ECOGROWTH INTERNATIONAL PTY LTD and CITY OF SWAN

[2012] WASAT 109

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   ECOGROWTH INTERNATIONAL PTY LTD and CITY OF SWAN [2012] WASAT 109

MEMBER:   JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD:   8 MAY 2012

DELIVERED          :   8 MAY 2012

PUBLISHED           :  24 MAY 2012

FILE NO/S:   DR 405 of 2011

BETWEEN:   ECOGROWTH INTERNATIONAL PTY LTD

Applicant

AND

CITY OF SWAN
Respondent

Catchwords:

Town planning ­ Preliminary issue ­ Whether use is capable of approval ­ Business producing and distributing organic fertiliser ­ Land use classification ­ Whether use is classified as 'Industry ­ Rural' or 'Industry ­ General' ­  Whether organic fertiliser is a 'rural product' ­ Whether 'Industry ­ Rural' includes the handling, treating, processing or packing of organic fertiliser ­ Words and phrases: 'rural products'

Legislation:

City of Swan Local Planning Scheme No 17
Planning and Development Act 2005 (WA)

Result:

Proposed use is properly classified as 'Industry ­ General'

Category:    B

Representation:

Counsel:

Applicant:     Mr RJ Nash

Respondent:     Mr CA Slarke

Solicitors:

Applicant:     AVA Legal

Respondent:     McLeods Barristers & Solicitors

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

Attwell and City of Albany [2009] WASAT 38

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Ecogrowth International Pty Ltd sought development approval to carry out a business that involves handling, treating, processing and packing organic fertilisers.  Development approval was refused by the City of Swan on the basis that the proposed land use was properly classified 'Industry ­ General', a use not permitted within the site's zoning.  Ecogrowth International Pty Ltd sought review of this decision by the Tribunal.

2. The parties identified a preliminary issue in the proceeding, namely, whether the proposed development of fertiliser production is properly classified as 'Industry ­ Rural', and is therefore capable of approval, or as 'Industry ­ General', and is therefore not capable of approval.  'Industry ­ Rural' relevantly means 'an industry handling, treating, processing or packing rural products'.

3. Following the hearing on the preliminary issue, the Tribunal gave an oral decision.  The Tribunal's consideration of the preliminary issue turned primarily on the meaning of the expression 'rural products', and whether the proposed use of fertiliser production was a use in which the primary inputs, or ingredients, could be classified as 'rural products'.  The Tribunal determined that the key components of the organic fertiliser, which included granulated rock dust and liquid soil improvers, were not 'rural products'.  The Tribunal also determined that, while the organic fertilisers produced at the site are distributed for agricultural uses, including orchards, horticulture, biological cropping and viticulture, they are also used for non­agricultural purposes, such as on turf, grass and home gardens, and that there is nothing inherent in the product, in terms of its composition or in the way in which it is packaged and distributed, precluding it from, or making it less likely to be used for, non­agricultural purposes.  The Tribunal therefore determined that organic fertiliser is not a 'rural product'.

4. The Tribunal determined that the proposed use of fertiliser production is not properly classified as 'Industry ­ Rural', but rather is classified as 'Industry ­ General'. 

5. The Tribunal's reasons, taken from the transcript and edited in minor respects for clarity, were as follows.

Introduction

1. The following preliminary issue has been identified by the parties for determination by the Tribunal:

   Whether the proposed development of fertiliser production is properly classified as:

   a)'Industry ­ Rural', and is therefore capable of approval under the City of Swan Local Planning Scheme No 17 (LPS 17); or

   b)'Industry ­ General', and is therefore not capable of approval under LPS 17.

2. Since around 2004, Ecogrowth International Pty Ltd (Ecogrowth) has carried on a business in one of the buildings formerly used for winery purposes at No 55 (Lot 100) Benara Road, Caversham (site) involving the preparation and distribution of various fertiliser products.  In 2009, Ecogrowth applied to the City of Swan (City or Council) for development approval for its use of the site under LPS 17 on the basis that the development is properly classified as 'Industry ­ Rural' under LPS 17.

3. The land use 'Industry ­ Rural' is defined in LPS 17 to mean:

   (a)an industry handling, treating, processing or packing rural products; or

   (b)a workshop servicing plant or equipment used for rural purposes.

4. The parties agree that the use carried out by Ecogrowth is an 'industry'.  They disagree as to whether it is properly classified as 'Industry ­ Rural' under LPS 17.  Ecogrowth contends that its use is properly classified as 'Industry ­ Rural' within the meaning of para (a) of the definition of that land use.  In contrast, the City contends that the use does not fall within the terms of para (a) of the definition of 'Industry ­ Rural'.  The parties agree that if the use is not properly classified as 'Industry ­ Rural', then it is classified as 'Industry ­ General', which is a prohibited use.

5. However, Ecogrowth has foreshadowed that if the Tribunal finds that the proposed use is 'Industry ­ General' under LPS 17, Ecogrowth wishes to have the opportunity to consider its position in relation to another preliminary issue it may seek to raise.

Background

1. The application for development approval was accompanied by a letter by Statewest Surveying and Planning dated 7 August 2009 which describes the use in more detail.  The land use is described on page 2 of the letter as follows:

   Eco Growth [sic] mixes and bags organic soil enhancers for distribution to rural properties, including swan valley [sic] vineyards and City of Swan Landscapers.  Soil improvers are delivered to the site in bulk, where they are mixed together and repackaged in 1000kg bags.  No manufacturing occurs on site.

2. Later, the letter states that:

   The business receives very few visitors and customers as they do not retail to the public.

3. The letter explains that Ecogrowth deals with two main products, namely:

   1)granulated mineral rock dust mixed with biological components; and

   2)A variety of liquid soil improvers combining numerous elements with emphasis on organic inputs such as liquid fish, liquid kelp, Liquid humates and liquid vermihumus.

4. The rock mineral product is obtained from a production plant in Queensland and arrives in 20 tonne containers.  The use does not involve any heavy machinery other than a conveyor belt and mixing machine.  The soil improvers are organic in nature and therefore do not produce any significant odours.

5. The letter also states as follows:

   The fundamental objective of Eco Growth [sic] is to provide soil enhancer products that are non­leaching and sustainable for agriculture generally and horticulture, targeting orchards, vineyards and plantations in particular.  Eco Growth products encourage a complete departure from all chemical inputs for agriculture.  In addition to agriculture their products are increasingly used for sports grounds and by Local Councils (including the City of Swan) in public areas.

   The fundamental objective of the business is to provide environmentally sustainable products.  In producing these products the actual land use is operated with the same fundamental objectives, in a manner that avoids any activity that would cause pollution or degradation of the area. (Emphasis original)

6. The parties agree that the business carried on by Ecogrowth:

   (a)involves handling, treating, processing and packing organic fertilisers;

   (b)produces two main types of organic fertilisers (soil enhancers), being:

   (i)granulated mineral soft rock dusts mixed with biological components; and

   (ii)liquid soil improvers combining numerous elements with emphasis on organic inputs such as liquid fish, liquid kelp, liquid humates and liquid vermihumus; and

   (c)does not use heavy machinery other than a conveyor belt and mixing machine.

7. The site is zoned Swan Valley Rural under LPS 17.  As contemplated in the terms of the preliminary issue for determination, in that zone, 'Industry ­ Rural' is a 'D' (discretionary) use, whereas 'Industry ­ General' is an 'X' (not permissible) use.

8. On 27 October 2011, the City refused to grant development approval for the proposed use for the following reasons:

   1.The existing business 'Eco Growth', applied for 'Rural Industry' under Local Planning Scheme No. 17, is more appropriately defined as 'Industry General'.

   2.'Industry General' is a "Use Not Permitted' within the "Swan Valley Rural Zone" applicable to the subject lot.

9. Ecogrowth also presented evidence from its director, Mr Augustus Bysterveld, who was not required for cross­examination.  Mr Bysterveld gave evidence confirming that Ecogrowth's business carried on at the site:

   … comprises of handling, treating, processing and packaging of organic fertilisers, predominantly for use of rural properties, including Swan Valley Vineyards.

Consideration of preliminary issue

1. Mr CA Slarke, appearing on behalf of the City, contended that the proposed use does not fall within the definition of the use class 'Industry ­ Rural' for three reasons.

2. Firstly, Mr Slarke submitted that the inputs or the ingredients used within the development are not rural products.  As noted earlier, the key ingredients on the evidence are granulated mineral rock dust and liquid soil improvers, such as liquid fish, liquid kelp, liquid humates and liquid vermihumus.

3. The Tribunal considered the meaning of the expression 'rural products' in Attwell and City of Albany [2009] WASAT 38 (Attwell), at [25] ­ [35]. At [25], the Tribunal set out the dictionary meaning of the adjective 'rural' from The Macquarie Dictionary (4th ed, 2005), which includes 'of, relating to, or characteristic of the country (as distinguished from towns or cities)' and 'of or relating to agriculture'.  At [26], the Tribunal set out the definition of the noun 'product' from The Macquarie Dictionary, which includes 'something produced'.

4. The inputs in the process referred to earlier are not something produced of, or relating to, or characteristics of the country (as distinguished from towns or cities), or of or relating to agriculture.  While granulated mineral soft rock dusts and organic inputs such as liquid fish, liquid kelp, liquid humates and liquid verihumus may be or may include primary products, they are not rural products. 

5. Mr RJ Nash, appearing on behalf of Ecogrowth, submitted that, for the purposes of the definition of 'Industry ­ Rural', it does not matter what the inputs are, and, in particular, it does not matter whether the inputs in a process are not themselves rural products, provided that the outcome of the process involves the creation of a rural product.  Mr Nash referred to the example of winemaking, which involves chemical inputs that are not rural products. 

6. However, as Mr Slarke submitted, the focus of the definition of 'Industry ­ Rural' is the inputs and what is done with the inputs.  A use cannot fall within the meaning of para (a) of the definition unless it involves an industry 'handling, treating, processing or packing rural products'.  The inputs themselves must be, or at least must substantially be, rural products to satisfy the definition.  In the case of a winery, the primary inputs are rural products, namely, grapes.  While chemicals may also be used, that additional input does not remove the winery from being an industry handling, treating, processing or packing rural products.  A winery, as pointed out at [32] of Attwell, is properly classified as 'Industry ­ Rural' because it is 'an industry … processing … rural products'.  That, however, is not the case in relation to the proposed use by Ecogrowth, because the key components of the proposed use are not rural products.

7. Secondly, Mr Slarke submitted that an industry in which the inputs are not, or at least not substantially, rural products, cannot fall within the definition of 'Industry ­ Rural', even if the end product of the industry is a 'rural product'.  Mr Slarke submitted that this is the case because the focus of the definition is on what is done with the inputs.  Neither party indicated a practical example of a circumstance in which an industry handling, treating, processing or packing products that are not, or at least not substantially, rural products, produces a product that is a rural product.  I am satisfied that the second argument presented by Mr Slarke is correct, given the focus of the definition.

8. Thirdly, Mr Slarke submitted that, even if it were possible for an industry in which the inputs are not, or are not substantially, rural products, to produce a rural product, the organic fertilisers that are handled, treated, processed and packed at the site are not 'rural products'.

9. However, Mr Nash submitted that the organic fertilisers handled, treated, processed and packed on the site are 'rural products' for essentially three reasons.

10. Firstly, the organic fertilisers are, of their nature and character, agricultural in the sense that they pertain to the cultivation of land.  Secondly, and moreover, Mr Nash submitted that, on the basis of Mr Bysterveld's evidence, the organic fertilisers are 'predominantly for use of rural properties'.  Thirdly, Mr Nash submitted that the organic fertilisers are not deprived of their nature and character merely because they can be used in urban areas and for urban purposes, such as gardens or sports fields.

11. The evidence before the Tribunal, in addition to Mr Bysterveld's evidence, includes extracts from Ecogrowth's website.  The extracts show that the organic fertilisers handled, treated, processed and packed at the site are used not only for agricultural purposes, including orchards, horticulture, biological cropping and viticulture, but also for turf, grass and home gardens.  Moreover, the evidence shows that certain of the products that are recommended on Ecogrowth's website for use for agricultural purposes are also recommended and sold for non­agricultural purposes and, in particular, for use on turf, grass and home gardens.  These products are distributed through a number of garden businesses in the Perth region and landscaping businesses elsewhere.

12. Further, as Mr Slarke submitted, although currently the Ecogrowth business predominantly produces its fertilisers for use of rural properties, as Mr Bysterveld said in evidence, that may potentially change in the future, given that there is nothing inherent within the nature of the product, in terms of its composition or in the way in which it is packaged and distributed, precluding it from, or making it less likely to be used for, non­agricultural purposes.  Further, as the letter from Statewest Surveying and Planning on behalf of Ecogrowth to the City pointed out:

    In addition to agriculture their products are increasingly used for sports grounds and by Local Councils (including the City of Swan) in public areas.

13. It is trite to observe that planning law is concerned with use of land rather than the identity of the user.  Moreover, planning approvals run with the land and are not personal to the applicant for approval.  The question for determination is whether the proposed land use is properly classified as 'Industry ­ Rural', rather than 'Industry ­ General', not the manner in which a particular business operates that land use. 

14. I find that, on the evidence presented, organic fertiliser is not a 'rural product'; meaning that it is not something produced of, or relating to, or characteristic of the country (as distinguished from towns or cities), or of or relating to agriculture.  The conclusion may well be different if there were something about the nature of the product, or the way in which it is packaged and distributed, which would reasonably preclude it from being used for any purpose other than an agricultural purpose.  However, on the evidence, that is not the case.

Conclusion

1. For these reasons, I consider that the proposed use of the site for the handling, treating, processing and packing of organic fertilisers does not fall within the meaning of para (a) of the definition of 'Industry ­ Rural', and I therefore find that the proposed use is properly classified as 'Industry ­ General'.

Orders

1. The Tribunal makes the following orders:

   1.The proposed development of fertiliser production is properly classified as 'Industry ­ General' under the City of Swan Local Planning Scheme No 17 and is therefore not capable of approval.

   2.The proceeding is adjourned to a directions hearing before the senior member at 11.30 am on 1 June 2012 to enable the applicant to consider its position.

I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE D R PARRY, DEPUTY PRESIDENT