Galati & Anor and City Of Rockingham

[2007] WASAT 198

GALATI & ANOR and CITY OF ROCKINGHAM [2007] WASAT 198

Last Update :07/08/2007

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 198
Published:
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:80/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR D R PARRY (SENIOR MEMBER)	Delivered:	03/08/2007
No Pages:	17	Judgment Part:	1 of 1
Result:	Preliminary issue answered: "Yes, except for the sale of nursery plants, provided that the retail items additional to those listed in that part of the Additional Use column of Sch No 2 of the City of Rockingham Town Planning Scheme No 2 which apply to Lot 299 Kerosene Lane, Baldivis are an incidental use to the retail sale of fruit and vegetables"
Category:	B

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : GALATI & ANOR and CITY OF ROCKINGHAM [2007] WASAT 198 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 3 AUGUST 2007 FILE NO/S : DR 80 of 2007 BETWEEN : ANTONINO GALATI

PASQUALINO VINCENZO GALATI
Applicants

AND

CITY OF ROCKINGHAM
Respondent

Catchwords:

Town planning – Development application – Retail sale of meat, frozen foods, groceries and nursery plants – Preliminary issue – Whether proposed development is capable of approval – Standard or requirement – Whether specification of goods that may be sold by retail in site­specific additional use provision in planning scheme is definitional of permissible land use or is a standard or requirement which may be varied – Whether principles relating to non-conforming/existing uses are relevant to land use classification under a planning scheme

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Legislation:

City of Rockingham Town Planning Scheme No 2, cl 3.2.1, cl 3.3.1, cl 4.20.1
Planning and Development Act 2005 (WA), s 238(3), s 252(1)
State Administrative Tribunal 2004 (WA), s 60(2)

Result:

Preliminary issue answered: "Yes, except for the sale of nursery plants, provided that the retail items additional to those listed in that part of the Additional Use column of Sch No 2 of the City of Rockingham Town Planning Scheme No 2 which apply to Lot 299 Kerosene Lane, Baldivis are an incidental use to the retail sale of fruit and vegetables"

Category: B

Representation:

Counsel:

Applicants : Mr DH Solomon
Respondent : Mr DF Nicholson

Solicitors:

Applicants : Solomon Brothers
Respondent : McLeods

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

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15
Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105
North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50
O'Donovan and Town of Vincent [2005] WASAT 120
Parramatta City Council v Brickworks Limited (1972) 128 CLR 1
Re Shire of Mundaring; ex parte Solomon & Ors [2007] WASCA 132

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Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Shire of Perth v O'Keefe & Anor (1964) 110 CLR 529
Spectator Investments Pty Ltd and City of Joondalup [2005] WASAT 299

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The Council raised a preliminary issue as to whether a development application for approval to sell meat, frozen foods, groceries and nursery plants is capable of approval. The determination in this issue required an assessment as to whether a list of goods specified in a site-specific provision in a planning scheme is definitional of the only form of retailing permissible on the site, or is a standard or requirement which can be varied.

2 The Tribunal determined that the development application is capable of approval, except in relation to nursery plants, provided that the sale of the other items is restricted to an incidental use to a fruit and vegetable shop.

3 On the proper interpretation of the scheme, the list of goods in the site-specific provision is not definitional of a permissible type of land use, but rather regulates an aspect of a permissible land use, namely the range of goods that can be sold at the fruit and vegetable shop on the site.

4 However, the common characteristic of the goods listed in the site-specific provision, namely that they are all food items, indicates that the intention of the scheme is to restrict retailing on the site to food items. The terms of the scheme also indicate that its intention is to restrict retailing of non-fruit and vegetable food items to an ancillary use to the dominant use of the site as a fruit and vegetable shop.

Introduction

5 The City of Rockingham (City or Council) has raised a preliminary issue concerning whether a proposed development is capable of approval under the City of Rockingham Town Planning No 2 (TPS 2 or Scheme).

6 Mr Antonino Galati and Mr Pasqualino Vincenzo Galati (applicants) operate a retail shop known as the "Spud Shed" on their property at Lot 299, Kerosene Lane, Baldivis (site). On 19 December 2006, the applicants submitted a development application to the City for approval to sell meat, frozen foods, groceries and nursery plants at their shop. On 6 February 2007, the City refused the applicants' application on the basis that the proposed development is prohibited and incapable of approval under TPS 2. The applicants subsequently sought review by the Tribunal of the City's decision under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).

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7 The preliminary issue was listed for determination entirely on the documents in accordance with s 60(2) of the State Administrative Tribunal Act 2005 (WA). The parties filed the following documents for the purposes of the preliminary issue:

• Respondent's statement of preliminary issue (dated 12 April 2007 and filed 16 April 2007);

• Statement of agreed facts (dated 27 April 2007 and filed 30 April 2007);

• Bundle of agreed documents (dated 27 April 2007 and filed 30 April 2007);

• Respondent's submissions (dated 4 May 2007 and filed 9 May 2007);

• Applicants' submissions (dated 9 May 2007 and filed 9 May 2007);

• Respondent's submissions in response to applicants' submissions (dated 16 May 2007 and filed 16 May 2007);

• Applicants' submissions in reply to the respondent's submissions in response (dated 21 May 2007 and filed 22 May 2007);

• Applicants' supplementary submissions (dated June 2007 and filed 29 June 2007); and

• Respondent's supplementary submissions in response to the applicants' submissions dated 21 May 2007 and June 2007 (dated 5 July 2007 and filed 6 July 2007).

8 On 24 July 2007, Acting President Judge John Chaney formed the opinion under s 238(3) of the PD Act that the application is likely to raise complex or significant planning issues and listed the preliminary issue for determination by me.

Preliminary issue

9 The City has identified the following preliminary issue for determination:

"Does cl 4.20.1 of TPS 2 enable the Council to grant approval to the applicants' proposal to sell by retail items additional to

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those listed in that part of the Additional Use column of Sch No 2 of the Scheme which applies to the site?"

10 Clause 4.20.1 of TPS 2 states as follows:

"Except for development in respect of which the Residential Design Codes apply, if a development is the subject of an application for planning approval and does not comply with a standard or requirement prescribed under the Scheme, the Council may, notwithstanding the non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit."

11 The site is zoned "Development" under TPS 2. Clause 3.2.1 of the Scheme states that the "Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme Area in the various zones". The Zoning Table indicates that use class permissibility in the Development zone is to be determined with reference to the designations in the approved Structure Plan. There is no approved Structure Plan in relation to the site. However, cl 3.3.1 of the Scheme states as follows:

"Notwithstanding anything contained within the Zoning Table, the land specified in Schedule No.2 may be used for the specific use or uses that are listed in addition to any uses permissible in the zone in which the land is situated subject to the conditions set out in Schedule No.2 with respect to that land."

12 Schedule No 2 of TPS 2 identifies 23 sites to which cl 3.3.1 of the Scheme applies. The site which is the subject of these proceedings is site no 22 on Sch No 2.

13 The following is an extract from Sch No 2 as it applies to the site (with emphasis in bold added):

No.	Site Description	Additional Use	Special Conditions
22.	Lot 299 Kerosene Lane, Baldivis	(a) The retail sale of fruit and vegetables; and	The use of the land for the purposes referred to in paragraphs (a) and (b) shall conform to the following requirements:

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(b) The retail sale of eggs, bread, pastries, milk, cheese, poultry, preserves, confectionery, and non-alcoholic refreshments as an incidental use to the use referred to in paragraph (a).

(i) the floor area of any building or buildings used for that purpose shall not exceed 234m²; and

(ii) no goods other than those specified in paragraphs (a) and (b) shall be sold.

The use of the land for the purpose referred to in paragraphs (a) and (b) shall cease upon the land ceasing to be used for the purpose of a market garden.

The use of the land for the purpose referred to in paragraphs (a) and (b) is conditional on the preparation and adherence to a suitable traffic management plan

14 As I observed in relation to an identically worded provision to cl 4.20.1 of TPS 2 in Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15 at [56], the apparent purpose or object of the clause is to provide flexibility in the application of standards or requirements prescribed in the Scheme. The critical question in this case is whether the "requirement" in the Special Conditions column that "no goods other than those specified in paragraphs (a) and (b) shall be sold" is "a standard or requirement prescribed under the Scheme" within the meaning of cl 4.20.1 of TPS 2. If this requirement is a standard or requirement prescribed under the Scheme, then cl 4.20.1 provides flexibility in the application of the requirement and the Council, and the Tribunal on review, may

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approve the proposed development notwithstanding the fact that it involves the retail sale of goods other than those specifically listed in Sch No 2, provided that:
• it consults the affected parties and has regard to any expressed views where required by cl 4.20.2;

• it is satisfied of the matters set out in cl 4.20.3; and

• the retail sale of the goods proposed to be sold is an incidental use to the use of the site for the retail sale of fruit and vegetables.

15 The terms "standard" and "requirement" are not defined in the PD Act or in the Scheme. They are ordinary, non-technical English words and are to be given their normal and common meanings. In determining the meaning of a similar provision of a local planning scheme to cl 4.20.1 of TPS 2 in O'Donovan and Town of Vincent [2005] WASAT 120, I set out, at [37] and [38], the most apposite dictionary meaning of the noun "standard" and the dictionary definition of the verb "require". I then observed, at [39], as follows:

"Thus, a 'standard' is a level which is regarded as normal, adequate or acceptable, and a 'requirement' is something which is demanded, obligatory or needed. It is, therefore, apparent that these terms refer to something which regulates an aspect of a permitted use or development, not something which absolutely prohibits, or does not permit under any circumstances, a particular type of use or development."

16 In this case, the City contends that the words in the Additional Use column of Sch No 2 define the only permissible form of retail sales which are permissible at the site and therefore constitute a prohibition upon any development which involves the retail sale of any goods which are not specified in that column. In contrast, the applicants contend that the requirement stated in the Special Conditions column of Sch No 2 that "no goods other than those specified in paragraphs (a) and (b) shall be sold" is a "standard or requirement" which regulates an aspect of permitted use with the result that their application is capable of approval.

17 I will set out the principal arguments advanced by the parties before considering the preliminary issue in the context of those arguments.

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Parties' submissions

18 The City submits that the particular goods specified in the Additional Use column of Sch No 2 of the Scheme "were intended to define and strictly limit the retail use permitted on [the site]". The City submits that this is evident from two sources.

19 First, the Scheme provisions do not allow a "shop" or some other unlimited, or at least more broadly defined, retail use on the site. The permissible additional use does not contemplate the possibility of the sale of any items other than those specifically mentioned, and in the manner mentioned. The sale of other goods by retail is prohibited. This is reinforced by the words in cl 3.3.1 that the land specified in Sch No 2 "may be used for the specific use or uses that are listed" (emphasis added).

20 Second, the Scheme amendment report concerning the introduction of the precursor in an earlier town planning scheme to the relevant additional use provision stated that:

"The purpose of this proposed Amendment is to endorse Council's conditional approval dated 4 April 2000 to commence development for the display and sale of market garden produce under the Model Scheme Text definition of 'Rural Pursuit' being the predominant land use for Lot 299 Kerosene Lane, Baldivis, and add an 'Exclusive Use Clause' amending the Scheme to allow proposed and nominated produce items grown or produced and packaged by others, at other locations, that can be considered as an 'AA Use' (a use that is not permitted unless approval is given by Council)." (Emphasis added.)

21 The City submits that the "requirement" in the Special Conditions column does not regulate an aspect of a permissible development as the only permissible development on the site is its use in accordance with the specific use in the Additional Use column. It follows that the provision is not a "standard or requirement" capable of variation under cl 4.20.1 of the Scheme. The "requirement" "simply restates what the additional use column requires in any event" and is "effectively redundant, except to clarify that which might otherwise have potentially been unclear".

22 The applicants make two alternative submissions in support of their contention that the "requirement" in the Special Conditions column is a "standard or requirement" for the purposes of cl 4.20.1.

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23 The applicants' first submission is that the principles relating to non-conforming/existing uses stated by the High Court of Australia in Shire of Perth v O'Keefe & Anor (1964) 110 CLR 529 apply to the Additional Use specified in Sch No 2 of the Scheme. Accordingly, the applicants submit that "minor changes may be made to the use to which a property is put without taking that use outside the permitted use for that property, providing that the use is in substance the same as the permitted use and there has been no change to the essential nature of the use".

24 After the parties had each filed their submissions and submissions in reply, the applicants alerted the Tribunal to the recent decision of the Court of Appeal in Re Shire of Mundaring; ex parte Solomon & Ors [2007] WASCA 132 which was delivered on 28 June 2007. The parties then each made submissions in relation to that decision. The applicants contend that the Court of Appeal has confirmed that decisions on non-conforming/existing use "should be applied in determining whether the manner of use of particular land falls within the permitted use for that land". The City contends that the Court of Appeal's decision does not have general application, or at least does not have application to the facts of the present case.

25 The applicants' alternative submission identifies textual indications in the Scheme which suggest that the "requirement" is a "standard or requirement" amendable to cl 4.20.1 of the Scheme. The three principal textual indications identified by the applicants are:

• The words in cl 3.3.1 that "the land specified in Schedule No.2 may be used for the specific use or uses that are listed ... subject to the conditions set out in Schedule No.2 with respect to that land" (emphasis added) which "make it clear that 'Additional Use' conferred on specified land and 'Special Conditions' applicable to [that] 'Additional Use' must be construed together and that both must have some effect";

• The word "requirement" in the Special Conditions column; and

• The use of the word "conditions" in cl 3.3.1 and the column heading "Special Conditions" in Sch No 2.

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Does cl 4.20.1 of TPS 2 enable approval of the proposed development?

26 I consider that the applicants' first submission is incorrect, while their second submission is substantially correct.

Non-conforming/existing use principles argument

27 The correct approach to the determination of the scope of the protection afforded by non-conforming/existing use provisions was stated by Kitto J, with whom Owen J agreed, in Shire of Perth v O'Keefe & Anor at 534 as follows:

"But at the outset it is necessary to observe that the 'existing use' by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. 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, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date."

28 The principles relating to non-conforming/existing uses are not generally relevant to land use classification under a planning scheme for the purpose of determining whether a proposed development can be or should be approved, and may not be relevant at all except in very particular and specific circumstances such as those considered in ReShire of Mundaring; ex parte Solomon & Ors. This is because the principles relating to non-conforming/existing uses were developed by the courts in a different, although related context to land use classification and their application involves a different process to land use classification.

29 Non-conforming/existing use provisions of planning instruments are "designed to preserve and protect existing rights" and therefore "ought to be liberally construed and not restricted by dubious implications drawn from words used in other clauses directed to a different subject matter": Parramatta City Council v Brickworks Limited (1972) 128 CLR 1 at 25 per Gibbs J; see also Dorrestijn v South Australian Planning

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Commission (1984) 59 ALJR 105 at 108 per Mason ACJ, Deane and Dawson JJ. In North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 Kirby P, with whom Samuels and Priestly JJA agreed, said at 59 that "the general approach to be taken is one of construing the use 'broadly' ... [or] liberally such that confining the user to precise activity is not required". McHugh JA, with whom Hope and Samuels JJA agreed, observed in Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310 that the courts have refused "to categorise an 'existing use' so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless".

30 It is apparent from these and other decisions in relation to non-conforming/existing uses that the principles stated by the High Court in Shire of Perth v O'Keefe & Anor were developed in order to ensure that what have been regarded by the courts as non-conforming/existing use "rights" are not rendered "valueless" by changes in the way in which a property is used over time. The use is therefore to be broadly or liberally construed. In contrast, an applicant seeking development approval under a planning scheme generally has no right to an approval, but merely a privilege to apply for approval where the proposed development can be granted consent under the instrument.

31 Furthermore, land use classification under a planning instrument involves a process of statutory interpretation and application which is quite different to the process involved in characterisation or categorisation of a non-conforming/existing use. As is apparent from Gibbs J's words in Parramatta City Council v Brickworks Limited quoted earlier, the courts have said that non-conforming/existing use provisions should not be restricted by implications drawn from statutory planning provisions. Characterisation of a non-conforming/existing use involves a factual town planning assessment. In contrast, land use classification under a planning instrument involves the interpretation and application of a statutory provision, having regard to other provisions of the instrument, although in a town planning context.

32 The decision of the Court of Appeal in Shire of Mundaring; ex parte Solomon & Ors is not authority for the broad proposition advanced by the applicants. That decision concerned the validity of a development approval for an aged and dependent persons' dwelling development in Mundaring. The site was located in a site-specific special purpose zone. McLure JA, with whom Steytler P and Pullin JA agreed, held at [30] that the description of the specific and permissible uses in the

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site-specific special purpose zone was formulated by reference to a detailed development proposal that was required before the site could be zoned. In that context, her Honour accepted that the meaning of the term "rest home" in the Scheme would be informed by the proposed development that resulted in the change in zoning of the site which included a continuation of its then existing use as a rest home. Her Honour then said:
"However, I see no justification for confining that use to the same activities actually carried out by the then existing rest home. The authorities on non-conforming/existing uses provide guidance in this respect: see Re Shire of Carnarvon; ex parte Humphry [2005] WASCA 182 at [27]-[34]."

33 Clearly, her Honour did not state as a general proposition that the non-conforming/existing use principles provide guidance in relation to land use classification under a planning scheme. Such a proposition would not be open in light of the significant differences in context and process between non-conforming/existing use assessment, on the one hand, and land use classification under a planning scheme, on the other hand. Rather, her Honour's observation was restricted to the very particular and specific circumstance of determining the meaning of "rest home" in a site-specific special purpose zone which was apparently created in the context of a proposed development which included the continuation of its use for that purpose.

Textual indications argument

34 "The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole": Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320 per Mason and Wilson JJ.

35 There are four textual indications in the Scheme which indicate that the intention is not to define the only permissible form of retail sales on the site by the goods specified in the Additional Use column, but rather to define the specific listed permissible use in a more generic way, and to treat the specification as a standard or requirement that is amenable to cl 4.20.1 of the Scheme.

36 First, cl 3.3.1 of TPS 2 states that the land specified in Sch No 2 "may be used for the specific use or uses that are listed ... subject to the conditions set out in Schedule No.2" (emphasis added). The recognition

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in this clause that the specific use or uses that are listed are subject to the conditions set out in Sch No 2 indicates that the conditions may inform the definition of the specific use or uses that are listed. In this case, having regard to the condition/requirement set out in Sch No 2 – that no goods other than those specified in par (a) and par (b) shall be sold – the specific use or uses that are listed is not a fruit and vegetable shop which sells fruit and vegetables, and incidentally sells only eggs, bread, pastries, milk, cheese, poultry, preserves, confectionary and non-alcoholic refreshments, but rather a fruit and vegetable shop which incidentally sells other food products. The site may be used for this specific use subject to the condition that no goods other than eggs, bread, pastries, milk, cheese, poultry, preserves, confectionary and non-alcoholic refreshments shall be sold. This condition involves a "requirement", that is something which is demanded, obligatory or needed. It is something which regulates an aspect of a permitted use or development, not something which absolutely prohibits, or does not permit under any circumstances, a particular type of use or development.

37 Second, the special conditions column states that "[t]he use of the land for the purposes referred to in paragraphs (a) and (b) shall conform to the ... requirement ... [that] no goods other than those specified in paragraphs (a) and (b) shall be sold". These words clearly contemplate that the goods specified in the Additional Use column do not form part of the definition of the permissible land use, but rather involve a requirement for carrying out the permissible land use. The use of the land for the purposes referred to in the Additional Use column is consequently a more generic category of retail sales than the sale of the specific food items listed in that column.

38 Third, as I observed in a similar context, in Spectator Investments Pty Ltd and City of Joondalup [2005] WASAT 299 at [22]-[23], the term "condition", which is used in cl 4.20.1 and in the fourth heading in Sch No 2, is relevantly synonymous with "standard or requirement".

39 Fourth, the Special Conditions column uses the word "requirements". Unless the context indicates otherwise, the Tribunal would interpret the same word used in two different places in a planning instrument as having the same meaning. The context does not indicate that the word "requirements" bears a different meaning in the Special Conditions column to its meaning in cl 4.20.1 of the Scheme. Indeed, it is common ground that the "requirement" in par (i) of the Special Conditions column – that the floor area of any building or buildings used for the purposes referred to in the Additional Use column shall not exceed

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234 square metres – is a "standard or requirement" for the purposes cl 4.20.1. The word "requirements" in the Special Conditions column indicates that the provisions which follow are amenable to variation under the Scheme.

40 The difficulty with the City's submission is that it effectively ignores the reference to the conditions in cl 3.3.1 and the relevant "Special Condition" itself. It is appropriate that the Tribunal seek to give effect to all relevant provisions of the Scheme, particularly given the reference to the conditions in cl 3.3.1. The Tribunal would not generally regard a provision of a planning scheme as redundant unless that conclusion is necessary to give effect to the purpose or object of the legislation.

41 The apparent purpose or object of the relevant "Additional Use" provision in Sch No 2 is to enable the site to be used as a fruit and vegetable shop and for the ancillary retailing of other food products. The use as a fruit and vegetable shop is apparent from the reference to the retail sale of fruit and vegetables, and the ancillary retailing of other food products is apparent from the reference to incidental use and the common characteristic of the listed goods, namely that they are all food items.

42 The (former) Scheme amendment report, although relevant, should be treated with some caution as there are differences between the former and the current Schemes. In any case, the report is equivocal as it says that the purpose of the amendment was to allow proposed and nominated items to be approved, not to prohibit other food items.

43 Finally, the interpretation of cl 3.3.1 and Sch No 2 to which the Tribunal has arrived does not lead to the result, contemplated in the City's submissions, that the shop at the site can "develop into uses akin to a large scale shop or supermarket". The Additional Use column provides that in order for the retail sale of a product to be permitted on the site, the sale of that product must be an incidental use to the use of the site for the retail sale of fruit and vegetables. This restricts retail use of the site to a single dominant use, namely a fruit and vegetable shop. Furthermore, as noted earlier, the apparent purpose or object of the relevant part of Sch No 2 is to permit approval of a fruit and vegetable shop with ancillary retailing of other food products. These limitations would preclude a large scale general shop or supermarket.

Conclusion

44 On the proper interpretation of the Scheme, the goods that are expressly listed in the Additional Use column of Sch No 2 are not

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definitional of a permissible type of land use. Rather, the requirement that no goods other than those specified in the Additional Use column shall be sold is a standard or requirement prescribed under the Scheme which can be varied under cl 4.20.1.

45 However, it is apparent that the intention of the Scheme is to limit the range of goods that can be sold at the site to food products and to require that the retailing of non-fruit and vegetable food products be restricted to an incidental use to the use of the site as a fruit and vegetable shop.

46 It follows that the answer to the preliminary issue set out at [9] above is that cl 4.20.1 of TPS 2 enables the Council to grant approval to the applicants' proposal to sell by retail items additional to those listed in the relevant part of the Additional Use column of Sch No 2, provided that the retail items additional to those listed in that part are restricted to an incidental use to the retail sale of fruit and vegetables, except for the sale of nursery plants which are not food products and which are, therefore, not contemplated by the additional use provision.

Orders

47 The Tribunal makes the following orders:

1. The preliminary issue identified at par [9] of the Tribunal's reasons for decision dated 3 August 2007 is answered as follows:
"Yes, except for the sale of nursery plants, provided that the retail items additional to those listed in that part of the Additional Use column of Sch No 2 of the City of Rockingham Town Planning Scheme No 2 which applies to Lot 299 Kerosene Land, Baldivis are an incidental use to the retail sale of fruit and vegetables."
2. The proceedings are listed for further directions at 4 pm on 8 August 2007.

I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR D R PARRY, SENIOR MEMBER