CASTLE and CITY OF ROCKINGHAM
[2018] WASAT 98
•4 OCTOBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CASTLE and CITY OF ROCKINGHAM [2018] WASAT 98
MEMBER: DEPUTY PRESIDENT, JUDGE PARRY
HEARD: 9 AUGUST 2018
DELIVERED : 4 OCTOBER 2018
FILE NO/S: DR 200 of 2017
DR 379 of 2017
BETWEEN: NOEL GORDON CASTLE
Applicant
AND
CITY OF ROCKINGHAM
Respondent
Catchwords:
Town planning - Direction to remove development and restore land to its condition prior to commencement of development - Land used as workshop for maintenance, repair and servicing of plant and equipment, storage of plant and equipment and fabrication of farm gates and stock yards - Preliminary issue - Whether development approval for 'an Existing Workshop for the Repair of Agricultural Machinery' authorises current use of land - Development approval granted subject to condition that 'The use of the workshop being limited to the maintenance, repair and servicing of plant and equipment used for rural purposes in the locality only' - Development application - 'Rural Workshop' involving 'a workshop, office, shed and shelters' - Preliminary issue - Whether proposed use of land capable of development approval under local planning scheme - Land use classification - Whether use properly classified as 'IndustryRural' which includes 'a workshop servicing plant or equipment used for rural purposes in the locality' and is discretionary use in Rural zone under local planning scheme - Whether use is innominate or unlisted use under local planning scheme - Whether use falls within definition of 'industry' in local planning scheme which means 'premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances' - Whether use properly classified as 'Industry-Light' or 'Industry-General' which are prohibited in Rural zone under local planning scheme - Words & phrases: 'articles', 'goods', 'in the locality', 'only', 'products', 'rural purposes'
Legislation:
City of Rockingham Local Planning Scheme No. 2, cl 1.7, cl 1.10.1, cl 3.2.1, cl 3.2.2, cl 3.2.4, Pt 2 Sch 1
City of Rockingham Town Planning Scheme No. 1, cl 1.12, cl 3.3, cl 3.4
Planning and Development Act 2005 (WA), s 4(1), s 214(3), s 252(1), s 255(1)
Town Planning Regulations 1967 (WA), App D
Result:
DR 200/2017 - Development approval granted by respondent on 19 December 1989 does not authorise current use of applicant's land
DR 379/2017 - Proposed use of applicant's land is not capable of development approval pursuant to City of Rockingham Local Planning Scheme No. 2
Summary of Tribunal's decision:
Mr Noel Castle sought review by the Tribunal of the City of Rockingham's decision to give him a direction under s 214(3) of the Planning and Development Act 2005 (WA) alleging that certain 'development' is being undertaken on the site in contravention of the City of Rockingham Local Planning Scheme No. 2 (LPS 2) and requiring him to remove the development and restore the land to its condition immediately prior to the commencement of the development (DR 200 of 2017).
Mr Castle also sought review by the Tribunal of the decision of the Council to refuse to grant development approval for a 'rural workshop' on the site in order to regularise the current use (DR 379 of 2017).
During the proceedings, the parties discovered a development approval granted by the Council on 19 December 1989 for 'an Existing Workshop for the repair of Agricultural Machinery'. The development approval was granted subject to four conditions, with the fourth condition stating that 'The use of the workshop being limited to the maintenance, repair and servicing of plant or equipment used for rural purposes in the locality only'.
In this context, the Tribunal identified and listed the following issues for determination as preliminary issues in the proceedings:
DR 200 of 2017
Does the development approval granted by the Council on 19 December 1989 authorise the current use of Mr Castle's land?
DR 379 of 2017
Is the proposed use of Mr Castle's land capable of approval pursuant to LPS 2?
The Tribunal determined that the development approval granted by the Council on 19 December 1989 does not authorise the current use of the site, because a substantial proportion of the plant and equipment that is maintained, repaired and/or serviced at the site is not 'used for rural purposes in the locality only' (emphasis added), contrary to condition 4 of the development approval.
The Tribunal also determined that the use proposed in the development application (which is the same as the current use) is not capable of approval under LPS 2 on the site, because it is properly classified as either 'Industry-Light' or 'Industry-General' under the scheme and is, therefore, a prohibited use in the Rural zone.
Category: B
Representation:
Counsel:
| Applicant | : | Mr H Jackson |
| Respondent | : | Mr C A Slarke |
Solicitors:
| Applicant | : | IRDI Legal |
| Respondent | : | McLeods Barristers & Solicitors |
Case(s) referred to in decision(s):
Attwell and City of Albany [2009] WASAT 38; (2009) 61 SR (WA) 25
City of Swan v Investments (WA) Pty Ltd [2011] WASC 17; (2011) 181 LGERA 228
City of Swan v Snowdale Holdings Pty Ltd [2016] WASC 260
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 v Shire of SerpentineJarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1
Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
Ridge City Holdings Pty Ltd and City of Albany [2006] WASAT 187
Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works (1972) 30 LGERA 333
Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 4 June 1981, Mr Noel Castle and Mrs Linda Castle became the registered proprietors of No. 225A (Lot 1207) Doghill Road, Baldivis (Lot 1207).
On 19 October 1981, Mr Castle applied to the Shire (now City) of Rockingham (City or Council) for a building licence to construct a brick and steel building, comprising a shed, office, store, toilet and shower, on Lot 1207 (shed). On 4 November 1981, the Council granted a building licence for the construction of the shed. The shed was constructed in about February 1982 and Mr and Mrs Castle then commenced operating a rural workshop business from the shed, which they described in a letter to the City on 12 October 1989 as a 'mobile repair business'. In the same letter, Mr and Mrs Castle said that '[w]e repair mainly agricultural machinery from the surrounding district'.
In January 1998, Lot 1207 was amalgamated with other land owned by Mr Castle to form No. 225 (Lot 200) Doghill Road, Baldivis (site).
At the time when Mr and Mrs Castle commenced operating the rural workshop business on Lot 1207, the land comprising the site was zoned 'Rural' under the Shire of Rockingham Statutory Town Planning Scheme No. 1, which was later retitled as the City of Rockingham Town Planning Scheme No. 1 (TPS 1). The site remained zoned 'Rural' under TPS 1 until that scheme was repealed by cl 1.7 of the City of Rockingham Local Planning Scheme No. 2 (LPS 2 or Scheme) on 19 November 2004. Since that time, the site has been zoned 'Rural' under LPS 2.
Neither Mr Castle nor the City has identified any record of development approval having been granted for the use of the shed for the rural workshop business under TPS 1 at the time when the rural workshop business commenced, or subsequently, prior to 19 December 1989. On that date, the City granted an application made by Mr and Mrs Castle on 1 December 1989 for development approval under TPS 1 for development described on the development application form as 'Existing workshop as per plans supplied to be used for repair of agricultural machinery'. The plans submitted to the Council with the development application on 1 December 1989 were the building licence plans to construct the shed approved on 4 November 1981.
The Council granted the development approval subject to four conditions, including the following:
4.The use of the workshop being limited to the maintenance, repair and servicing of plant or equipment used for rural purposes in the locality only.
On 18 May 2017, the City gave Mr Castle a direction under s 214(3) of the Planning and Development Act 2005 (WA) (PD Act), alleging that certain 'development' is being undertaken on the site in contravention of LPS 2, and requiring him to remove the development and restore the land to its condition immediately prior to the commencement of the development.
On 14 June 2017, Mr Castle commenced proceeding DR 200 of 2017 seeking review by the Tribunal, under s 255(1) of the PD Act, of the City's decision to give him the direction (DR 200 of 2017). The parties agree that Mr Castle has complied with the direction in relation to two of the three categories of 'development' identified in the direction. However, Mr Castle continues to seek review of the direction insofar as it requires him to remove the following 'development' from the site and to restore the site to its condition immediately prior to the commencement of this development:
Transport Depot and Contractors [sic] Yard and associated Prime mover, heavy haulage vehicles, graders, loaders, trailers, machinery and equipment on the Land.
On 31 August 2017, Mr Ross Underwood of Planning Solutions, Mr Castle's town planning consultant, applied to the City for development approval under LPS 2 for a 'rural workshop' on the site in order to regularise the current use. On 9 November 2017, the Council refused to grant approval for this development for reasons including the following:
The Application is for a land use that is properly characterised as 'Industry: Light' under Town Planning Scheme No.2, which is a prohibited (X) land use in the Rural Zone and is therefore incapable of approval.
On 24 November 2017, Mr Castle commenced proceeding DR 379 of 2017 seeking review by the Tribunal, under s 252(1) of the PD Act, of the decision of the Council to refuse to grant development approval (DR 379 of 2017).
At the time when the development application for a rural workshop on the site was lodged on 31 August 2017, and at the time when Mr Castle sought review of the City's refusal of that development application on 24 November 2017, neither he nor the City had located the development approval granted on 19 December 1989. The development approval was subsequently discovered during the course of the proceedings.
In this context, on 18 April 2018, the Tribunal identified and listed the following issues for determination as preliminary issues in the proceedings:
DR 200 of 2017
Does the development approval granted by the respondent on 19 December 1989 authorise the current use of the applicant's land?
DR 379 of 2017
Is the proposed use of the applicant's land capable of approval pursuant to the City of Rockingham Local Planning Scheme No. 2?
I will address each of the preliminary issues in turn, after setting out the agreed facts and findings based on Mr Castle's uncontested evidence, and referring to the applicable principles in relation to the interpretation of development approvals.
Facts
The parties filed the following statement of agreed facts dated 25 July 2018 (agreed facts):
1.The Shire of Rockingham Statutory Town Planning Scheme No 1 was gazetted on 24 July 1975 (TPS1).[1]
[1]Agreed Bundle document 2.1.
2.TPS1 was revoked upon the gazettal of the City of Rockingham Town Planning Scheme No 2 on 19 November 2004 (TPS2).[2]
[2]Agreed Bundle document 2.2.
1981 Building licence
3.On 4 June 1981, the Applicant (together with Linda Marion Castle) became the registered proprietor of Lot 1207 (no. 225A) Doghill Road, Baldivis (Lot 1207)[.][3]
[3]Diagram 94652 showing previous Lot 1207 is located at Appendix 1 to Agreed Bundle document 1.2.
4.By application dated 19 October 1981 the Applicant sought a building licence to construct a new brick and steel building comprising a shed, office, store, toilet and shower on Lot 1207 for a use described on the application form as ‘Shed and store area’ (Shed).[4]
[4]Agreed Bundle document 3.1.
5.The plans lodged with the application for the building permit were prepared by Rockingham Design and Drafting and described as ‘Drawing No 8110-3’ (1981 Plans).[5]
[5]Agreed Bundle document 3.1.
6.The Respondent granted a building licence to construct the Shed in accordance with the 1981 Plans on or around 4 November 1981.[6]
[6]Agreed Bundle document 3.1.
7.Neither party has identified any record of the contemporaneous development approval for the Shed.
8.The Shed was built by about February 1982[,] but not in the approved location shown in the 1981 Plans.[7]
[7]The 1981 Plans show the Shed was to be set back 86m from Doghill Road and 21m from the southern side boundary of Lot 1207. The Shed has been built set back approximately 107m from Doghill Road and 51m from the southern boundary.
9.Since its completion, the Shed has been used by the Applicant as a workshop.
1989 Approval
10.By letter dated 12 October 1989, the Applicant advised the Respondent that he wished to apply for approval to operate a ‘mobile repair business’ from the Shed. In the letter the Applicant stated that the ‘mobile repair business’ had been ‘operating for 10 years’ and that ‘we repair mainly agricultural machinery from the surrounding district’.[8]
[8]Agreed Bundle document 3.2.
11.Lot 1207 was zoned ‘Rural’ under TPS 1 and ‘Industry Rural’ was a ‘P’ use in that zone.
12.By letter dated 15 November 1989, the Respondent advised the Applicant, among other things, that he should lodge an application for planning consent for the existing development.[9]
[9]Agreed Bundle document 3.5.
13.On 1 December 1989 the Respondent received from the Applicant an application for approval of ‘[…] [E]xisting workshop as per plans supplied to be used for the repair of agricultural machinery’ (1989 Application)[10].
[10]Agreed Bundle document 3.6.
14.The plans submitted with the 1989 Application were the 1981 Plans for the Shed. [11]
[11]Agreed Bundle documents 3.8, 3.9.
15.On 19 December 1989 the Council of the Respondent granted approval to commence development described as follows:
Seeking approval for an Existing Workshop for the Repair of Agricultural Machinery – Lot 1207 Doghill Road, Baldivis. [12]
[12]Agreed Bundle documents 3.10 3.14.
16.The approval was subject to a number of conditions, including:
‘4.The use of the workshop being limited to the maintenance, repair and servicing of plant or equipment used for rural purposes in the locality only.’
(1989 Approval).
Amalgamation of Lots
17.During January 1998, Lot 1207 was amalgamated with other land owned by the Applicant to form Lot 200 (No.225) Doghill Road, Baldivis (Lot 200) being the land comprised in Certificate of Title Volume 2124 Folio 681[13].
[13]Appendix 1 to Agreed Bundle document 1.2 is a copy of Certificate of Title, Volume 2124 Folio 681 and Diagram 94652.
18.Lot 200:
(a)has a total area of 5.7579 hectares;
(b)is zoned ‘Rural’ under TPS2; and
(c)contains a single house, a number of sheds, including the Shed and other structures on the eastern portion and vacant land on the western portion.
Application for Development Approval
19.By Application dated 29 August 2017[14], the Applicant sought development approval under TPS2 for a ‘Rural Workshop’ on Lot 200 involving ‘a workshop, office, shed and shelters’ (Application).
[14]Agreed Bundle, document 1.1.
20.In the Rural Zone under TPS2:
(a)Industry - Rural[15] is a ‘D’ use, meaning that it is not permitted unless the City has exercised its discretion by granting development approval; and
[15]Meaning “an industry handling, treating, processing or packing primary products grown, reared or produced in the locality, and a workshop servicing plant or equipment used for rural purposes in the locality”: TPS2, Schedule 1 [Agreed Bundle, document 2.3].
(b)Contractor’s Yard, [16] a Transport Depot [17] and a Motor Vehicle Repair Station are ‘X’ uses, being uses that are not permitted; and
[16]Meaning “premises used for the storage of contractor’s plant and equipment, including prefabricated or transportable buildings and materials”: TPS2, Schedule 1 [Agreed Bundle, document 2.3].
[17]Meaning “premises used for the garaging of motor vehicles used or intended to be used for carrying goods or persons for hire or reward or for any consideration; or for the transfer of goods or persons from one such motor vehicle to another of such motor vehicle and includes maintenance, management and repair of the vehicles used, but not of other vehicles”: TPS2, Schedule 1 [Agreed Bundle document 2.3].
21.The Application was submitted in ignorance of the 1989 Approval and therefore the accompanying submission stated that:
(a)that the Application sought ‘retrospective’ approval for the existing use;
(b)the Application was made ‘without prejudice’ to any existing use rights that may accrue to the land.[18]
[18]Agreed Bundle, document 1.2.
22.Thereafter, as a result of meetings and correspondence between the parties, the Applicant provided further details of the activities which are being carried out on Lot 200 and which he proposes to [be] carried out on Lot 200 in the future.[19]
[19]These interactions are documented in the Agreed Bundle, documents 1.3 to 1.7.
23.The Respondent refused the Application on or about 9 November 2017.[20]
[20]Agreed Bundle, document 1.8 and 1.9.
The Activities Being Carried Out and Proposed to be Carried Out on Lot 200
24.The activities the Applicant currently carries out and which he proposes to carry out on Lot 200 comprise:
(a)the servicing of plant and equipment including, but not limited to[,] farm equipment, tractors, mowers/conditioners, bale wrap machines, seeding equipment (combines), loaders, excavators, bulldozers, scrapers and stump grinders, articulated trucks and grain and fertilizer trucks which are all said by the Applicant to be ‘commonly used for rural purposes’[21]; and
[21]See Agreed Bundle, document 1.5, page 1.
(b)the storage on Lot 200 of plant and equipment that has been or will be serviced and or repaired prior to the same being on-sold or donated[22]; and
[22]The [A]pplicant has advised that this plant and equipment will be stored in open-air storage, within an area south-west of the workshop as specified on the plan attached to the Applicant’s letter of 20 February 2018 and which has an area of approximately 0.639ha. See Agreed Bundle, document 3.16.
(c)the fabrication of farm gates and stock yards, principally as a training opportunity for apprentices, which are not sold but, rather, are used solely on the Applicant’s Serpentine farm.[23]
[23]Currently estimated at 5% of the Proposed Use: Agreed Bundle, document 1.7, page 1.
(Activities)
25.The Applicant says that since 1981 he has carried out the Activities on Lot 200 (prior to amalgamation, Lot 1207). The Respondent says that it lacks sufficient information to either agree or disagree.
26.To the extent that other activities were also previously carried out on Lot 200[,] that no longer occurs. For the purposes of the preliminary issues the Respondent agrees that the Activities (read with Mr Castle’s witness statement of 19 July 2018) reflect the current use of Lot 200 for which development approval is sought (if not authorised by the 1989 Approval).
27.The Applicant says that before the 1989 Approval was brought to the Respondent’s attention in February 2018[,] the Respondent had not sought to enforce a geographical limit on the Activities, whether by enforcement of Condition 4 of the 1989 Approval or otherwise. The Respondent says that it lacks sufficient information to either agree or disagree.
28.The Applicant says that at no time has the Respondent complained or otherwise advised the Applicant that the activities being carried out on Lot 200 were causing adverse impacts. The Respondent says that it lacks sufficient information to either agree or disagree.
29.The Applicant has advised that the plant and equipment maintained, repaired and/ or serviced on Lot 200 is ‘predominantly of a rural nature, or used in rural context (such as building dams)’ or ‘commonly used for rural purposes’ or ‘almost exclusively used for rural purposes’.[24]
[24]Agreed Bundle, document 1.2, p4; 1.5, pages 1-3.
30.That includes plant and equipment used[:]
(a)for the production of gravel used in road making in rural areas (crushers; screens; loaders; dump trucks);
(b)for the making and clearing of dams, the clearing of fence lines (excavators; dump trucks);
(c)for the loading of fertiliser (loaders); and
(d)for the removal of rocks, the removal of fallen trees etc (dump trucks).
31.The Applicant has also advised that at present, and to the extent that it is possible to estimate such matters, of the plant and equipment repaired and/ or serviced on Lot 200:
(a)60% is owned and used on farms owned or operated by entities controlled by the Applicant situated at:
(i)Serpentine (approximately 13 km from Lot 200);
(ii)Chittering (approximately 100 km from Lot 200);
(iii)Ferguson (approximately 130 km from Lot 200);
(iv)Narrogin (approximately 140 km from Lot 200); and
(v)Boyup Brook (approximately 180 km from Lot 200),
with 50% of that usage occurring at Serpentine and the balance spread over the other properties.[25]
[25]Agreed Bundle, document 1.5, pages 1-3.
(b)30% is used on properties owned or controlled by its customers of which:
(i)10 are presently located in Baldivis, Oldbury, Mardella, Hopelands, Serpentine and Keysbrook (all of which are located within a radius of less than 20km from Lot 200); and
(ii)6 are located in more remote locations;
(c)10% of the plant and equipment is donated to Tanzanian rural communities under the Empower Project Tanzania.
32.The Applicant has reduced this to tabular form as follows:
Local Use %
Remote Use %
Total %
Applicant’s customers
21
9
30
Applicant’s own farms
30[26]
30[27]
60
Donations
0
10
10
Total
51
49
100
[26]The Serpentine farm.
[27]The Applicant’s other four farms.
Further to paragraphs 13 to 16 of the agreed facts, the instrument of development approval granted by the Council on 19 December 1989 is Attachment A to these reasons.
As stated at paragraph 26 of the agreed facts, the City agrees, for the purposes of the preliminary issues, that the activities set out at paragraph 24 of the agreed facts, read with Mr Castle's witness statement of 19 July 2018, 'reflect the current use of [the site] for which development approval is sought (if not authorised by the 1989 Approval)'.
Mr Castle's witness statement of 19 July 2018 was admitted into evidence and Mr Castle was not required for crossexamination.
Mr Castle arranged for an aerial photograph to be taken of the part of the site on which plant and equipment has been stored. Mr Castle identified on the aerial photograph certain items of plant and equipment with eight reference numbers. In his witness statement, Mr Castle describes each of those items of plant and equipment, how long it has been at the site and the reason why it is at the site. The aerial photograph with Mr Castle's notations is Attachment B to these reasons.
Item 1 identified by Mr Castle are three crushers owned by Castle Equipment Pty Ltd (Castle Equipment), a company of which Mr Castle is a director, which are used 'to produce gravel for road making in rural Western Australia'. The crushers have been stored at the site for approximately 18 months (at the date of the witness statement) and 'are awaiting a range of repairs including fitting of new manganese liners, installation of conveyor belts and electrical rewiring' and they 'are also awaiting servicing'.
Item 2 is an excavator owned by Mt Ferguson Grazing Co Pty Ltd (Mt Ferguson Grazing), a company of which Mr Castle is also a director, 'customarily used' on rural properties at Boyup Brook and Serpentine 'for dam cleaning and fence line clearing'. The excavator has been stored on the site for approximately six months (at the date of the witness statement) 'pending completion of the rebuilding of its engine'.
Item 3 is an excavator owned by Castle Equipment which is 'used for dam cleaning and fence line clearing' and has been stored at the site for approximately three months (at the date of the witness statement) 'pending repair of its "slew motor"'.
Item 4 is a loader owned by Mt Ferguson Grazing used on its Narrogin and Boyup Brook farms 'for loading fertiliser and lime'. It has been stored on the site for approximately three months (at the date of the witness statement) 'pending replacement of its engine'.
Item 5 is a loader owned by Castle Equipment which is customarily stored and used on Mt Ferguson Grazing's Narrogin farm, where it is used for 'gravel production at gravel pits in the locality and has also been used to clear away fallen trees on the Narrogin property damaged by storms'. It was brought to the site approximately three months prior to the witness statement to be used in the removal of surplus equipment from the site and is stored on the site 'for an engine rebuild and general servicing'.
Item 6 is an articulated dump truck owned by Castle Equipment used on Mt Ferguson Grazing's Ferguson Valley and Serpentine farms for 'removal of rocks, clearing storm damaged trees and on contracts … for gravel production'. It has been stored at the site for approximately six months (at the date of the witness statement) 'during which time a full rebuild including of the cab has been undertaken which is almost complete'.
Item 7 is a screen owned by Castle Equipment which has recently been sold 'conditional upon refurbishing and repainting'. It has previously been used for 'gravel production for use in rural locations and is destined to continue to be used for that purpose'. The screen was brought to the site approximately 18 months prior to the date of the witness statement 'for refurbishing with the intention of an ultimate resale'.
Finally, item 8 is a roller owned by Castle Equipment which is permanently stored at the site 'for the convenience of local Authorities for making and repairing roads'. The roller 'has been hired to the City of Rockingham for road works'.
Applicable principles in relation to interpretation of development approvals
In Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88 (leave to appeal refused: City of Swan v Snowdale Holdings Pty Ltd [2016] WASC 260 (Chaney J)), Senior Member Mr Peter McNab provided the following helpful and learned summary of the leading authorities in relation to the proper interpretation of development approvals and their conditions at [13][19]:
13It is convenient to commence with a general review of the approach taken by courts and tribunals to the construction of planning approvals, particularly historical planning approvals.
14In Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 5; [2007] QPELR 334 (Serenity Lakes Noosa), Wilson DCJ (as his Honour then was) adopted, at [6], the following general principles in the interpretation of planning approvals (internal citations omitted):
(a)where a planning approval is ambiguous, it should be construed in a manner which places the least burden on the land owner;
(b)if a condition is imposed which restricts an approval, it should be expressed fairly;
(c)in construing an approval, the search is not for what the Council may have intended or what, if it had been interrogated about various possibilities, it would have said it intended; each approval must speak according to its written terms, construed in context but having regard to its enduring function;
(d)it has long been recognised that use rights are determined from the approval itself, which may include other material by express or necessary implication;
(e)the nature and extent of any approved development must be determined by construing the document of approval, including any plan or other document which it incorporated, aided only by that evidence admissible in relation to construction which establishes or helps to establish the true meaning of the document as the act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council;
(f)in construing an approval a Court is not dealing with an Act of Parliament and an overly technical approach is not called for. The words should not be scrutinised in the same way as words used by the parliamentary draftspersons;
(g)extrinsic evidence, in the form of expert evidence, may be admissible to explain technical terms. This may extend to explaining the nature of the site so that the impact and meaning of a condition can be understood; and
(h)extrinsic evidence is also admissible to understand the physical state of the land at the time of the approval. This may include identification of things like existing vegetation and specific features referred to by the conditions.
15These principles have often been cited and followed in Queensland. For a recent example, see: Kin Kin Community Group Inc v Sunshine Coast Regional Council [2010] QPEC 144.
16For Victoria, a broadly similar approach is taken: see Vestey v Warrnambool City Council [2008] VCAT 963; (2008) 160 LGERA 204; (Bell J) (Vestey).
17The position in this State is, generally speaking, the same: see, for example, AAA Egg Company Pty Ltd and Shire of Gingin [2013] WASAT 149 (AAA Egg Company) applying, in particular, Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 (Allandale Blue Metal).
18On the difficulties that might sometimes arise in this State with respect to planning approvals made under historically narrow use class categories see, for example: Lynch and Town of Victoria Park [2014] WASAT 162 and Perth Vet Emergency Pty Ltd and City of Stirling [2013] WASAT 204.
19In the New South Wales Court of Appeal in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498, Mason P (Stein and Giles JJA agreeing) said, at [37] [41]:
How then is the language of an historical consent to be construed? In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 77 Kirby P (with whom Samuels JA and Hunt AJA agreed) referred to 'what, objectively determined, it might be said the Council meant by the permission which it gave to the ... predecessor [in title]'. I respectfully agree, but with this emphasis. The search is not for what the Council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. As an instrument having [certain] characteristics … it must speak according to its written terms, construed in context but having regard to its enduring function …
Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 is the locus classicus in relation to characterising the purposes of an existing use. It has also been applied to the issue of determining the scope of an extant development consent, which is a species of existing use rights … In Shire of Perth, Kitto J (at 535) distinguished between 'the precise manner of use for [the identified] purpose' and 'use generally for that purpose. ... The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities ... but by asking what, according to ordinary terminology, is the appropriate designation for the purpose being served by the use of the premises at the material date'.
Drawing upon this and other decisions, Kirby P stated the following three propositions in North Sydney Municipal Council Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 (at 59) [Boyts]:
1.Defining the 'existing use' depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ.
2.Nevertheless, the general approach to be taken is one of construing the 'use' broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question.
3.In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided.
These liberal principles apply notwithstanding recognition that 'neighbourhoods change' (ibid).
In Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310311, McHugh JA said:
... a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions and processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land ...
The foregoing cases were concerned with the activities of a particular business or industry or with activities of a common kind. But I see no reason why the principle upon which those decisions were based is not also applicable to a case where land is used for activities, processes or transactions of widely differing kinds. If the activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then that genus may properly be regarded as describing the purpose of the use of the land. If they are not, then it may be that the only conclusion is that the land has been used for more than one purpose.
…
The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later.
The following statement by Wilmer LJ in the English Court of Appeal in Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240 at 245 is also apposite in relation to the interpretation of conditions forming part of development approvals:
But I do not think that the words used by a local authority in imposing conditions are to be scrutinised in the same way as the words used by a parliamentary draftsman. It seems to me that conditions imposed by a local authority, like by-laws, should be benevolently construed … The duty of the court, as I see it, is to give a meaning to the words used, if that is at all possible, and the burden is, in my judgment, on those alleging uncertainty to satisfy the court as to the uncertainty complained of.
The principles stated by Wilmer LJ in this passage have been referred to with approval by the Supreme Court of Western Australia (City of Swan v Investments (WA) Pty Ltd [2011] WASC 17; (2011) 181 LGERA 228 at [18] (Blaxell J)), the Supreme Court of Victoria (Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works (1972) 30 LGERA 333 at 351 (Pape J)) and the New South Wales Land and Environment Court (Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51 at 56 (Holland J)).
Does the development approval granted by the Council on 19 December 1989 authorise the current use of the site?
Mr Craig Slarke, counsel for the City, submits that:
… the current use falls outside the 1989 approval because it does not comply with condition 4. The primary reason it does not comply with condition 4 is that the plant and equipment maintained, repaired or serviced are not used for rural purposes in the locality only. In fact, most of the items which go through the workshop are not used in the locality.
(ts 39, 9 August 2018)
As indicated earlier, condition 4 of the development approval granted on 19 December 1989 states as follows:
4.The use of the workshop being limited to the maintenance, repair and servicing of plant or equipment used for rural purposes in the locality only.
Referring to the discussion of '[t]he concept of the locality in town planning' in Ridge City Holdings Pty Ltd and City of Albany [2006] WASAT 187 at [42], Mr Slarke submits that the words 'the locality' in condition 4 of the development approval:
… should be understood in the way that the locality is understood in a planning context, that is, the area … which affects or is affected by the development, and the fact that the concept of locality is flexible does not mean that it is incapable of being understood or applied through a condition of approval.
(ts 45, 9 August 2018)
Mr Henry Jackson, counsel for Mr Castle, submits that the current use of the site is not in breach of condition 4 of the development approval, properly construed. Mr Jackson submits that the reference to 'the locality' in condition 4 is 'inherently ambiguous' and 'uncertain' and that 'the respondent's preferred construction of the DA gives an absurd result' and leads to 'impossible scenarios' (ts 18, 9 August 2018). In particular, the 'absurd results' and 'impossible scenarios' suggested by Mr Jackson include:
… for example, if the applicant which owns its own properties around the place was to take a piece of machinery that’s 12 years old and has never been used either for rural purposes or in the locality and uses it once on its own farm, then would that allow the equipment to be repaired?
You could have the situation where two customers arrive at the same time with exactly the same piece of machinery, and one can be accepted and one cannot. In a planning sense, the activities, the use, the effect, everything is the same. …
(ts 18, 9 August 2018)
Mr Jackson therefore submits that:
The words [']in the locality['] ought to be severed because they are uncertain. … [T]he phrase can be given no sensible meaning.
(ts 18, 9 August 2018)
For reasons which follow, in my view, the current use of the site is not authorised by the development approval granted on 19 December 1989, because a substantial proportion of the plant and equipment which is maintained, repaired and/or serviced at the site is not 'used for rural purposes in the locality only' (emphasis added), in breach of condition 4 of the development approval. For reasons which follow, I do not accept the submissions made for Mr Castle that the expression 'in the locality' in condition 4 is 'ambiguous' or 'uncertain' and 'can be given no sensible meaning', or that is has 'absurd results' or involves 'impossible scenarios' (although I do not accept the City's submission as to the meaning of the expression 'in the locality' in condition 4). The meaning of the expression 'in the locality' in condition 4 is quite clear. It is also quite clear that the current use of the site is in breach of condition 4, because a substantial proportion of the plant and equipment maintained, repaired and/or serviced at the site is not used for rural purposes 'in the locality'.
As indicated earlier, the City submits that the meaning of 'the locality' in condition 4 is as discussed by the Tribunal in Ridge City Holdings Pty Ltd and City of Albany at [42]. The Tribunal there determined as follows:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case. In the particular and somewhat unusual context of the Saddle of Albany, we accept Mr Adam's evidence that the locality relevantly encompasses each of the three localities to which he referred, as each are areas in which the height of the proposed development gives rise to town planning impacts.
The discussion of '[t]he concept of the locality in town planning' in Ridge City Holdings Pty Ltd and City of Albany at [42] was in the context and for the purposes of a planning assessment of a proposed development. However, the words 'the locality' in condition 4 of the development approval are used in a different context and for a different purpose than a planning assessment of a proposed development.
As Mr Slarke submits, the expression 'in the locality' in condition 4 is 'a term in this case borrowed from a … planning scheme text [use] class definition' (ts 45, 9 August 2018). In particular, at the time when the development approval was granted on 19 December 1989, the land use class 'Industry Rural' (which was a 'Permitted use' in the Rural zone under cl 3.3, cl 3.4 and Table No. 1 (the 'Zoning Table') of TPS 1) was defined under cl 1.12 of TPS 1 as set out in App D of the Town Planning Regulations 1967 (WA) (TP Regs) as follows:
"rural industry" means an industry handling, treating, processing or packing primary products grown, reared or produced in the locality, and a workshop, servicing plant or equipment used for rural purposes in the locality[.]
(emphasis added)
As Mr Slarke submits:
… condition 4 was plainly applied to ensure that the use was classified as and will remain a rural industry.
(ts 47, 9 August 2018)
Thus, the context and purpose of the use of the words 'the locality' in condition 4 of the development approval is to regulate the approved development and, in particular, to ensure that it continues to operate consistently with the second limb of the definition of the use class 'Industry Rural' under TPS 1. This is a different context and purpose to the discussion of '[t]he concept of locality in town planning' in Ridge City Holdings Pty Ltd and City of Albany at [42], which was a planning assessment of a proposed development.
As the New South Wales Court of Appeal held in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 (Mason P, Stein and Giles JJA agreeing) at [37] and [41]:
… an instrument [of development approval] … must speak according to its written terms, construed in context but having regard to its enduring function. …
The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later.
Furthermore, as Wilmer LJ said in Hall & Co Ltd v Shoreham-by-Sea Urban District Council at 245, 'conditions imposed by a local authority … should be benevolently construed …'.
The noun 'locality' is defined in The Macquarie Dictionary (6th ed, 2013) at page 867 as follows:
1. a place, spot, or district, with or without reference to things or persons in it. 2. the place in which a thing is or occurs … . 3. state or condition of being local or having place.
(emphasis by underlining added)
In terms of context, as indicated earlier, condition 4 reflects the wording of the definition of the land use class 'Industry Rural' in App D of the TP Regs, which, in its second limb, referred to 'a workshop, servicing plant or equipment used for rural purposes in the locality' (emphasis added). As also indicated earlier, I accept the submission for the City that 'condition 4 was plainly applied to ensure that the use was classified as and will remain a rural industry' (ts 47, 9 August 2018). The words 'in the locality' in condition 4 reflect the definition of the land use class 'Industry Rural' at the time the development approval was granted and are intended to ensure that the approved development will operate consistently with that land use definition. The expression 'in the locality' in condition 4 is therefore of significance in the development approval.
The significance of the words 'in the locality' in condition 4 is also underscored by the inclusion of the word 'only' at the end of that condition. The adverb 'only' relevantly means 'exclusively' (The Macquarie Dictionary, page 1028). The plant and equipment maintained, repaired and/or serviced at the approved workshop must therefore be used exclusively for rural purposes in the locality.
Furthermore, the requirement in condition 4 that, in order to be maintained, repaired and/or serviced at the site, plant or equipment must be 'used for rural purposes' in the locality only is also contextually relevant in determining the meaning of the expression 'in the locality'. The words 'used for rural purposes' suggest that the locality in question is the rural locality of which the site forms part.
In my view, construed according to its written terms, in context and having regard to its enduring function, and read in a fair but liberal manner, the words 'in the locality' in condition 4 of the development approval refer to the rural district in which the site is located. This is consistent with the grammatical, ordinary meaning of the expression 'in the locality' and the context to which I have referred.
Furthermore, in my view, the current use of the site is in breach of condition 4 of the development approval, because a substantial proportion of the plant and equipment which is maintained, repaired and/or serviced at the site is not used for rural purposes 'in the locality' only, that is, in the same rural district in which the site is located.
At paragraphs 31 and 32 of the agreed facts, Mr Castle advises that 'at present, and to the extent that it is possible to estimate such matters':
•60% of the plant and equipment repaired and/or serviced at the site is owned or operated by entities controlled by him and that half of this 60% is used at properties located between 100 kilometres and 180 kilometres from the site;
•30% of the plant and equipment repaired and/or serviced at the site is used on properties owned or controlled by customers and six out of 16 of the customers are located 20 kilometres or more from the site; and
•10% of the plant and equipment repaired and/or serviced at the site is donated to Tanzanian rural communities under the Empower Project Tanzania.
At paragraph 32 of the agreed facts, Mr Castle has helpfully reduced the foregoing analysis to 'tabular form' as follows:
Local Use %
Remote Use %
Total %
Applicant’s customers
21[28]
9[29]
30
Applicant’s own farms
30[30]
30[31]
60
Donations
0
10
10
Total
51
49
100
[28] Ten out of 16 customers within 20 kilometres of the site.
[29] Six out of 16 customers located 20 kilometres or more from the site.
[30] Mt Ferguson Grazing Co Pty Ltd's Serpentine farm.
[31] Mt Ferguson Grazing Co Pty Ltd's other four farms which are located in Chittering, Ferguson, Narrogin and Boyup Brook.
An activity conducted on land may or may not constitute a land 'use' as a matter of planning law and hence 'development' as defined in s 4(1) of the PD Act ('development means the development or use of any land …'). In particular, an activity which is properly characterised as merely incidental, ancillary or subordinate to a land use is not in itself a 'use' and hence 'development'. In 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, I discussed the law in relation to an incidental, ancillary or subordinate activity to a land use at [17]-[25] as follows:
17These provisions of LPS 17 give statutory expression and force to the established planning law concept that an incidental, ancillary or subordinate activity to a dominant land use is not in itself a land use requiring development approval, but rather is 'considered to be part and parcel of the primary use': Pacific Seven Pty Ltd v Knox City Council (1993) 11 AATR 325, 329 (Victorian and Civil Administrative Tribunal (Member H Gibson)) (Pacific Seven). The concept of incidental, ancillary or subordinate activity (often incorrectly referred to as 'incidental use' see below) has a wellrecognised meaning in planning law and is clearly used in that sense in cl 4.3.3 and the definitions of 'incidental use' and 'predominant use' in Pt A of Sch 1 of LPS 17.
18The leading Australian authority in relation to this concept is Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211; (1983) 51 LGRA 114 (Gibbs CJ, Murphy, Wilson & Brennan JJ agreeing).
19For some years, Mr and Mrs Lizzio supplemented their family income by selling flowers from their residential property in suburban Sydney. The flowers were grown by Mr and Mrs Lizzio and by their adjoining neighbour on their properties. Mr and Mrs Lizzio sold, on average, 55 to 60 bunches of flowers a week under a beach umbrella placed inside the front boundary of their property.
20The local authority brought civil enforcement proceedings in the New South Wales Land and Environment Court to restrain Mr and Mrs Lizzio from selling flowers from their property. The Land and Environment Court granted an injunction on the basis that selling flowers constituted a use of land for a prohibited purpose under the applicable planning scheme. Mr and Mrs Lizzio unsuccessfully appealed to the New South Wales Court of Appeal. They then sought and obtained special leave to appeal to the High Court of Australia.
21At each stage, Mr and Mrs Lizzio contended that their selling of flowers was not in breach of the planning scheme for two reasons. Their first reason was that it was 'merely incidental or subordinate to the use of the land for the purpose of a dwellinghouse, and was not distinct or separate therefrom, so that it remained true to say that the land was used only as the site of a dwellinghouse' (215; 115).
22The High Court addressed and rejected this argument as follows 216; 116 117:
The first argument, that the land was used for the purposes of a dwelling-house and nothing more, takes as its starting point the judgment of the Court of Appeal in Foodbarn Pty Ltd v Solicitor-General [(1975) 32 LGRA 157] where Glass JA said [161]:
'It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts.'
Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling-house. The question is one of fact and degree. Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision reached in the courts below that the use of the land in the present case could not be regarded as merely incidental to its use for the purposes of a dwelling-house. In those circumstances, some further remarks of Glass JA in Foodbarn Pty Ltd v SolicitorGeneral [161] become apposite:
'Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others …'
23It should be noted that although the terminology of 'incidental use' and 'ancillary use' is commonly adopted in the cases (and in planning schemes, such as LPS 17), as Member Gibson astutely observed in Pacific Seven 329, this terminology is incorrect:
It has always been recognised that land may be used for more than one use. Land can also be used for more than one activity. However, not all activities constitute separate uses in their own right. Sometimes activities will be ancillary or incidental to the primary use of the property, in which case they will not constitute a separate use but are considered to be part and parcel of the primary use. Whilst these are commonly termed 'ancillary uses', the word 'use' in this context is a misnomer. They are really activities which are an ancillary part of the primary use.
24This passage was endorsed by the Supreme Court of Victoria (Macauley J) in Ho v Greater Dandenong City Council [2012] VSC 165; (2012) 188 LGERA 424 [80].
25Finally, as the Supreme Court of Victoria (Teague J) held in Northcote Food Wholesalers Pty Ltd v Northcote City Council (1994) 84 LGERA 54, 67:
[T]here is no single test to determine dominant against ancillary, and that different criteria, themselves not readily susceptible of classification, perhaps relating to appearance or association, perhaps of a planning nature (like traffic or parking), perhaps of a monetarily quantitative nature (like revenue), perhaps of a geographically quantitative nature (like scale) are looked to as appropriate in the circumstances of each case.
In my view, applying these principles, although the 10% of plant and equipment repaired and/or serviced at the site which is donated to Tanzanian rural communities is not 'used for rural purposes in the locality' (emphasis added), as it will be used overseas, this activity is properly characterised as merely incidental or ancillary to the approved rural workshop land use, given its limited scale (constituting only about 10% of the total amount of plant and equipment maintained, repaired and/or serviced at the site) and that its purpose is charitable, rather than commercial. As this aspect of the workshop is merely an incidental or ancillary activity to the approved rural workshop land use, it is not a separate land 'use' and hence 'development'.
Similarly, in my view, the activity of the fabrication of farm gates and stock yards, principally as a training opportunity for apprentices, which is not sold, but, rather, is used solely on Mt Ferguson Grazing's Serpentine farm (paragraph 24(c) of the agreed facts), is properly characterised as an incidental or ancillary activity to the rural workshop land use, and not as a separate land 'use' and hence 'development', given its limited scale (estimated to be 5% of the current use of the site) and that it is not undertaken for a commercial purpose, but rather for apprentice training and use at the Serpentine farm.
However, paragraphs 31-32 of the agreed facts indicate that some 39% of the plant and equipment maintained, repaired and/or serviced at the site is used on Mr Ferguson Grazing's four farms which are located between 100 kilometres and 180 kilometres from the site or by customers who are located at least 20 kilometres from the site (collectively referred to in the table at paragraph 32 of the agreed facts as 'Remote Use %'). The Mt Ferguson Grazing farms located 100 kilometres to 180 kilometres from the site and customers' properties located 20 kilometres or further away from the site are not 'in the locality', that is, within the same rural district as the site, for the purposes and in breach of condition 4 of the development approval. Furthermore, 39% of plant and equipment maintained, repaired and/or serviced at the site is a substantial proportion of the current use of the site and is so significant in scale that it cannot possibly be characterised as an incidental or ancillary activity. Rather, the 'Remote Use' 39% of plant and equipment maintained, repaired and/or serviced at the site, which is not used 'in the locality', is a land use which is not authorised by the development approval, because it is in breach of condition 4.
It follows that the development approval granted by the Council on 19 December 1989 does not authorise the current use of the site.
Contrary to Mr Castle's submission, the interpretation of condition 4 at which I have arrived does not have 'absurd results' and does not create 'impossible scenarios' (ts 18, 9 August 2018). In relation to the first example referred to in Mr Jackson's oral submissions, if a twelveyearold item of plant or equipment is transported to and used for rural purposes on one occassions at Mt Ferguson Grazing's Serpentine farm and is thereafter intended to be used exclusively for rural purposes on that property or elsewhere in the rural district in which the site is located, then that item of plant or equipment is 'used for rural purposes in the locality only' and may therefore be maintained, repaired and/or serviced at the site under condition 4 of the development approval. On the other hand, if the same item of plant or equipment is transported to and used for rural purposes on one occasion at the Serpentine farm, but is thereafter intended to be used (for rural purposes) outside the rural district in which the site is located (whether exclusively or in part), or for non-rural purposes anywhere, then that item of plant or equipment is not 'used for rural purposes in the locality only' and may therefore not be maintained, repaired and/or serviced at the site in consequence of condition 4 of the development approval.
In relation to Mr Jackson's second example, it does follow from condition 4 that 'where two customers arrive at the same time with exactly the same piece of machinery [only one of which is used for rural purposes in the rural district in which the site is located], … one [that is, the one used for rural purpose in the same district as the site] can be accepted and one [that is, the other one] cannot'.
However, I do not accept Mr Jackson's submission that, in the examples have gave, '[i]n a planning sense, the activities, the use, the effect, everything is the same'. In his written submissions, Mr Jackson expressed the same point as follows:
[T]he limitation does not achieve any apparent planning purpose, because the activity being carried out the maintenance, servicing or repair of machinery remains exactly the same, regardless of where the plant or equipment is used.
I do not accept Mr Jackson's submission in this regard, because, as Mr Slarke submits, 'in a planning sense', the two activities, while involving the same piece of machinery, are not 'the same'. Rather, as Mr Slarke submits, the limitation in condition 4 as to the plant or equipment that may be maintained, repaired or serviced at the site being 'used for rural purposes in the locality only' reflects and achieves the following clear and relevant planning purposes:
… Its planning purpose or, in fact, purposes are evident and we say they are these. First, uses of an industrial nature or which involve mechanical repairs and the like are generally not permissible in rural zones and we can see that from the City's local planning scheme. Allowing a workshop to service plant or equipment used for rural purposes in the locality only provides an exception to that general rule.
The exception is justified by the rural purposes in the locality limitation. So it allows a convenient service for local clients and it is supportive of local rural activities. And its second purpose is that the limitation provides a natural cap both on the scale and the potential for expansion of a particular workshop use, and also on a number of rural workshops likely to be developed in a particular locality. So the rationale for that [natural] cap is both to minimise amenity impact but also and perhaps more importantly the strategic purpose of retaining rural land for rural purposes.
(ts 46-47, 9 August 2018)
Consequently, contrary to Mr Castle's submission, the limitation in condition 4 as to the plant and equipment that may be maintained, repaired and/or serviced at the site being 'used for rural purposes in the locality only' certainly has a planning purpose; indeed it has the dual planning purposes referred to by Mr Slarke.
In his written submissions, Mr Jackson also contends that the interpretation to which I have arrived 'would be remarkable and unreasonable', because:
… the limitation would pose a remarkable and onerous burden; the location at which equipment has been/is/will be used is information not ordinarily demanded from [sic-by] a service provider prior to agreeing to service machinery.
However, as indicated earlier, at paragraphs 31-32 of the agreed facts, Mr Castle advises (although subject to the proviso that it is 'to the extent that it is possible to estimate such matters') the percentage of the current use which is 'Local Use' as opposed to 'Remote Use'. I agree with Mr Castle's use of those terms at paragraphs 31-32 of the agreed facts. Although any demarcation of the area which is the same rural district in which the site is located is, to an extent, arbitrary, I consider that Mt Ferguson Grazing's four farms which are located 100 kilometres to 180 kilometres from the site and customers' properties located 20 kilometres or more from the site (collectively referred to by Mr Castle at paragraph 32 of the agreed facts as 'Remote Use') are not in the same rural district as the site. Clearly, Mr Castle is aware of the location at which plant or equipment maintained, repaired and/or serviced at the site is used. The limitation in condition 4 does not pose a 'remarkable' or 'onerous' burden.
Furthermore, the evidence indicates that Mr Castle has historically also been able to determine where plant and equipment maintained, repaired and/or serviced at the site is used. As indicated earlier, in the letter from Mr and Mrs Castle to the City dated 12 October 1989, they said '[w]e repair mainly agricultural machinery from the surrounding district' (emphasis added). Condition 4, as imposed by the Council on the grant of development approval when it was sought by Mr and Mrs Castle shortly thereafter, simply required them to continue to maintain, repair and service plant and equipment 'used for rural purposes in the locality only' or, as they expressed in their letter, 'from the surrounding district'.
Similarly, in the covering letter from Mr Underwood dated 30 August 2017 to the City enclosing the development application made on 31 August 2017, Mr Underwood states that 'through the 1980s business activities consisted almost exclusively for the repair and servicing of rural equipment in the Baldivis locality' (emphasis added) and that 'in the 1990s, the business expanded'. It appears that, whereas the use of the site was originally consistent with condition 4 of the development approval, in the 1990s the business expanded with the consequence that a substantial proportion of the current use of the site is now in breach of condition 4.
Finally, in relation to this aspect, as indicated earlier, Mr Jackson submits that condition 4 is 'inherently ambiguous'. Specifically, Mr Jackson submits that:
[T]he condition is unclear as to whether the phrase 'used for rural purposes in the locality only' qualifies the type of plant and equipment that is permitted to be 'maintained, repaired and serviced' in the workshop or whether it qualifies the individual items of plant and equipment to be maintained etc. in the workshop.
(original emphasis)
Mr Jackson also submits that, if the words 'in the locality' are not severed, then condition 4 should be interpreted so as to require that the maintenance, repair and servicing carried out by the workshop 'is limited to plant and equipment of a type used for rural purposes in the locality' (original emphasis).
However, for reasons set out earlier, the meaning of the expression 'in the locality' in condition 4 is not 'inherently ambiguous' and, indeed, is not ambiguous or uncertain at all. The expression qualifies the individual items of plant and equipment, not the type of plant and equipment that is permitted to be maintained, repaired and/or serviced at the site. There is no warrant or basis for interpreting condition 4 as referring to the type of plant and equipment, rather than to the actual plant and equipment. Much less so is there any warrant or basis to, in effect, read into condition 4 the words 'of a type' before the words 'used for rural purposes'. The meaning of condition 4 is clear according to its terms.
Furthermore, as Mr Slarke submits, the construction suggested on behalf of Mr Castle 'is not consistent with the evident planning purpose of the condition, because it undermines the locality restriction' (ts 49, 9 August 2018). In particular, as Mr Slarke submits:
The condition would cease to be a convenient repair service for local rural people, as an exception to the usual prohibition on that sort of use. Instead, it would become a repair business servicing clients from anywhere.
It would also no longer provide a natural cap on scale or demand, as the clients need not be local. There could be a regional or statewide catchment.
(ts 49, 9 August 2018).
Further, as Mr Slarke also submits, Mr Castle's proposed interpretation of condition 4 'ignores the fact that condition 4 includes the word "only"' (ts 49, 9 August 2019). Indeed, given that the word 'only' forms part of the condition and must be given effect, Mr Castle's submission that the condition should be read such that the words 'used for rural purposes in the locality' qualifies the type of plant and equipment that is permitted to maintained, repaired and/or serviced, would render the condition almost meaningless. Although individual items of plant or equipment may be used for rural purposes in the locality only, it is not apparent whether there is, or how one would identify, plant or equipment of a type used for rural purposes in the locality only.
The City also contends that the current use of the site is not authorised by the development approval for two other reasons. Although it is strictly unnecessary to determine these matters in order to answer the first preliminary issue, I will address them, because the determination of these contentions resolves other disputes between the parties as to the scope of lawful use of the site under the authority of the development approval.
The City's first additional reason as to why it contends that the current use is not authorised by the development approval is that, in the City's submission, Mr Castle's witness statement indicates that 'a substantial number of the items serviced or repaired [at the site] are not used for rural purposes[,] but are used for some other purpose', in breach of condition 4 (ts 40, 9 August 2018). In particular, Mr Slarke submits that the following items of plant or equipment are not used for 'rural purposes':
•a loader which has been used for gravel production at gravel pits in the locality, as well as having been applied to clearing away fallen trees on the Narrogin farm (item 5);
•an articulated dump truck which is used on contracts exterior to Mt Ferguson Grazing's farms for gravel production, in addition to being used for removal of rocks and clearing storm damaged trees on Mt Ferguson Grazing's properties (item 6);
•a screen which was previously used by Castle Equipment for gravel production for use in rural locations and is destined to continue to be used for that purpose by the purchaser (item 7); and
•a roller owned by Castle Equipment which has been hired by the City for roadworks (item 8).
Referring to Attwell and City of Albany [2009] WASAT 38; (2009) 61 SR (WA) 25 at [25]-[27], the City submits that:
Gravel is not a rural product, and the production of gravel (for road making or otherwise) is not use for a rural purpose.
In contrast, Mr Castle submits that:
[T]he use of machinery (plant or equipment) for the extraction of gravel is a 'rural purpose'. Certainly the use of machinery for the extraction of gravel for use in the construction of 'rural roads' ('gravel roads' rather than the asphalt or 'blacktop' commonly used within townships) can properly be described as a 'rural purpose'.
In Attwell and City of Albany, the Tribunal was called upon to decide whether laterite and limestone are 'rural products' in order to determine a preliminary issue as to whether the use of a rural property for block manufacturing for retaining walls (using laterite or limestone, obtained locally, with cement and water) constitutes 'an industry handling, treating, processing or packing rural products', within the meaning of the definition of the land use class 'industry-rural' for the purposes of the local planning scheme. In Attwell and City of Albany, I said the following at [25]-[27]:
25The adjective 'rural' is defined in The Macquarie Dictionary (Macquarie, Sydney, 4th Edition, 2005) at page 1241 as follows:
1. of, relating to, or characteristic of the country (as distinguished from towns or cities), country life, or country people; rustic. 2. Living in the country. 3. of or relating to agriculture: rural economy.
(original emphasis)
26The noun 'product' is relevantly defined in The Macquarie Dictionary at page 1135 as follows:
1. a thing produced by an action or operation, or by labour; an effect or result. 2. something produced; a thing produced by nature or by a natural process.
27While laterite and limestone are 'products', because they are something produced by nature or by a natural process, they are not relevantly 'rural' products. Rocks are not 'of, relating to, or characteristic of the country (as distinguished from towns or cities)'. The country/urban dichotomy suggested by the first definition of 'rural' set out earlier is simply not apposite in the case of rocks. Rocks are found both in the country and in urban areas. While, owing to potential adverse amenity consequences of extraction, such as dust and noise, excavated materials are usually obtained in country areas, rather than in urban areas, this is not always the case. Extractive materials are obtained in various parts of the Perth metropolitan region and in urban locations elsewhere, such as the 'Super Pit' in KalgoorlieBoulder. Clearly, also, laterite and limestone do not relate to agriculture.
Like laterite and limestone, gravel is not a 'rural' product, and the extraction or processing of gravel is not a 'rural' purpose, because gravel, and gravel extraction and processing, is not 'of, relating to, or characteristic of the country (as distinguished from towns or cities)'. Consequently, plant and equipment used for gravel extraction or processing is not 'used for rural purposes', within the meaning of condition 4 of the development approval, whether used in the locality or not.
As indicated earlier, Mr Castle submits that '[c]ertainly the use of machinery for extraction of gravel for use in the construction is "rural roads" ("gravel roads" rather than the asphalt or "blacktop" commonly used within townships) can properly be described as a "rural purpose"'. I agree that gravel roads are 'characteristic of the country (as distinguished from towns or cities)' and that a gravel road could therefore (subject to the terms of any applicable definition) be characterised as a 'rural road'. However, I do not consider that the use of machinery for the extraction or processing of gravel for use in the construction of 'rural roads' is, in itself, a 'rural purpose'. It is not a purpose 'of, relating to, or characteristic of the country (as distinguished from towns or cities)'. As observed in Attwell and City of Albany at [27], '[r]ocks [including gravel] are found both in the country and in urban areas' and '[w]hile, owing to potential adverse amenity consequences of extraction, such as dust and noise, excavated materials are usually obtained in country areas, rather than in urban areas, this is not always the case'.
Furthermore, plant and equipment used for making or repairing roads is not used for 'rural purposes', whether or not the road in question has a gravel surface or is located in a rural area. Making or repairing a road, where the road has a gravel surface and is located in a rural area, is not a purpose that is of, relating to, or characteristic of the country (as distinguished from towns or cities). The country/urban dichotomy suggested in the first definition of 'rural' is not apposite in the case of road making or repairing.
I accept Mr Castle's submission that plant or equipment, such as an excavator or articulated dump truck, which is used for removal of rocks, removal of storm damaged trees, dam cleaning or fence line clearing, is used for 'rural purposes'. However, the loader (item 5) has been used for such purposes on the Narrogin farm (which is not in the locality) and the articulated truck (item 6) is used on Mt Ferguson Grazing's properties not only in Serpentine, but also elsewhere (which are not in the locality).
As the loader (item 5), the articulated dump truck (item 6) and the screen (item 7) are used, at least in part, for gravel extraction or processing, they are not used 'for rural purposes … only'. Consequently, the maintenance, repair and/or servicing of these items of plant or equipment at the site is in breach of condition 4 of the development approval. The roller (item 8) is not used for 'rural purposes' at all and consequently its maintenance, repair and/or servicing at the site is in breach of condition 4 of the development approval.
The City's second additional reason as to why it contends that the current use of the site is not authorised by the development approval is that:
… the 1989 approval did no more than authorise … the use of the existing workshop in accordance with condition 4 together with necessary and reasonably ancillary storage, and the approval evidently did not authorise the development or use of the other structures on the site nor any extensive outdoor storage area.
(ts 40, 9 August 2018)
Moreover, the City submits that the storage of plant or equipment that has been or is intended to be maintained, repaired and/or serviced at the site for a period longer than about three months cannot be characterised as 'reasonably ancillary storage' and is therefore not authorised by the development approval. In particular, the City submits that the storage of the following items of plant or equipment is not reasonably ancillary storage and is therefore not authorised by the development approval:
•three crushers that have been stored at the site for approximately 18 months (item 1);
•an excavator that has been stored at the site for approximately six months (item 2);
•an articulated dump truck that has been stored at the site for approximately six months (item 6); and
•a screen that has been stored at the site for approximately 18 months (item 7).
It is common ground and plainly the case that the development approval does not authorise the construction of any of the structures that now exist on the site.
However, in relation to the use of the site as a workshop, Mr Jackson submits on behalf of Mr Castle that, on the proper interpretation of the development approval, the approved 'workshop' use (including ancillary storage) is not restricted to the shed. Mr Jackson points out that the development approval is stated to be in respect of 'Lot 1207 Doghill Road, Baldivis' and submits that:
What's [been] approved is a workshop. … But the approval isn't limited to … the use of a building within a larger land holding. An approval applies to the whole to the land as a whole.
(ts 14, 9 August 2018)
Mr Jackson also draws attention to the terms of conditions 2 and 3 of the development approval, which state as follows:
2.The premises being kept in a neat and tidy condition at all times by the owner/occupier, to the satisfaction of Council.
3.All signs associated with the development, including signs painted on the building, to be to the satisfaction of the City of Rockingham and approved prior to erection or painting.
(emphasis added)
Mr Jackson notes that condition 2 requires '[t]he premises being kept in a neat and tidy condition at all times' (emphasis added), rather than the workshop building or shed. Mr Jackson also notes that condition 3 contemplates signage 'associated with the development' being located outside the shed and expressly refers to 'signs painted on the building'.
In relation to storage of plant and equipment at the site, Mr Jackson submits that:
… But in terms of a construction of a condition where the permitted use is a workshop, it ought to be understood that equipment will be brought onto the site, and may stay there for some time while it is being repaired. There ought to be no arbitrary timeframes imposed. The matter is a matter for evidence in each case, and plainly long term storage, very long term storage would be a matter relevant to the question as to whether that particular piece of machinery is still there for purpose A or purpose B.
(ts 24, 9 August 2018)
Furthermore, in terms of the purpose of storage of plant and equipment at the site, Mr Jackson refers to the 'uncontradicted evidence' of Mr Castle that each of the items referred to in his witness statement 'has been stored there for the purposes of repair' (ts 25, 9 August 2018).
As can be seen on the instrument of development approval which is Attachment A to these reasons, the development approval describes the development which is approved as 'an Existing Workshop for the Repair of Agricultural Machinery Lot 1207 Doghill Road, Baldivis'. As can also be seen on the instrument of development approval, it is expressed in the following terms:
Approval to commence development in accordance with the Application dated 29th November 1989 and the attached Plans is granted subject to the following conditions: …
(emphasis added)
The 'attached [p]lans' are the building licence plans for the shed.
As indicated earlier, a development approval is to be interpreted in accordance with the following principles:
… an instrument [of development approval] … must speak according to its written terms, construed in context but having regard to its enduring function. …
The enduring nature of a development consent encourages a fair but liberal reading of the rights in confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later.
(House of Peace Pty Ltd v Bankstown City Council at [37] and [41])
Furthermore, as Wilmer LJ said in Hall & Co Ltd v Shoreham-by-Sea Urban District Council at 245, 'conditions imposed by a local authority … should be benevolently construed …'.
Applying these principles, in my view, on balance, the development approval restricts the carrying out of maintenance, repair and servicing of plant and equipment to generally occur within the shed (although ancillary storage of plant and equipment that is to be, or has been, maintained, repaired and/or serviced at the site may occur elsewhere on the land which formerly comprised Lot 1207), for the reasons which follow.
The noun 'workshop' is defined in The Macquarie Dictionary at page 1701 as having three meanings, the most apposite of which is:
1. a room or building in which work, especially mechanical work, is carried on (considered as smaller than a factory). …
Thus, a 'workshop' ordinarily refers to a physical structure in which work, especially mechanical work, is carried on.
Furthermore, I accept the City's submission that the development approval incorporates the building licence plans for the shed, because it grants '[a]pproval to commence development in accordance with the Application dated 29th November 1989 and the attached Plans' (emphasis added). The 'description of proposed development' in the 'Application dated 29th November 1989' is:
Existing workshop as per plans supplied to be used for repair of agricultural machinery[.]
The 'plans supplied' referred to in the development application and the 'attached [p]lans' referred to in the development approval are the plans of the shed. It appears that no other plans were lodged for the purposes of the development application.
In my view, on balance, although a 'workshop' use could potentially take place outside a 'workshop' structure and although the development approval states that it is in respect of 'Lot 1207 Doghill Road, Baldivis' and does not contain a condition expressly restricting the approved use to the shed, it is implicit in the development approval that it restricts the carrying out of maintenance, repair and servicing of plant and equipment to generally occur within the shed. This follows from the ordinary meaning of the word 'workshop', the statement in the development approval that it is granted 'in accordance with the Application dated 29th November 1989 and the attached plans', the description of the development for which approval was sought in the development application as '[e]xisting workshop as per plans supplied', and the plans referred to in the development application and development approval showing the shed only.
While a 'workshop' use could potentially take place outside a 'workshop' structure, in my view, it is generally implicit in granting development approval for a 'workshop' that the work carried out in the workshop is generally to take place within a 'workshop' structure. This is because the word 'workshop' ordinarily refers to a physical structure in which work is carried on and because a structure is likely to mitigate the environmental and amenity impacts of the work that is carried on (such as noise and odour).
The reference to 'Lot 1207 Doghill Road, Baldivis' in the development approval is simply identifying the property address. It does not mean that the maintenance, repair and servicing of plant and equipment can take place anywhere on that property.
It appears from the assessing officer's report to the Council in relation to the development application that conditions 2 and 3 were 'standard conditions' (rather than conditions drafted specifically in relation to the development application), because the officer recommended that the Council should grant development approval subject to a condition which became condition 4 and 'Standard Conditions D1, D7 and D28'. Furthermore, and in any case, the reference to '[t]he premises' in condition 2 is simply to the area in which the development approval authorises the approved use to take place. It does not expand that area. Although condition 3 does contemplate signage outside the shed, it requires further approval from the Council before any signage associated with the approved development may be erected or painted. The condition does not have the effect that maintenance, repair and/or servicing of plant and equipment can take place anywhere on Lot 1207.
In relation to storage, as Mr Jackson submits, Mr Castle has given uncontradicted evidence that each of the items that he refers to in his witness statement has either been maintained, repaired or serviced at the site or is intended to be maintained, repaired or serviced at the site. I also accept Mr Jackson's submission that the development approval 'ought to be understood [in a manner] that equipment will be brought onto the site, and may stay there for some time while it is being repaired' (ts 24, 9 August 2018).
However, it appears that some items of plant or equipment which were stored on the site at the time of Mr Castle's witness statement, while intended to be maintained, repaired or serviced, were stored at the site for considerable periods without actually being worked on during that time.
Although, as Mr Jackson submits, any set period of time for storage is 'arbitrary', I accept Mr Slarke's submission for the City that:
… [A] period of 3 months pending repair is at the outer limit of what can reasonably be described as storage ancillary to the 'Rural Workshop'.
Given the size and nature of plant and equipment used for rural purposes, I consider that it may well take up to about three months after an item of plant or equipment is brought to the site for maintenance, repair and/or servicing, for that item to be scheduled for work and for any necessary parts to be sourced. Furthermore, given the size and nature of plant and equipment used for rural purposes, it may well take a period of a couple of months for an item to be able to be transported from the site to another rural property for use. In my view, therefore, storage of plant and equipment at the site is only permitted as an ancillary or incidental activity to the approved workshop use for up to about three months before, and up to about three months after, the particular item of plant or equipment is being worked on for the purposes of maintenance, repair or servicing. Beyond about three months, in my view, storage of plant and equipment ceases to be ancillary to the use of the site as a workshop and becomes a separate and distinct use of land for storage.
Although the periods of time that items 1, 2, 6 and 7 have been stored at the site exceeds three months, I am unable to determine on the evidence whether these items were or were not being worked on during those periods. I am therefore unable to determine whether the storage of those items is or is not authorised by the development approval. However, if an item of plant or equipment is stored at the site for more than about three months before or after it is actually being worked on for the purposes of maintenance, repair or servicing, then the storage is not ancillary to the approved use and is not authorised by the development approval.
Furthermore, I am unable to determine on the evidence whether all of the items of plant and equipment stored on the site are located on the part of the site which formerly comprised Lot 1207. The development approval only applies to the part of the site which formerly comprised Lot 1207 and not to the part of the site which was amalgamated with Lot 1207 in January 1998.
Is the proposed use capable of developed approval under LPS 2?
Clause 3.2.1 of LPS 2 states as follows:
Table No.1 - Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme Area in the various zones. The permissibility of any uses is determined by cross reference between the list of Use Classes on the left hand side of the Zoning Table and the list of Zones at the top of the Zoning Table.
Table No. 1 Zoning Table (Zoning Table) in LPS 2 identifies eight land use classes which commence with the word 'Industry', namely 'Industry-General', 'Industry-General (Licensed)', 'Industry-Hazardous', 'Industry-Light', 'Industry-Noxious', 'Industry-Service', 'Industry-Extractive' and 'Industry-Rural'. In respect of the Rural zone, each of these land use classes, other than 'Industry-Extractive' and 'Industry-Rural', is designated in the Zoning Table by the symbol 'X'. Clause 3.2.2 of LPS 2 states that the symbol 'X' in the Zoning Table 'means a use that is not permitted by the Scheme', that is, it is a prohibited land use. In respect of the Rural zone, the land use class 'IndustryExtractive' is designated in the Zoning Table by the symbol 'A' (which, under cl 3.2.2 of LPS 2, 'means that the use is not permitted unless the local government has exercised its discretion by granting development approval after giving special notice in accordance with Clause 64 of the deemed provisions') and the use class 'IndustryRural' is designated in the Zoning Table by the symbol 'D' (which, under cl 3.2.2 of LPS 2 'means that the use is not permitted unless the local government has exercised its discretion by granting development approval'). Thus, in the Rural zone under LPS 2, 'IndustryExtractive' and 'IndustryRural' are discretionary uses which are capable of development approval under the Scheme (the former only after special notice is given).
Under cl 1.10.1 of LPS 2, the meanings of the land use classes 'Industry-Extractive', 'IndustryGeneral', 'IndustryLight' and 'IndustryRural' are set out in Pt 2 of Sch 1 of the Scheme as follows:
Industry–Extractive: means an industry which involves:
(a)the extraction, quarrying or removal of sand, gravel, clay, soil, rock, stone, minerals, or similar substance from the land, and includes the treatment, storage and management of those materials, or the manufacture of products from those materials on, or adjacent to, the land from which the materials are extracted;
(b)the production of salt by the evaporation of salt water.
Industry–General: means an industry other than a cottage, extractive, general (licensed), hazardous, light, noxious, rural or service industry.
Industry–Light: means an industry –
(a)in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality; and
(b)the establishment or conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services.
Industry–Rural: means an industry handling, treating, processing or packing primary products grown, reared or produced in the locality, and a workshop servicing plant or equipment used for rural purposes in the locality.
(emphasis added)
The term 'industry' is also defined under cl 1.10.1 of LPS 2 in Pt 2 of Sch 1 of the Scheme as follows:
Industry:means premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances and includes premises on the same land used for:
(a) the storage of goods;
(b) the work of administration or accounting;
(c) the selling of goods by wholesale or retail; or(d)the provision of amenities for employees, incidental to any of those industrial operations.
It is common ground and plainly the case that the proposed use does not fall within the definition of 'Industry-Extractive'.
The City submits that the proposed use:
•falls within the definition of 'industry'; and
•does not fall within the definition of the land use class 'Industry-Rural'; and, therefore,
•is properly classified under LPS 2 as either 'IndustryLight' or 'IndustryGeneral', which, as indicated earlier, are prohibited uses in the Rural zone.
It is common ground and obviously the case that the proposed use does not fall within the first limb of the definition of the land use class 'Industry-Rural' ('means an industry handling, treating, processing or packing primary products grown, reared or produced in the locality') in LPS 2.
Furthermore, Mr Jackson properly concedes that if (as I have determined earlier) the current use of the site is in breach of condition 4 of the development approval granted on 19 December 1989, then the proposed use (which is the same as the current use) does not fall within the second limb of the definition of the land use class 'Industry-Rural' ('a workshop servicing plant or equipment used for rural purposes in the locality'), as 'condition 4 of the 1989 approval reflects the second limb of the definition of ["I]ndustry[R]ural["]' (ts 28, 9 August 2018).
However, Mr Jackson submits that the proposed use is capable of approval under LPS 2, because it is properly classified as an innominate or unlisted use, 'best described as a "workshop"', under LPS 2. This is because, Mr Jackson submits, the proposed use does not fall within the definition of the term 'industry' and, hence, cannot be classified as 'Industry-Light' or 'Industry-General' under the Scheme. Under cl 3.2.4 of LPS 2, innominate or unlisted uses are capable of development approval if the City (or the Tribunal on review) determines that the proposed use is, or may be, consistent with the objectives and purposes of the relevant zone.
The preliminary issue as to whether the proposed use is capable of development approval under LPS 2 therefore turns on whether it falls within the definition of 'industry'. Mr Jackson, on behalf of Mr Castle, submits that it does not, for the following reasons:
In my respectful submission, plant and equipment doesn't fall within the definition of goods, products, articles, materials or processes. Plant and equipment is the stuff that forms the processes that manufactures, dismantles, assembles, treats, tests, services, maintains or repairs the goods, products, articles, materials or substances. …
(ts 29, 9 August 2018)
On behalf of the City, Mr Slarke submits that the proposed use falls within the definition of 'industry' for the following reasons:
The industry definition is cast very widely, not just by its use of goods, products and articles, but it also refers to materials or substances, both words having very wide meanings. And it captures the activities of manufacturing, dismantling, processing, assembling, treating, testing, servicing, maintaining and preparing. Again, a very wide, almost comprehensive list of activities.
So it can be accepted that the definition is deliberately cast in broad terms, both in relation to the activities it includes, but also the things which are the subject of those activities. So the result is that [while] not all goods, products or articles will be plant and equipment, all items of plant and equipment will be goods, products or articles.
(ts 59, 9 August 2018)
In my view, the plant and equipment which is proposed in the development application to be maintained, repaired and/or serviced at the site is captured by the words 'goods, products, articles, materials or substances' in the definition of 'industry'. As Mr Slarke submits, '[t]he industry definition is cast very widely' (ts 59, 9 August 2018). Indeed, the definition could scarcely have been drafted with a broader application in relation to the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repair of items.
The noun 'goods' (in the plural) is relevantly defined in The Macquarie Dictionary at page 639 as 'possessions, especially movable effects or personal chattels' and 'articles of trade; wares; merchandise, especially that which is transported by land'. The noun 'product' is relevantly defined at page 1171 as 'a thing produced by any action or operation, or by labour; an effect or result' and 'something produced; a thing produced by nature or by a natural process'. The noun 'article' is relevantly defined at page 77 with even more expansive effect as 'any thing'; see also GMF Contractors Pty Ltd v Shire of SerpentineJarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1 at [36].
In my view, the proposed use involves the maintenance, repair and servicing of possessions, especially moveable effects, and articles of trade (and hence 'goods'), things produced by labour (and hence 'products') and things (and hence 'articles').
In relation to Mr Jackson's submission, although it is correct that plant and equipment can be 'the stuff that forms the processes that manufactures, dismantles, assembles, treats, tests, services, maintains or repairs the goods, products, articles, materials or substances' (ts 29, 9 August 2018), plant and equipment can also constitute goods, products or articles which are the subject of servicing, maintenance or repair, within the meaning of the definition of the term 'industry' in LPS 2.
It follows that the proposed use is not an innominate or unlisted use under LPS 2 and that it is not capable of development approval under the Scheme, because it involves 'industry', as defined in the Scheme, and is prohibited in the Rural zone as it is properly classified as either 'Industry-Light' or 'Industry-General' under the Scheme. As both of these land use classes are prohibited in the Rural zone of LPS 2, it is unnecessary to determine whether the proposed use falls within the 'Industry-Light' land use definition or (if it is not 'Industry-Light') falls within the default 'industry' land use definition of 'Industry-General'.
Conclusion and Orders
I have determined that the development approval granted by the City on 19 December 1989 does not authorise the current use of the site, because a substantial proportion of the plant and equipment that is maintained, repaired and/or serviced at the site is not 'used for rural purpose in the locality only' (emphasis added), contrary to condition 4 of the development approval.
I have also determined that the use proposed in the pending development application (which is the same as the current use) is not capable of approval under LPS 2 on the site, because it is properly classified as either 'Industry-Light' or 'Industry-General' under the Scheme and is, therefore, a prohibited use in the Rural zone.
I therefore make the following orders:
1.The preliminary issues are answered as follows:
DR 200 of 2017
The development approval granted by the respondent on 19 December 1989 does not authorise the current use of the applicant's land.
DR 379 of 2017
The proposed use of the applicant's land is not capable of development approval pursuant to the City of Rockingham Local Planning Scheme No. 2.
2.The proceedings are listed for a directions hearing at 2.30 pm on 9 November 2018.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
ASSOCIATE
4 OCTOBER 2018
Attachment A
Attachment B
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