City of Swan v Snowdale Holdings Pty Ltd
[2016] WASC 260
•25 AUGUST 2016
CITY OF SWAN -v- SNOWDALE HOLDINGS PTY LTD [2016] WASC 260
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 260 | |
| Case No: | GDA:12/2015 | 8 APRIL 2016 | |
| Coram: | CHANEY J | 25/08/16 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | CITY OF SWAN SNOWDALE HOLDINGS PTY LTD |
Catchwords: | Town planning Direction to stop activities undertaken without planning approval Construction of existing planning approval Egg farm Eggs produced offsite processed on subject land Whether within scope of approval Large commercial egg production use Use of excess capacity on property Whether excess capacity irrelevant consideration Whether adequate reasons for decision granted |
Legislation: | Planning and Development Act 2005 (WA), s 214, s 214(2), s 255(1) State Administrative Tribunal Act 2004 (WA), s 77, s 105 |
Case References: | Camp v Legal Practitioners Complaints Committee [2007] WASC 309 Lourey v Legal Professional Complaints Committee [2012] WASCA 112 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88 Tamarix Pty Ltd v Greater Dandenong City Council [2011] VCAT 2182 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
and
IN THE MATTER of DR 117 of 2014 in the State Administrative Tribunal of Western Australia
- Appellant
AND
SNOWDALE HOLDINGS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR P McNAB (SENIOR MEMBER)
Citation : SNOWDALE HOLDINGS PTY LTD and CITY OF SWAN [2015] WASAT 88
File No : DR 117 of 2014
Catchwords:
Town planning - Direction to stop activities undertaken without planning approval - Construction of existing planning approval - Egg farm - Eggs produced offsite processed on subject land - Whether within scope of approval - Large commercial egg production use - Use of excess capacity on property - Whether excess capacity irrelevant consideration - Whether adequate reasons for decision granted
Legislation:
Planning and Development Act 2005 (WA), s 214, s 214(2), s 255(1)
State Administrative Tribunal Act 2004 (WA), s 77, s 105
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr H H Jackson
Respondent : Mr M N Solomon SC
Solicitors:
Appellant : McLeods Barristers & Solicitors
Respondent : Hotchkin Hanly Lawyers
Case(s) referred to in judgment(s):
Camp v Legal Practitioners Complaints Committee [2007] WASC 309
Lourey v Legal Professional Complaints Committee [2012] WASCA 112
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88
Tamarix Pty Ltd v Greater Dandenong City Council [2011] VCAT 2182
1 CHANEY J: The respondent (Snowdale) is in the business of farming chickens for egg production. One of its farms is located within the City of Swan at 65 Cheltenham Road, Bennett Springs (the land).
2 On 13 March 2014, the appellant (the City) issued a written direction to Snowdale pursuant to s 214(2) of the Planning and Development Act 2005 (WA) (PD Act). That section enables the City, where a development, or part of a development, is undertaken in contravention of a planning scheme, to give a written direction to the person undertaking that development to stop the development or that part of it undertaken in contravention of the relevant planning scheme. The applicable planning scheme in this case is the City of Swan Local Planning Scheme No 17 (LPS 17).
3 On 8 April 2014, Snowdale lodged an application to the State Administrative Tribunal (SAT) under s 255(1) of the PD Act for a review of the decision to give the direction under s 214. That application was heard by the tribunal and, on 19 August 2015, the tribunal delivered reasons setting aside the direction: see Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88. On 16 September 2016, the City lodged an appeal notice in relation to the tribunal's decision.
4 An appeal against the decision of the tribunal pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) can only be brought on a question of law and requires leave. On 16 December 2015, Corboy J directed that the application for leave to appeal was to be heard at the same time as the appeal.
Background facts
5 The land has been used for rearing poultry since before 1978 when the City's predecessor, the Shire of Swan, granted planning approval to construct a shed on the land for the purpose of rearing meat birds. Two other sheds existed on the land at the time.
6 In April 1989, the land was purchased by Snowdale. In 1993, Snowdale applied for planning approval to construct an additional shed on the land to house poultry.
7 On 22 September 1993, the City granted conditional approval for a further 'poultry shed (egg laying)' on the land. The conditions included condition 3, which was that the capacity of the poultry farm not exceed 'current bird numbers', and condition 4, which required Snowdale to confirm, upon request, the number of birds kept on the land. In October 1993, Snowdale advised the City that the number of chickens housed on the land was 24,000, and it is not in issue that the approved use of the land was limited to housing that number of birds.
8 In 2011, Snowdale applied for a retrospective planning approval for the poultry farm operations on the land (2011 Application). The development for which approval was sought was described in an attached report prepared by Allerding Associates, town planners (Allerding report). It is apparent from the Allerding report that the application for retrospective planning approval was made in response to notices issued by the City to Snowdale in relation to various developments on the land which had not been the subject of planning approval. There were 17 particular developments in respect of which approval was sought. One of those was '[a]pproval for the keeping of 90,000 birds as part of the poultry farm operations with sheds 1, 2, 3 and 4 being used to accommodate chickens'.
9 On 29 February 2012, the City granted conditional planning approval for a development which is described in the approval as 'construction of structures associated with existing poultry farm' (2012 Approval). The 2012 Approval read as follows:
Council, at its meeting held on 29 February 2012 resolved to grant retrospective approval to the construction of the associated buildings at the existing poultry farm subject to the following conditions:
(a) within 30 days from the date of this approval the owner shall submit to the City, to the satisfaction of the Principal Planner the following:
(i) a revised operational management plan outlining odour and dust mitigation measures associated with the new structures and ventilation system;
(ii) a report conducted by a qualified environmental consultant, with results from current nutrient testing, demonstrating that the land to the south of the subject site is not contaminated by typical nutrients found in poultry manure;
(iii) a water management plan;
(b) the sale of goods on the subject site shall be restricted to goods solely produced on site (including manure produced on the site).
10 A further condition required the submission of various documents to the City. That condition is not relevant for present purposes.
11 It was an agreed fact between the parties before the tribunal that the 2012 Approval effectively granted approval of the 2011 Application save for the increase in bird numbers. It was also agreed that, at the time of the 2011 Application and the 2012 Approval, sheds 2 and 3 were being used to house poultry and that egg sorting, grading and packing took place in a building identified in the 2011 Application as 'packing shed/grading room'.
12 The revised operational management plan was received by the City in December 2013, and the City advised Snowdale that the operational plan was to its satisfaction.
13 It was common ground that sheds 2 and 3 were not, at the time of the hearing before the tribunal, and are not subsequently, being used to house poultry. Shed 2 is used for the purpose of mechanically unloading eggs from egg trays. The eggs are then mechanically conveyed into the packing shed where they are graded and placed into cartons. The cartons are then placed in boxes in the packing shed. The boxes are placed on a conveyer and transported back to shed 2 where they are mechanically sealed with tape and manually placed on pallets.
14 Shed 3 is being used to store egg cartons, boxes and trays for packaging eggs.
15 Snowdale also has a poultry farm at lot 32 Douglas Road, Beermullah (Beermullah Farm). The Beermullah Farm produces approximately 95,000 eggs per day. All of those eggs are transported to the land for grading, sorting and repackaging. The eggs from Beermullah Farm are processed in shed 2 in the way described above. The egg cartons, boxes and trays stored in shed 3 are used to package the eggs from the Beermullah Farm and eggs processed on the land.
16 Snowdale sought a review by SAT of the conditions of the 2012 Approval and of the City's refusal to grant retrospective approval for the increase in bird numbers to permit 90,000 chickens to be housed on the land. On 20 December 2012, the review was allowed to the extent that condition (a)(ii) was deleted and an amendment was made to condition (c). The decision to refuse to grant retrospective approval in relation to the number of chickens was affirmed by the tribunal.
17 On 2 April 2012, the City issued Snowdale with a further written direction under s 214(2) of the PD Act requiring Snowdale to stop keeping more than 24,000 birds on the land. Snowdale sought a review of that direction by SAT. That application for review was resolved by a consent order made on 20 December 2012 whereby the direction was amended to require a staged reduction of the number of birds on the land so as to bring total numbers down to 24,000 by 31 December 2013. It is common ground that that direction was complied with.
18 The reduction in bird numbers meant that less sheds were required to house birds. It is common ground that, following the reduction in bird numbers on the land, Snowdale utilised shed 2 on the land, which had previously housed birds, to sort, grade and pack eggs, of which around 95,000 per day were produced at the Beermullah Farm. Shed 3, which had also previously been used to house birds, was used for the storage of packing materials.
19 On 13 March 2014, the City issued Snowdale with the direction which is the subject of these proceedings. The direction required the cessation, within 28 days, of 'the Development', which was described in the schedule of the direction as follows:
The Development
The use of a structure known as shed 2 for the purpose of a workroom, where the previously packaged cartons are palletised for transport; and
The use of a structure known as shed 3 to store a variety of new egg cartons, boxes and trays.
20 The contravention underlying the direction was said to be that the development (that is, the use of the two sheds for the purposes identified) was being carried out without approval under the relevant provision of LPS 17.
The parties' cases before SAT
21 In its written submissions before SAT, the City submitted that 'neither the 2012 Approval nor the earlier planning approvals approved the use of shed 2 for the packaging of eggs produced on site or large numbers of eggs delivered to the site from other locations'. The City also submitted that the earlier approvals, including the 2012 Approval, had not approved the use of shed 3 for the storage of packaging materials 'required to package eggs on site or eggs delivered to the site from other locations'.
22 The City submitted that, in order to construe the 2012 Approval, it was necessary to examine the 2011 Application, so that, in effect, the two documents must be read together. It was argued that uses of different buildings as described in the 2011 Application were incorporated in the 2012 Approval. That was a proposition rejected by the tribunal and one which is not now challenged in this appeal. Before SAT, the City submitted that the changes in use of the various sheds from that identified in the planning application constituted development which required approval which had not been obtained. It argued that the use as to which the sheds were being put was not incidental to the approved use of the land as a 'poultry farm'. The City's primary position was, therefore, that any use of shed 2 for packaging eggs or shed 3 for storage contravened the 2012 Approval. That position was consistent with the terms of the direction the subject of review.
23 At the hearing before SAT, counsel for the City, Mr Gillett, referred to the fact that processing of eggs from offsite was being undertaken. The senior member hearing the matter, Mr McNab, then sought to summarise the City's argument. The summary reflected the written submissions referred to above, but added 'and then you say the external arrival is, in any event, a separate and major change ...'. Mr Gillett agreed saying:
[O]ur submission is that that should not be considered part of the poultry farm operations on site because ... they're off site (ts 31).
24 Mr McNab's response was to identify an 'alternative case' being that the City was inviting the tribunal, if the City failed on its principal argument, to issue a direction 'about the external eggs'. Mr Gillett agreed that was the City's fall-back position, namely that the direction could be amended to say that shed 2 cannot be used for packaging or processing of the eggs from other sites, but can only be used to package eggs that are produced on the land.
25 Snowdale's submissions, not surprisingly, focused on the terms of the direction under review. It submitted that the direction did not discriminate as to the source of the eggs being processed and that it is wrong to seek to read the 2012 Approval as if it contained conditions of approval identified in selective parts of the Allerding report. Counsel for Snowdale, Mr McGowan, then turned to the alternative position which had emerged in the exchange between Mr Gillett and Mr McNab referred to above. He said:
And in relation to shed 2, as I say, the direction that we respond to, the direction that we come before the tribunal to seek to set aside is the principal argument which I note my friend does not resile from, that is, you cannot use shed 2 for the use to which it's presently put, full stop. And I've addressed you on that.
If, as now appears to be the case, there's some alternate argument to seek to either vary or maintain the direction on terms which was never exposed to us by notice of 13 March 2014, would require, with respect, a different direction. It's fundamentally different in its nature and, with respect, cannot be salvaged by seeking to qualify a direction when the nature of the argument being advanced is fundamentally different to the argument which underpins what is in the direction of 13 March 2014 (ts 42).
26 Mr McGowan submitted that it would be inappropriate for SAT to vary the terms of the direction to deal with externally sourced eggs because such a direction would be different in kind from that which was the subject of review. That position was consistent with Snowdale's written submissions to SAT. In written submissions filed before the hearing in SAT, Mr McGowan said:
Much is now made, it seems, of the fact that the sorting and grading operations undertaken on the Applicant's land includes eggs which are supplied from other operations by the Applicant at Gingin and Carabooda.
The position remains, however, and this is not an issue in this case, that those eggs are added to eggs which are produced on the Swan Valley farm and which are themselves, together with eggs from Gingin and Carabooda sorted and graded in the approved sheds at Swan Valley.
The Respondent seems to make much of the source of the eggs for the position now adopted.
It must be remembered that this application is to set aside the underlying direction of 13 March 2014 - see attachment 1 to the Application filed in the Tribunal on 8 April 2014.
Notwithstanding the agreed issues, in the end it is the direction as issued which is the subject of challenge in these proceedings.
That direction has nothing to do with the source of eggs but rather in each case seeks a complete ban on such uses in sheds 2 and 3. (original emphasis)
The tribunal's decision
27 After setting out the relevant statutory provisions, the senior member referred to the planning history of the subject land, essentially as described above, by reference to a letter from the City's solicitors to Snowdale's solicitors containing particulars relating to the terms of the direction. After setting out the planning history, those particulars continued:
Pursuant to the 1993 Approval, Sheds 2 and 3 can only be used for egg laying. That use was confirmed and re-approved by the City pursuant to the 2012 approval. The City has not approved the use of Sheds 2 and 3 for any purpose other than egg laying.
In view of the above, the use of Shed 2 for the processing, sorting and packing of eggs and the use of Shed 3 for the storage of packing materials is a contravention of clause 8.1 [LPS 17] (Scheme) because those uses are being carried out without your client first having applied for and obtained the planning approval of the City. That is the contravention of the Scheme upon which the directions issued by the City are based. As you are aware, a contravention of the Scheme is an offence under section 218(a) of the Planning and Development Act 2005 which carries significant penalties for corporate offenders.
28 The senior member then identified the issues in the review, as framed by the parties, as follows:
(1) Is the use of shed 2 for the use described at par 13 (of the agreed facts) lawful?
(2) Is the use of shed 3 for the purpose of storing packaging materials lawful?
29 Mr McNab then addressed the general principles applicable to the proper construction of a planning approval. The principles as outlined by him are not challenged in this appeal.
30 The senior member then examined the terms of the historical approvals and focused upon the 2012 Approval. He noted:
[28] The second approval, dated 29 February 2012, dealt with the 'construction of structures associated with [an] existing poultry farm' (2012 approval). In a short instrument of planning approval, retrospective and conditional approval was given to 'the construction of the associated buildings at the existing poultry farm'. With certain immaterial deletions or variations this approval was, by consent, affirmed in other review proceedings in this Tribunal: see the Tribunal's orders dated 29 December 2012. The approval does not expressly refer to the 2011 revised application, but does refer to a 'revised operational management plan'.
[29] Importantly, and focusing on the 2012 approval, none of the agreed facts or the material documents, on their face, appear to express a prohibition in the scope of approval as to land use, as is specifically reflected in the terms of the Direction. Whether such a result can be found by implication or by some other construction of the documents is considered further below.
31 The respondent's arguments, including the alternative position, were then outlined before the senior member undertook his analysis of the arguments. He rejected the City's primary submissions as to the scope and effect of the 2012 Approval. He found that the overall purpose of the 2012 Approval was focused upon regularising the development and use reflected in the actual physical structures erected on the land. He concluded that, whilst the proposal contained in the Allerding report suggested or implied that sheds 2 and 3 would be used for egg laying, those suggestions or implications were no more than an indication of the nature of the development, and were not incorporated in the subsequent approval. He gave two reasons for that conclusion:
[43] First, land use concepts deployed in planning law, including how such use is regulated by approvals, usually nowadays assume a level of generality. Thus, consistently with the authorities discussed above, Preston CJ could say in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400, at [27] and [36] (internal citations omitted), that:
'In planning law, use must be for a purpose. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued.
The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes …'
- Accordingly,
'… 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. [Boyts, at 59, emphasis added]'
[45] Indeed, such restrictions would and should ordinarily be found in properly formulated (and justified) conditions: cf the discussion on the conceptual nature of a planning condition found, for example, in Peter McNab and Matthew Goyder, 'The Nature and Validity of Conditions and the Grounds for Impugning Them', Australian Environmental Law Digest, June 2015, 3 - 10, at 4.
[46] Secondly, even if it be correct to say that Sheds 2 and 3 were sufficiently identified as 'Poultry Sheds' and that is the use for which those sheds were nominally approved pursuant to the 2012 approval, it does not automatically follow that Sheds 2 and 3 cannot lawfully be used for the packaging of eggs or the storage of related materials. Unless a prohibition or other restriction was clearly in place, some ambiguity would seem to arise as regards the extent of the use approval, given that the 2012 approval either assumes or, in effect, authorises (or both) a large commercial operation on 2.7 hectares, an operation connected with the production and supply of eggs.
32 It is important to notice the senior member's conclusion that the 2012 Approval assumes or authorises 'a large commercial operation on 2.7 hectares ... connected with the production and supply of eggs'.
33 The senior member then turned to the question of the process and packaging of eggs from offsite. He referred to the land use of 'animal husbandry - intensive' contained in the LPS 17 and various other definitions of 'poultry farming', including the definition in the Western Australian Planning Commission's State Planning Policy 4.3 Poultry Farms, which refers to a poultry farm as 'land and buildings used for rearing or keeping of poultry for breeding, commercial egg production or commercial meat production'. He continued:
[54] Plainly, having regard to the terms of the 2012 approval (particularly with its references to an 'existing poultry farm') in the context of the 2011 revised application and the relevant history of the site, the City was intending, to the extent necessary, to authorise or to confirm, as intensive animal husbandry, land use as a poultry farm on the scale indicated limited to commercial egg production (that is, not poultry for consumption) with some additional approved uses.
[55] It must therefore follow that the packaging of eggs, critical to their efficient, safe and hygienic transport and distribution, taking place in an approved physical structure or building on the subject land (a building not limited as to a specific use or function) is a necessary incident of extensive commercial egg production. Consequently, all steps ancillary to or reasonably connected with this process, including storage connected therewith; the grading and sorting, and the mechanical conveyance of the eggs, will be included within the authority of the 2012 approval.
[56] Such a result is consistent with the principle that land use decisions should be seen as operating 'at a level of generality' which is 'necessary and sufficient to cover the individual activities, transactions or processes carried on' and not in terms of the 'detailed activities, transactions or processes' themselves.
[57] The uncontradicted facts show that approximately 95,000 additional eggs arrive from an 'integrated' egg production (that is, pursuant to the internal commercial arrangements of Snowdale with respect to another of its poultry farms) in one or two truck movements a day. The submission of Mr McGowan was that the operator is taking advantage of some unused capacity flowing from the reduction in bird numbers on the subject land. There is no doubt that, on their face, such activities are or could be reasonably regarded in themselves as part of the cycle of 'commercial egg production' and that they are not either expressly or implicitly (on the analysis above) prohibited by the 2012 approval. (original emphasis)
34 The senior member then turned to the question of incidental use. He noted that in addressing an enquiry as to whether a use is incidental to an approved use (so that no separate planning approval is required), attention must be directed to the nature of the separate activity, its scale and the regularity and extent of the activities involved. After examining Tamarix Pty Ltd v Greater Dandenong City Council [2011] VCAT 2182 (Tamarix), a decision of the Victorian Civil and Administrative Tribunal which found that the sale of egg products, live chickens, chicken manure, bagged chicken feed, processed chicken meat and honey from the land in question were all ancillary to the use of the land as an egg farm, the senior member concluded that the additional egg production from eggs obtained offsite did not amount to a separate land use. He continued:
The nature of the site is as an approved commercial egg farm with unused production capacity, a fact that flows from the City's own decision to effectively reduce the number of birds on site. Making use of that extra capacity for additional egg production from a related entity is an ancillary, incidental or relevantly subordinate use of the land [63].
Grounds of appeal
35 The appeal notice filed by the City identified six grounds of appeal with extensive particulars. At the hearing of the appeal, the appellant was given leave to amend its grounds by substituting four grounds of appeal, which were as follows:
(1) That the Tribunal erred in law in that it took into account irrelevant considerations, specifically, the capacity of the Land to process and package eggs and the ownership of the eggs processed on the Land which were produced offsite.
(2) In the alternative to ground 1, that the Tribunal failed to exercise its jurisdiction in that it failed to have regard to all the facts and circumstances but, instead, proceeded on the assumption, for which there was no logical basis, that the relationship between the two uses did not change because the increase in the use of the land to process and package utilised existing excess capacity.
(3) That the Tribunal erred in law in that its decision was irrational, illogical or otherwise lacked an evident and intelligible justification in that:
(a) The capacity of the Land to process eggs and the ownership of the eggs was irrelevant to the relationship between the use of the land to produce eggs and the use of the land to process and package eggs and they were therefore unable to provide a logical basis on which to reach a conclusion as to the relationship between the two uses; and
(b) The Tribunal assumed that the relationship between the two uses of land remained unchanged if the intensification of the processing use was limited to the utilisation of unused excess capacity when there was no logical basis for that assumption.
(4) That the Tribunal erred in law in that it failed to provide reasons which complied with its statutory obligation pursuant to s 77 of the SAT Act.
36 Ground 3 was not separately addressed in either the City's written submissions or its oral submissions at the hearing. I assume that was because of the significant overlap between grounds 2 and 3. I propose therefore to deal with those two grounds together.
Leave to appeal
37 As noted above, leave to appeal is required. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave: Lourey v Legal Professional Complaints Committee [2012] WASCA 112 [28]; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 (Paridis). The applicant for leave must show that there is a real and significant argument to be put on a question of law, at least to the extent that there is sufficient doubt about it to justify the grant of leave. It may be necessary to show that to allow the error to go uncorrected would impose substantial injustice: Paridis [17].
38 Snowdale opposes the grant of leave. It submits that there is neither an error of law which could have affected the ultimate decision of the tribunal to set aside the direction, nor substantial injustice to the City if leave is refused. Snowdale observes, correctly, that the City does not now challenge the tribunal's conclusion that the processing of eggs, and the storage of materials associated with production, is within the terms of planning approvals obtained by Snowdale insofar as the processing and storage of materials relates to the eggs produced on the land. As a result, the City must accept that the direction, in its terms, must be set aside. The question would then be whether the tribunal should vary the direction so as to require the cessation of processing or storage related to eggs produced somewhere other than on the land (offsite eggs). Counsel for the appellant accepted that position, and suggested that, if the appeal were to succeed, the appropriate order would be for the court to remit the matter back to SAT to consider the variation to the direction.
39 The respondent submitted that the interests of justice do not require that the court, or SAT, vary the terms of the direction. It contended that, if the City's contention is that the processing of offsite eggs is a use not encompassed in any existing planning approval, then it is open to the City to issue a further notice requiring the cessation of that activity. The intervention of the court is not, Snowdale argues, necessary.
40 I do not accept that leave should be refused on the basis that it is open to the City to issue a fresh direction limited to stopping the use of land for processing offsite eggs. That is because SAT has already concluded that the processing of offsite eggs is incidental to the approved used of the land. Any further notice issued by the City would be inconsistent with that finding. The practical reality is that, if the City were to issue a further notice, Snowdale would immediately seek a review of that direction, and SAT would most likely set aside that direction on the basis of its earlier findings.
41 If there is merit in the City's grounds, then it is in the interests of justice that any error by SAT be corrected on appeal.
42 In order to consider the question of leave further, it is necessary to turn to the grounds of appeal.
Ground 1
43 Ground 1 asserts that SAT erred in law in taking into account irrelevant considerations, being the capacity of the land to process and package eggs and the ownership of the eggs processed on the land.
44 Where a statute confers a discretion which is in its terms unconfined, the factors that may be taken into account in the exercise of that discretion are similarly unconfined, except to the extent that the subject matter, scope and purpose of the statute conferring the discretion contain some express or implied limitation of the factors to which the decision-maker may legitimately have regard: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40.
45 The City's complaint in relation to ground 1 focuses on the references in par 63 of the reasons (which is set out above) to the site as being a 'commercial egg farm with unused production capacity' and to the '[m]aking use of that extra capacity for additional egg production from a related entity' in reaching the conclusion that the processing of eggs from offsite is an ancillary, incidental or relevantly subordinate use of the land. It contends that capacity for use is an irrelevant consideration in the assessment of the relationship between 'the two uses' for the purposes of ascertaining whether one is ancillary to the other.
46 The expression 'unused capacity' also appears in [57] of the reasons where the senior member referred to Mr McGowan's submission that the operator is taking advantage of some unused capacity flowing from the reduction in bird numbers. The senior member then said that '[t]here is no doubt that ... such activities are ... part of the cycle of "commercial egg production" '. That was an observation as to the nature of the activities and was not dependent on any question of capacity. Nor did counsel for Snowdale place any reliance on excess capacity as a basis for arguing that the use of the sheds for the purposes for which they are being used was within existing planning approvals. Having reviewed the transcript of the SAT hearing, I take the senior member's reference to Mr McGowan's submissions to be a reference to the following extract from the transcript:
So the operation at the time of the application in 2011 had 80-odd thousand birds. The effect of the consent orders required the then applicant, the present applicant in these proceedings, to reduce those numbers to 24,000 and that's what's done. So surprise - surprise - there is space in the sheds. So that-what has happened as a result is that space in the shed, at least in shed 3, has been taken up for storage purposes, and in relation to shed 2, that process is not new, that's referred to in 2011 application, but rather it's a larger section of shed 2 that's being used for that purpose (ts 37).
47 In my view, the City's submissions misconstrue the senior member's references to capacity of the land. The substance of the senior member's conclusion is found at [54] and [55] of his reasons. He concluded that the existing planning approvals encompassed 'use as a poultry farm on the scale indicated' for commercial egg production. He concluded that the processing of eggs 'taking place in an approved physical structure or building on the subject land ... is a necessary incident of extensive commercial egg production.' The subsequent references to unused production capacity amounted to no more than an observation that the activities on the land were within the approved scale of commercial egg production. Read in context, the senior member did not treat the 'unused capacity' of the land as a factor of his determination that the use of the land for processing offsite eggs fell within the scope of the existing approvals. He did not, therefore, impermissibly take into account factors personal to the applicant rather than proper planning considerations.
48 The same can be said in relation to common ownership of the eggs. The fact that the offsite eggs form part of Snowdale's egg farming operations, rather than being processing for the purpose of some third party's egg farming operation, was relevant to the question of whether what was being done on the land was part of Snowdale's approved use.
49 I do not consider that there is any merit in ground 1 of the appeal.
Grounds 2 and 3
50 Ground 2 asserts that the tribunal failed to exercise jurisdiction by proceeding on the assumption, for which there was no logical basis, that the relationship between the two uses did not change because the increase in the use of the land utilised existing excess capacity, and by failing to have regard to all facts and circumstances.
51 This ground, expressed as an alternative to ground 1, fails for the same reason as ground 1. It is based upon the same misconstruction of the significance of the comments by the senior member concerning 'unused capacity'. The City contends that 'the Tribunal appears to have proceeded on the basis that the relationship between the uses remain constant because the expansion utilised the existing capacity' (original emphasis). I do not accept that premise. That is not the basis upon which the conclusions expressed in [54] and [55] of the tribunal's reasons were based.
52 Once the tribunal reached the conclusion that the activities on the land fell within the permitted use of the land for a large scale egg production, no question on separate use in relation to offsite eggs arose. The City's submissions proceeded on the basis that there was an increase in the intensity of the processing and packaging use, which was previously 'incidental', and that it was thus necessary to identify criteria relevant to the relationship between the two uses. For reasons discussed under ground 1, that misconstrues the tribunal's reasons. The tribunal simply construed the scope of the 2012 Approval and found the activities on the land fall within that scope. It was not necessary to consider any further 'facts or circumstances'.
53 There is no merit in ground 2.
54 Ground 3 is also premised on the misconstruction of the tribunal's reasons as to the significance of the capacity of the land and the question of intensification of the use. It fails for that reason.
Ground 4
55 Ground 4 asserts the tribunal's failure to give reasons which complied with the statutory obligation pursuant to s 77 of the SAT Act. That section provides:
Reasons for final decision
(1) The Tribunal is to give its reasons for a final decision.
(2) Reasons that the Tribunal gives for a final decision have to include the Tribunal’s findings on material questions of fact, referring to the evidence or other material on which those findings are based.
56 The City's complaint in ground 4 is directed to those passages of the reasons under the heading 'Incidental Use', which are found at [58] - [63] of the reasons. The complaint is that, having correctly identified that enquiry as to incidental use must involve attention being directed to the nature of the separate activity, its scale and the regularity and extent of the activities involved, the senior member failed to undertake that process. Rather, he simply set out passages from the decision in Tamarix but did not explain how anything said in that decision was brought to account in his reasoning process. Reliance is placed on the statement by Jenkins J in Camp v Legal Practitioners Complaints Committee [2007] WASC 309 where her Honour said:
The Act does not elaborate on the requirement to give reasons in respect to questions of law affecting a decision. Therefore, I assume that the common law principles apply. That is, the reasons must be sufficient to give effect to the right to seek leave to appeal on a question of law. If the basis for the decision is not apparent, the losing party is unable to identify an error of law. It is essential that the reasons adequately disclose the intellectual processes that have resulted in the decision: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 441; Garrett v Nicholson (1999) 21 WAR 226 at 248 (Owen J); Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at 282 - 283.
Where a party is unable to appeal on questions of fact, it will not be so important for the Tribunal to disclose its intellectual processes that have led to its findings of fact. However, where, as in this case, there is a right to seek leave to appeal on a question of law, it is necessary for the Tribunal to disclose the legal principles which it has applied to the facts it has found [56] - [57].
57 It is necessary to read [58] to [63] of the reasons in the context of the reasons as a whole, and particularly [51] to [57], which appear under the heading 'External eggs and the packaging of eggs'. Paragraphs 54 to 57 make clear that the senior member considered, for the reasons which he explained, that the activities involving offsite eggs were part of the commercial egg production which was encompassed in the planning approvals which had been granted. Paragraphs 58 to 63 of the reasons are directed to an enquiry as to whether the facts and circumstances demonstrate that a separate use of the land was being undertaken such that the use could not be said to be incidental.
58 It is correct to say that the senior member did not explain the manner in which the various principles and concepts outlined in the passage from Tamarix which he set out in his reasons applied to the case before him. It is the case, however, that the principles explained were consistent with the view, which he had already expressed in his reasons, that the processing of offsite eggs fell within the approved use of the land for commercial egg production. That activity was 'incidental' in the sense that it formed an aspect of the approved use. The conclusion that none of the material before the tribunal suggested a separate land use did nothing more than restate the conclusions at [54] to [57] of the reasons. The case turned not on questions of separate use or dominant or subservient use, but on the scope of the 2012 Approval properly construed. The senior member's reasons adequately explained the conclusion that he reached. Even if he may have better explained his application of Tamarix to the facts of this case, that criticism does not amount to a failure to comply with s 77 of the SAT Act.
59 In my view, there was no failure by the tribunal to comply with the requirements of s 77 of the SAT Act, and ground 4 is without merit.
Conclusion
60 Having regard to my conclusions as to the merits of the grounds of appeal, and having regard to the fact that the primary basis upon which the direction was issued is no longer pursued by the City, so that the decision to set aside the direction was clearly correct, leave to appeal should be refused. The proceedings should be dismissed.
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