particular the issue of noise, Mr Stewart outlines that because the applicant has 'confirmed' that the noise levels arising from the Proposed Development will not exceed the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations), there will be no adverse amenity impacts arising: (Exhibit 9 at para 75(h)).

Nicholas Logan

Nicholas Logan is the Director of Sustainable Development at the Shire. In his opinion, the 'mosaic of statutory and policy considerations' provide for only limited forms of non-agricultural land use and development in the General Agriculture Zone: Exhibit 8 at para 59. Mr Logan considers that there must be a demonstrable ancillary and complimentary relationship between a proposed non-agricultural land use and the existing productive rural use: (Exhibit 8 at para 61).
Mr Logan considers that the applicant has not demonstrated that the Proposed Development would be ancillary or complimentary to an existing agricultural use. This is because the trufferie has not yet commenced: (Exhibit 8 at para 66).
On the question of noise, as an aspect of amenity, Mr Logan notes that the Proposed Development includes live music and that it is unknown what the noise impacts on the closest neighbours would be. He outlines that the applicant's arguments that the Noise Regulations will be complied with are 'unqualified'. He further outlines that while there can be no absolute expectations of 'quietness' in the General Agriculture Zone, in this instance the level of noise impact, if any, has simply not be determined: (Exhibit 8 at paras 86-88).

Consideration of Issue 1

The question of noise

Before I proceed to give close consideration to this issue, I note again that the Proposed Development was advertised pursuant to cl 64 of the Deemed Provisions. As I have set out at [7], during advertising, some 23 submissions were received, 20 of which objected to the proposal. The issues that were raised included amenity, noise and traffic.
In terms of the planning context for the Land, it sits within a rural locality which includes residential dwellings. At the site visit at the commencement of the final hearing, the parties drove to the nearest dwelling on Arthur Road which is approximately 590 metres from the Land. There are other residences in this locality on Arthur Road as well as elsewhere.
Mr Stewart included in his evidence a plan of the relevant locality for the purposes of planning assessment. Mr Logan did not disagree with Mr Stewart's assessment of the relevant locality. I generally agree with the planning experts in terms of the relevant locality, a plan of which is contained in Figure 1 of Mr Stewart's witness statement (Exhibit 9). Mr Stewart describes the relevant locality as follows (Exhibit 9 at para 15):
[T]he amenity of the locality is generally described as rural and cleared of vegetation to facilitate the grazing of livestock with some pockets of remnant trees and vegetation. There is a creek generally running in a north - south direction in the northern portion of the locality. Properties within the locality are generally occupied by a number of buildings, including a dwelling and various sheds and structures associated with the rural activities being carried out at the property. Buildings are generally single storey and focalised in a single area of a property, with the balance of the property set aside for agricultural purposes. Buildings are typically located near the street frontage. Dwellings generally appear to be constructed on masonry, weatherboard or other lightweight construction materials. Other structures are generally constructed of lightweight materials, such as metal, timber or plaster. Driveways and vehicle contain a water tank. Rosa Brook Road is a major road through the locality connecting eastern / inland areas to Margaret River and beyond via Bussell Highway.
To that I would add that there is no other 'commercial' activity within the locality in the nature of what is proposed. There are, however, lots that are used for productive rural pursuits on a commercial basis in the broader locality. For example, the Brown Hill Estate is just west of the locality as identified by Mr Stewart.
As I set out earlier, noise was raised as an issue during the public advertising. The question of noise and amenity was also raised squarely in the Shire's reasons for refusal. The question of noise arises as an aspect of amenity for the purposes of cl 67(n) of the Deemed Provisions. It also arises in the context of cl 67(m) which focuses on the question of compatibility.
The reason why I pause to expressly mention noise is that the Proposed Development seeks to introduce what is a commercial land use into a long-established rural area. Furthermore, the Proposed Development includes the prospect of live music up to 52 times per year each of which may conclude as late as midnight.
While the applicant sought to respond to the noise issues raised in the public submissions (Exhibit 2), in doing so he did not engage the services of an appropriately qualified acoustic consultant. Rather, he set out some analysis based on his understanding on the operation of the Noise Regulations.
However, the applicant misapplied Table 2 of the Noise Regulations by adding the additional 15 decibels, on account of impulsiveness on the basis that music will be emitted, to the receptor premises, rather than adding 15 decibels to the noise source that is measured.
While I intend no criticism of the applicant, as he is not an acoustic consultant, given that noise had legitimately been identified as an issue, that issue needed to then be addressed. However, the applicant did not adequately address the issue of noise and it remains unaddressed.
In the context of a proposal that seeks to introduce regular live music in a rural locality which contains residences, the question of noise needs to be adequately addressed.
I have discussed the question of noise, in the context of a planning assessment, in Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76 at [57]-[68]. I will briefly review that analysis.
The Noise Regulations constitute the regulatory regime for the control and management of noise in Western Australia. That regulatory regime was recently discussed by the Court of Appeal in Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158 at [34]-[49] (Murphy JA, Mitchell JA and Beech JA).
The Noise Regulations set out the maximum permissible noise levels for land uses based on levels, frequency and matters such as impulsiveness and tonality. It is generally accepted that land uses that will cause noise impacts on adjoining properties that exceed the maximum noise permitted by the Noise Regulations are not acceptable in the context of development control: GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1; 151 LGERA 74 at [61] (GMF).
In GMF the Tribunal set out that compliance with the Noise Regulations is a 'necessary, but in some cases not sufficient criterion, to ensure that the noise emissions from a proposed development would not have an unacceptable acoustic impact on the locality': at [61].
That is, even where a land use complies with the Noise Regulations, it does not automatically follow that the noise does not constitute an adverse impact on the amenity of the locality in a planning sense: Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [39] (Land Alliance).
In Del Giacco and City of Melville [2008] WASAT 134 the Tribunal refused a proposed storage yard adjacent to a residential area even though the proposal complied with the Noise Regulations: at [38]. Noise associated with traffic arising from a proposed place of worship was an issue in Association of Islamic Dakwah in Western Australia and City of Gosnells [2011] WASAT 80 at [50][59].
Mr Stewart's opinion is that if a noise does not exceed the Noise Regulations then it follows that there is no adverse amenity impacts arising from that noise in a planning sense: ts 55-56, 30 November 2020. As was pointed out to Mr Stewart by Mr Skinner, counsel for the Shire, Mr Stewart's approach to noise is contrary to established Tribunal authorities such as GMF.
However, notwithstanding Mr Stewart's opinion, the noise issues that arise in this case present even more fundamental difficulties for the applicant. This is because, in this instance, the question of whether the Proposed Development even complies or otherwise with the Noise Regulations is unknown.
In this matter, Mr Stewart's opinion is premised on the assumption that the Noise Regulations would be complied with. However, in the absence of any expert acoustic evidence, that assumption cannot be regarded as reasonable. I therefore do not accept Mr Stewart's evidence on the question of amenity as it relates to noise.
In this context of this case, I consider that the failure to adequately address noise is fatal to the application. In my opinion, it would be contrary to orderly and proper planning to approve the Proposed Development in circumstances where what may be a fundamental planning issue is left completely unresolved. This is particularly so having regard to the celebratory nature of events such as weddings where music, singing and dancing are routine.
The correct and preferable decision to refuse the Proposed Development on account of the failure to adequately address noise.

Other planning considerations

Having regard to my conclusions above, it is not strictly necessary to me to go any further in my planning analysis of the Proposed Development in the context of the cl 67 factors such as vehicle access, amenity (aside from noise) and compatibility. However, for the benefit of the parties I will offer the following brief observations based on the evidence before me.
First, I do not regard traffic access and egress (cl 67(s) of the Deemed Provisions) as being an issue on which this case should turn. I do not consider that the traffic access and egress issues arising from the Proposed Development will be disruptive to the road network or that safety issues arising from the crossover with Rosa Brook Road could not be adequately managed.
Second, leaving aside the question of noise, I do not regard amenity as a fundamental obstacle to a reception centre being located on the Land for the purposes of cl 67(n) of the Deemed Provisions. In terms of visual impacts, the various areas within the area identified to host events where guests would be located are largely screened from Rosa Brook Road. Furthermore, the proposed car parking areas could also be largely screened (with the appropriate fencing - noting that the nature of the proposed fencing was in issue). I also consider that the amenity issues that arise from vehicles entering and exiting the Land could be adequately managed.
Third, again leaving aside the question of noise, I am not satisfied that the Proposed Development would necessarily be incompatible with its planning context. The planning framework does not prohibit uses such as a reception centre being approved in this locality. Furthermore, there is nothing inherently objectionable about a reception centre being located in a rural context, providing the town planning impacts of such a development could be appropriately managed.
In an overall sense, and again, leaving aside the question of noise, I do not regard the Proposed Development as being necessarily inimical to the applicable planning framework. Leaving the question of the zoning objectives to the side, there is nothing inherently problematic with a proposal to locate a reception centre in a rural context. Indeed wineries and the like are common venues for wedding celebrations. Having viewed the Land at the commencement of the final hearing, I was not left with the impression that the use was necessarily inappropriate or unsuited to the context in which it was proposed.
However, in order to be granted approval, it is for the proponent to demonstrate that any town planning issues that arise from a proposal can and will be adequately managed. In the context of the Proposed Development, on the question of noise, that simply has not happened.

Issues 2, 3 and 4

These issues can be conveniently dealt with together.

The construction of LPS 1

Having already determined that the Proposed Development should be refused on the basis of the failure to address noise, it is not strictly necessary for me to engage with what was, in many respects, the central dispute in the proceeding. However, given that much of the oral argument was round the construction and application of cl 4.2.2.2(d) of LPS 1, it is appropriate that I address the issues that were in contest between the parties.
Before I proceed, I reiterate that while planning schemes have legal effect, they are to be construed in a broad practical and common sense manner. They are also to be construed having regard to their town planning purpose.
Furthermore, it is appropriate to note here that cl 4.2.2.2 sets out the objectives of the General Agriculture Zone. Pursuant to cl 67(a) of the Deemed Provisions, I am required to give 'due regard' to the provisions of LPS 1. Scheme provisions such as zoning objectives serve to guide the exercise of discretion in the context of development control. In general terms, they are not to be treated as being akin to a jurisdictional precondition or a mandatory requirement that a proposed development must meet.
I have previously set out cl 4.2.2.2(d) of LPS 1 at [17] but for convenience I set out it below:
To allow for the provision of sustainable low-impact tourist development such as chalet development but only where an established and continued agricultural, horticultural, viticultural or other similar rural production, or significant tracts of native vegetation that can be protected on the land holding and where such uses will be incidental and complementary to that established use or protection of the significant native vegetation.
While I deal with various components of cl 4.2.2.2(d) in the paragraphs below in an effort to illustrate my reasoning, I am mindful that the clause is to be read and applied as a whole in the context of LPS 1. Equally, I note the observations of Lord Halsbury in Mersey Docks and Harbour Board v Henderson Brothers (1888) 13 App Cas 595, 599-600 where he said:
It certainly is not a satisfactory mode of arriving at the meaning of a compound phrase to sever it into its several parts and to construe it by the separate meaning of each of such parts when severed.
See also Alanson J in Harvis Capital Pty Ltd v Mid-West/Wheatbelt Joint Development Assessment Panel [2020] WASC 205 at [77].

'Commercial' or 'tourist' development?

One of the applicant's arguments is that the Proposed Development is a 'commercial development' and not a 'tourist development' and therefore is not within the scope of cl 4.2.2.2(d) of LPS 1. The applicant makes this submission on the basis of his evidence that the reception centre will be marketed to, and in his view, largely utilised by, local people.
The applicant also refers to the Zoning Table which identifies the reception centre use in a group of 'commercial uses' and is not grouped with the 'tourism uses'. While I accept that how the various land uses are grouped in the Zoning Table is not altogether irrelevant, it is in no way a complete answer to whether a particular land use is a tourism development for the purposes of LPS 1.
The only 'tourism uses' identified in the Zoning Table of LPS 1 are accommodation based uses. However, tourism uses are not confined only to uses which offer accommodation. A use will be a tourism use (or a low density tourism development) if it is patronised by tourists to a significant degree. For example, a café on Rottnest Island, while it does not offer accommodation, would undoubtedly be a tourist use. Likewise, the shopfront of a whale shark viewing venture in Exmouth is also a tourism use even though it is not focused on accommodation.
In each instance, whether a use is properly a 'tourist use' will be a question of fact and degree. Reading and applying LPS 1 as a whole, it is simply not the case that the only developments that are tourist developments are those that provide accommodation.
Having regard to the fact that the Land is within the Margaret River region, which is a renowned tourist destination both within Western Australia and more broadly, I cannot accept that a reception centre, which is to be targeted at hosting wedding ceremonies, would not be a 'tourist development' that falls within the scope of cl 4.2.2.2(d) of LPS 1.
While such a venue may well attract some local patronage, that does not change the fact that it is venue which I find would be utilised, to a significant degree, by tourists - whether they be from within the southwest region of Western Australia or from places more broadly.
It follows that I do not accept the applicant's evidence nor his submissions on this point.
While I accept that the Proposed Development may well be a commercial operation, what is proposed is also a tourist development.

'Low level tourist development'

Having found that the Proposed Development is a tourist development, in order to be located on General Agriculture land, pursuant to cl 4.2.2.2(d) of LPS 1, it must be a 'low impact tourist development'.
The term 'low impact tourist development' is defined in Sch 1 to LPS 1 but the definition itself does not inform the question of what a 'tourism' use actually is. Rather, the definition refers to the need to preserve the 'rural and natural amenity' and that to ensure that any such development 'has minimal impacts on its site and surrounding areas'.
Therefore, I consider that the Proposed Development may be a 'low impact tourist development' for the purposes of LPS 1. The consequence of this is that the Proposed Development falls within the scope of cl 4.2.2.2(d) of LPS 1.

'Incidental and complementary' uses

I now turn to the meaning of the phrase which provides that tourist (being nonagricultural) uses are to be 'incidental and complementary' to an established agricultural use.
In summary, I consider that phrase requires that the non-agricultural use be incidental and complementary to the established agricultural use.
In this context, 'incidental' does not mean that it is an integral aspect or 'part and parcel' of the non-agricultural use in the seen explained in Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 (Lizzio), at 216 (Gibbs CJ, Murphy Wilson and Brennan JJ agreeing); see also G&G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel [2018] WASAT 9; (2018) 94 SR (WA) 36 at [17].
Incidental uses arising from cases such as Lizzio do not require approval because they are an integral, but incidental, aspect of the approved use. The example set out in Lizzio (at 216) is that approval to use land for residential purposes carries with it the authorisation to park and garage a motor vehicle. That is, such activities are an integral and incidental aspect of a residential land use.
The term 'incidental use' is defined in Sch 1 to mean 'a use of premises which is ancillary and subordinate to the predominant use'.
The word 'incidental' appears some 39 times in LPS 1. In some instances it is used in the Lizzio sense described above (for example in cl 4.19.2, cl 5.20(a)(xiii) and cl 6.1.3(c)). However, in other instances the reference to 'incidental' is not used in the Lizzio sense but in a rather difference sense. Clause 4.2.2.2(d) (as well as cl 4.2.2.1(g) and cl 4.2.6.2(a)) are examples of clauses where 'incidental' is used in this other context.
I say 'different sense' because the reference to 'incidental' in, for example, cl 4.2.2.2(d) is for a use that does require a separate development approval (and is therefore not 'part and parcel' of an approved use). However, the proposed non-agricultural use cannot be, as it were, a standalone use, but must demonstrate some kind of 'incidental and complementary' relationship with an existing agricultural use in order to be acceptable.
In the context of cl 4.2.2.2(d), the phrase 'incidental and complementary' is not without some difficulty. However, in my view, its meaning as a planning control is tolerably clear.
That is, properly understood and read in the context in which it is used, what is required is that the non-agricultural use be a supplementary use which, at some level, has a relationship with and which complements, the established agricultural use. I also consider that 'incidental and complementary' means, in a practical sense, the non-agricultural use is to be somewhat subordinate to the existing agricultural operation. Indeed that is what the definition of 'incidental' in LPS 1 indicates.
Some examples of such development that could be contemplated pursuant to cl 4.2.2.2(d) of LPS 1 might be chalet accommodation on a vineyard, where people get to experience the rural ambience of that property, or a restaurant that serves some of the produce that is grown or reared on the property. In each of these examples, the non-agricultural use is an adjunct to, and has some tangible relationship with, the agricultural operation. No doubt there will be many other examples.
Mr Logan was of the view that what is required is a 'functional' relationship between the non-agricultural and the established agricultural use: Exhibit 8 at para 64; ts 49, 30 November 2020. Provided that the question of what is a 'functional' relationship is approached in a broad and common-sense fashion, such an approach appears to be reasonable.

An 'established' agricultural use

By the use of the word 'established' in cl 4.2.2.2(d), LPS 1 requires that there be an existing agricultural use being made of the land that the nonagricultural use would be an adjunct of, and complimentary to.
I consider there is a logical planning basis for such a requirement in that it ensures that agricultural uses remain the priority in the general agriculture area and that non-agricultural uses are subordinate and attach to such uses.

Application of cl 4.2.2.2(d) to the Proposed Development

In the context of this case, by no measure can it be said that the trufferie is an existing or established land use. Indeed the applicant did not seriously suggest otherwise. Furthermore, it cannot be said that the applicant has established that there is a complementary relationship between a trufferie (assuming it was an established use) and a reception centre. Nor is it plain that the reception centre would be a use that is an adjunct to, or has a functional relationship with, the proposed trufferie. It follows that I do not accept the evidence of Mr Stewart on this issue.
For these reasons, it cannot be said that the Proposed Development is consistent with the objectives of cl 4.2.2.2(d) of the General Agriculture Zone.
I reiterate that it is not necessary for me to attach any particular weight to the provisions of LPS 1. This is because the term 'due regard', as applied in the context of the PD Act, does not require any particular, or minimum weight, to be given to the cl 67 of the Deemed Provisions or any other relevant planning consideration (for the purposes of s 241(1)(a) of the PD Act).
A flexible weighing process, in the sense set out by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [41], is the applicable (and correct) approach to s 241(1) of the PD Act: Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150 at [137] (Martin J); Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26 at [114] (Simmonds J).
Notwithstanding that the objectives of the General Agriculture Zone in LPS 1 are not be regarded as establishing a set of mandatory requirements, it is clear that one of the objects of the zone is to only allow non-agricultural uses where there is an established land use and where there that non-agricultural use is incidental and complementary to that established agricultural use.
While it should not be read as an absolute requirement in all instances, in this instance, I am not prepared to approve a nonagricultural use on the Land in circumstances where there is no established agricultural use.
Applying a practical and common sense construction of cl 4.2.2.2(d), in the context of the LPS 1 generally, the overarching objectives of the General Agriculture Zone are to preserve the rural character and amenity of the locality. However, development of non-agricultural uses may be appropriate where there is an established agricultural use that is to be continued and there exists some tangible relationship between the agricultural and non-agricultural uses. In my view, these objectives should be given considerable weight in the exercise of planning discretion.
I consider that approving the Proposed Development at this time would be akin to approving a stand-alone tourism use on rural land which would have the potential to seriously underline the objective of preserving the general agriculture land.
I take that view because, while I accept Mr Cann's evidence that he continues to prepare the Land and is still progressing the proposal for a trufferie, there is at this time absolutely no guarantee that the Land will ever produce truffles: ts 17, 30 November 2020.
It follows that, in addition to the failure to address the question of noise, I would also refuse to grant approval to the Proposed Development on the basis that the Proposed Development is contrary to the objectives of the General Agriculture Zone for the purposes of cl 67(a) of the Deemed Provisions.
For these reasons, I do not agree with the applicant's construction of cl 4.2.2.2(d) for the purposes of issues, 2, 3 and 4.
It follows that the correct and preferable decision is to affirm the Shire's decision and dismiss the application for review.
Orders
The Tribunal orders:
1.The respondent's decision under review is affirmed.
2.The application for review is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
16 FEBRUARY 2021